Distance selling in the case of purchase of goods in the retail business?

The Court of Justice of the European Union (EuGH) was presented with the legal question of whether a consumer domiciled in Austria, who purchased a vehicle at a car dealership in Hamburg, may sue it before an Austrian court.

In the legal case presented to the EuGH, an Austrian citizen had brought an action in Austria against a Hamburg car dealership because the car had defects. In doing so, the Austrian buyer had not used distance communication means such as email, telephone, fax or the Internet to acquire the vehicle, but had purchased the car at the dealer's premises in Hamburg. In the present case, however, the parties had initially communicated via email after the buyer had discovered the car on the Internet on the dealer's website. The car dealership applied for dismissal of the action on the grounds that the court lacked jurisdiction, as, in the opinion of the Hamburg dealer, the Distance Selling Act did not apply in this case.

Court decision

In its judgment of 06.09.2012 – Az. C-190/11 the Court of Justice of the European Union (EuGH) affirmed the jurisdiction of the Austrian courts.

A consumer may pursue a merchant in the country in which that merchant is domiciled in court even if the underlying contract was not concluded via distance communication means (email, telephone, fax, the Internet, etc.).

However, it is a prerequisite that the seller's offer was accessible at least also in the buyer's country of domicile via the Internet or other distance communication means.

A business operator domiciled in another member state may be sued before the home court of a foreign buyer, provided that the business operator carries on professional or commercial activity in the member state of the consumer or directs it in any way towards that member state. The offer of cars via the Internet also on the Austrian market satisfies these conditions.

Conclusion

According to this judgment, consumers may pursue defects in their home countries, provided that the business operator's offer in that country was made at least also via distance communication means such as the Internet.