Advocate General Bobek: Max Schrems may sue Facebook Ireland before Austrian courts

On the subject of these legal proceedings, Mr Schrems has published two books, delivered lectures (sometimes for remuneration), registered numerous websites (blogs, online petitions, crowdfunding actions for legal proceedings against the Defendant), obtained various awards and founded the Verein zur Durchsetzung des Grundrechts auf Datenschutz (Association for the enforcement of the fundamental right to privacy). He has assembled a team of 10 individuals with a core of five to support him in ‘his campaign against Facebook’.

In his Opinion, AG Bobek proposes that the court answer the Oberster Gerichtshof, first, that the carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims do not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes’. Therefore, it would appear that Mr Schrems can be considered a consumer with regard to his own claims arising from the private use of his own Facebook account. It is however for the Oberster Gerichtshof to verify this.

According to the Advocate General, consumer status as a general rule depends on the nature and the aim of the contract at the time it was concluded. An ulterior change in use may be taken into account only in exceptional scenarios. In cases where the nature and the aim of the contract are both private and professional, the consumer status may still be retained if the professional ‘content’ can be considered as marginal. Knowledge, experience, civic engagement or the fact of having reached certain renown due to litigation do not in themselves prevent someone from being a consumer.

The Advocate General proposes to answer, second, that a consumer who is entitled to sue his foreign contact partner in his own place of domicile, cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other places of the same member state, in other member states or in non-member states’.

According to the Advocate General, the rules in question clearly show that the jurisdictional consumer privilege is always limited to the concrete and specific parties to the contract. It would be incompatible with these rules to allow a consumer to also make use of this privilege for claims assigned to him by other consumers purely for litigation purposes.Such an extension would, in particular, allow to concentrate claims in one jurisdiction and, for collective actions, to choose the place of the more favourable courts, by assigning all claims to a consumer domiciled in that jurisdiction. It could lead to unrestrained targeted assignment to consumers in any jurisdiction with more favourable case-law, lower costs or more generous jurisdictional aid, potentially leading to the overburdening of some jurisdictions.

Advocate General Bobek admits that collective redress serves the purpose of effective judicial consumer protection. If well designed and implemented, it may also provide further systemic benefits to the judicial system, such as reducing the need for concurrent proceedings. However, it is not for the court to create such collective redress in consumer matters, but eventually for the Union legislator.