Previously published on EU Law Live.
A. An unwritten condition for the application of the Brussels I bis Regulation
Article 1 of the Brussels I bis Regulation states that this instrument only applies to ‘civil and commercial matters’. There is another main prerequisite for its application that cannot be found mentioned in any provision of the Brussels I bis Regulation: it only applies to cases with an ‘international element’. This was something the CJEU determined for first time in the landmark judgment C-281/02, Owusu. This case was followed by other judgments in which CJEU addressed the international element. The most recent of these cases is C‑774/22, FTI Touristik.
B. The factual background of the case
The roots of C774/22, FTI Touristik, can be traced to a travel package contract between JX, a German individual domiciled in Nuremberg, and FTI Touristik, a tour operator domiciled in Munich. JX could not reach the trip destination because he did not satisfy the necessary visa requirements. In JX’s view, this would not have occurred had FTI Touristik provided him with the necessary information concerning the entry visa requirements. For this reason, JX filed a claim for damages against FTI Touristik before the local court of Nuremberg. According to German law, this court would not have jurisdiction to decide on the claim. The only ground for considering this court jurisdictionally competent is the Brussels I bis Regulation. More concretely, Article 18(1) establishes that in consumer claims, jurisdiction lies in the place where the consumer is domiciled.
However, FTI Touristik considered that the Brussels I bis Regulation did not apply to this case, and thus it could serve to establish the jurisdiction. Given that both parties are domiciled in Germany, and that the court seized with the claim is also in this country, the required international element that conditions the applicability of the Brussels I bis Regulation was absent. The only possible international element to be considered would be the trip destination is a third country. Nonetheless, based on the existing German case law, that would be not sufficient to determine that there is the required international element.
Unable to foresee a clear solution, the local court of Nuremberg decided to submit the following question to the CJEU:
In appearance, the referred question is about whether it is possible to use the Brussels I bis Regulation to determine the territorial jurisdiction in a consumer-related case. Nonetheless, to solve that point, the CJEU was required to first clarify whether the international element is present or not, and thus whether the Brussels I bis Regulation applies or not. The core of the CJEU’s reasoning in the judgment was devoted to such analysis.
C. The CJEU’s reasoning
The CJEU approached the question of the international element from two angles. First, it examined whether the fact that both parties have their domicile in the Member State of the court seized with the claim implied that there is no international element. In this regard, the CJEU acknowledged that while the parties’ domicile or habitual residence could serve to establish the international dimension of the case, this is not the only factor (para. 28). Furthermore, the CJEU refers to Article 18(1) of the Brussels I bis Regulation, which expressly states that the special jurisdictional forum for consumers applies ‘regardless of the domicile’ of the non-consumer party. This means that in a consumer-related claim, both could be domiciled in the Member State. The CJEU also drew a difference between the cross-border element in the European Order for Payment (EOP), which is exclusively determined by the parties’ domicile, from the international element of the Brussels I bis Regulation which is broader, and other factors can serve to establish it (para. 36).
The second aspect considered by the CJEU was whether the trip destination to a third country was or was not sufficient to establish the international element. As AG Emiliou remarked in his Opinion on the case, the trip’s destination is also the place ‘(most of) the services were provided or should have been provided to the traveller’ (para. 43). The place where ‘contractual obligations are supposed to be performed’ can raise issues to establish the jurisdiction. For that reason, the CJEU found that it ‘fulfils the condition of the international element required for the dispute to fall within the scope of Regulation No 1215/2012’ (para. 30). The fact that the trip destination was to a third country and not to a Member State is found to be irrelevant by the CJEU. What is fundamental for the CJEU is that the ‘the destination of the trip’ is an ‘easy element to check and making the applicable jurisdictional regime predictable for the parties’ (para. 34).
Having determined that the Brussels I bis Regulation applied to the case, the CJEU proceeded to examine whether this could serve to establish the territorial jurisdiction of the court. Here, the CJEU relies on the literal interpretation of Article 18 that refers to the ‘the courts for the place where the consumer is domiciled’. Since it does not refer to the courts of a ‘Member State’ but the courts of a ‘place’, it seems to establish not only the international but also the territorial jurisdiction. Furthermore, since Article 18 was introduced to protect consumers as weaker parties, this provision also refers to the court that is more easily accessible to consumers, this being court close to where they live. Therefore, based on the literal and teleological interpretation of Article 18, this provision also provides for the territorial jurisdiction of consumer-related claims.
D. The impact of FTI Touristik on the interpretation of the international element
Overall, the judgment in C774/22, FTU Touristik aligns with what the CJEU held in previous cases on the international element. It followed the same broad approach towards the notion of the international element that it had adopted before. This was not the first case in which the international dimension case depended on an aspect located in a third country. Case C-281/02, Owusu concerned a tort-related claim brought before a British court, in which both parties were domiciled in the United Kingdom, and the tort occurred in Jamaica. For the CJEU, the location of the tort place in a third country was sufficient to satisfy the international element. Based on this previous judgment, it was unlikely that the CJEU would have reached a different outcome in the present case. Case C-774/22, FTU Touristik added the consumer element.
Perhaps Case C774/22, FTU Touristik’s main contribution is that it established a clear line of separation between the international element of the Brussels I bis Regulation and the narrower ‘cross-border element’ of the EOP. In previous judgments, the CJEU had used the cross-border element of the EOP to determine the international element of the Brussels I bis Regulation, without expressly indicating the broader scope of the latter (Joined Cases C-267/19 and C-323/19, Interplastics, para. 35). Such an approach was openly criticised by A-G Emiliou, who urged ‘the Court to refrain, in the future, from referring to’ the cross-border element of the EOP when assessing the international element of the Brussels I bis Regulation (para. 36).
Compared to prior CJEU case law on the international element, the judgment in Case C‑774/22, FTU Touristik might seem quite succinct. However, from the German perspective, this decision means a turning point in the long-standing interpretation that some German courts made of the international element in similar cases to the one in C‑774/22, FTU Touristik. For instance, in 2020 the Regional Court of Mainz considered that ‘the international element required for the applicability of the Brussels Regulation is not given if the facts of the case have a different connection to the foreign country, for example if both parties are resident in the same Member State and there is only a foreign connection due to a destination abroad’ (LG Mainz (3. Zivilkammer), Beschluss vom 10.06.2020 – 3 O 105/18). Even after the preliminary reference of FTU Touristik was already pending, the local court of Ludwigsburg reiterated that the travel destination is not a sufficient international element (AG Ludwigsburg, Prozessurteil vom 27.03.2023 – 7 C 88/23). Thanks to Case C‑774/22, FTU Touristik, German consumers will be better protected under the Brussels I bis Regulation when filing a claim against German travel operators, and the only international element is the travel destination.
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