Guidance By The Court Of Justice Of The European Union On Advertising Issues

Author:Dr. Felix Hofer
Profession:Studio Legale Hofer Lösch Torricelli

Over the last years the Court of Justice of the European Union (CJEU) frequently had to provide guidance on various legal aspects impacting on advertising. A news blurb - posted earlier this month - reports about some of these decisions, released in 2013. Thus there are a number of additional CJEU decisions with important indications, which marketers promoting their products throughout the territory of the European Union should bear in mind. (a) Applicable Law and Jurisdiction. It is definitely no secret that today many marketing campaigns are conceived for an international target public, not only by big multinational companies, but also by small and medium players, intending to reach out, with their commercial communication, to a cross-border - if not global - audience. When performing such cross-border campaigns, specifically directed to distinct geographic areas, marketers are usually aware of the fact that they may need to care about legal implications deriving from domestic provisions in the targeted countries. Their awareness about such potential implications is generally not so strong, when their promotions and offers are not specifically - and knowingly - targeted to foreign customers, but can be simply accessed and reached by a foreign audience. The question therefore is: when are marketers at risk of becoming subject with their promotional campaigns to EU Law or to domestic law of the Union's member states? Approached by an Austrian Highest Instance Court, the CJEU had to look into this problem and offered (in its judgment dated December, 7th, 2010, Grand Chamber, relating to joint cases C-585/08 and C-144/09) some enlightening criteria. The factual premise of the first case are to be found in a "voyage by freighter from Trieste (Italy) to the Far East", booked on the Internet through the intermediary services of a travel organizer. The latter promoted and described the trip on its website and indicated that "... there was a fitness room, an outdoor swimming pool, a saloon and video and television access on the vessel. Reference was also made to three double cabins with shower and toilet, to a separate living room with seating, a desk, carpeting and a fridge, and to stopping at ports of call from which excursions into towns could be undertaken". Unfortunately, such described conditions were only partially met by the vessel's actual traveling characteristics. The person who had booked the trip therefore sought for price reimbursement. In the second case more or less identical issue arouse with respect to an on-line booking of a room, where the services provided did not appear to be in line with the description offered on the hotel's website. In the context of these lawsuits legal issues on jurisdiction and applicable law arouse and the CJEU was called in to assess (among other issues) whether "... the fact that an intermediary's website can be consulted on the internet is sufficient to justify a finding that activities are being 'directed' [to the Member State of the consumer's domicile].. " (making that State's national provisions on jurisdiction relevant). To the purpose the CJEU had to consider EU Regulation No. 44 of 2001 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) and specifically the provision establishing the jurisdiction of the place of consumer's domicile when "... the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities" (so Article 15/1/c of the Regulation). It also felt that "the question which this raises is whether intention on the part of the trader to target one or more other Member States is required and, if so, in what form such an intention must manifest itself" being that such ".. intention is implicit in certain methods of advertising" (so Section nos. 64 and 65 of the judgment). In the following Sections (from no. 66 to no. 69) the Court passes on to offering indications on the definitions of 'advertising' and 'activities directed to'. On the first aspect the Court: Reminds its consolidated case-law according to which ".. 'advertising' and 'specific invitation addressed' within the meaning of Article 13 of the Brussels Convention cover all forms of advertising carried out in the Contracting State in which the consumer is domiciled, whether disseminated generally by the press, radio, television, cinema or any other medium, or addressed directly, for example by means of catalogues sent specifically to that State, as well as commercial offers made to the consumer in person, in particular by an agent or door-to-door salesman ..", Explains that "the classic forms of advertising .... involve the outlay of, sometimes significant, expenditure by the trader in order to make itself known in other Member States and they demonstrate, on that very basis, an intention of the trader to direct its activity towards those States" , where such " .. intention is not ... always present in the case of advertising by means of the internet. Since this method of communication inherently has a worldwide reach, advertising on a website by a trader is in principle accessible in all States, and, therefore, throughout the European Union, without any need to incur additional expenditure and irrespective of the intention or otherwise of the trader to target consumers outside the territory of the State in which it is established", and Concludes that "it does not follow, however, that the words 'directs such activities to' must be interpreted as relating to a website's merely being accessible in...

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