Class 6 Flashcards
(12 cards)
what are the protected categories?
Insured
Consumers
Employees
Specificity lies in their position as claimant, rather than
defendant
All 3 categories, as exceptions to A4, need to be applied both restrictively but also with their purpose in mind
A position of inequality is presumed, hence PCs.
Consumers
May bring proceedings in the MS in which the other party is domiciled
+
The courts for the place where the consumer is domiciled\
Against:
Only in the courts of the MS in which the consumer is domiciled
Consumer contract
A contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession
Exclusion consumer contracts
A contract of transport
other than a contract which for an inclusive price, provides for a combination of travel and accomodation.
Directing activities to a Member State (consumer)
Pammer Alpenhof:
Summary – how to read ‘directed at’
The following matters, the list of which is not exhaustive, are capable of
constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile, namely the international
nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists.
On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.
When can someone depart from the provisions of a protected categorie (consumer)
There has to been an agreement.
which is entered into after the dispute
which allows the consumer to bring proceedings in courts other than those indicated in this section
OR
bot parties are at the time conclusion of the contract domiciled or habitually resident in the same MS, and which confers jurisdiction on the courts of that MS.
Employer/employee
an employer may be sued in the courts of the MS where he is domiciled
OR
in another MS:
where the employee habitually carries out his work
IF the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee was situated
an employee can only be sued in the courts of the MS in which he is domiciled.
When can someone depart from the provisions of a protected categorie (Employee)
Only by agreement
which is entered into after the dispute has arisen
OR
which allows the employee to bring proceedings in courts other than those indicated in this section.
individual contracts of employment
Shenavai:
certain particularities they create a lasting bond which brings the worker to some extent within the organizational framework of the business of the undertaking or employer, and they are linked to the place where the activities are pursued, which determines the application of mandatory rules and collective agreements.
Holterman:
that the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he receives remuneration
Habitually carries out his work
Osacar v Ryanair:
Thus, in such circumstances, the concept of ‘place where the employee habitually carries out his work’ enshrined in Article 19(2)(a) of the Brussels I Regulation must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer
to determine specifically that place, the national court must refer to a set of indicia.
Those courts must, in particular, determine in which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found.
Choice of court
Agreements are disregarded in case of A24 exclusive jurisdiction and they are restricted in case of a protected category
When they are valid, they are exclusive (unless parties agree otherwise)
Parties domiciled outside of the EU can make a valid choice for a court within the EU
choice of court and non parties
= privity of choice of court
“According to the doctrine of privity of contract, only parties to a choice of court agreement are subject to the rights and obligations arising from it”.
exception in MAERSK:
if a third party surrogates in the position of another party who was bound by a choice of court agreement, the third party will be bound by it as well.
