head of the customer-consumer, may, in most cases, be subject to jurisdiction identified on the basis of the consumer’s residence or domicile, if the restaurant’s activity takes place in the same State in which the consumer is domiciled. Instead, it will follow the general rules on jurisdiction28, in the event that the consumer residing or domiciled in a member state intends to bring a claim for damages against a caterer based in another member state (e.g., for an intoxication reported during a vacation), unless those criteria of attraction provided for in Article 17 of Reg Brussels I-Bis are present, such as “direction of activity” to the consumer’s home state29, allowing him to bring the dispute before the judicial authority of his domicile. Then, if, as a result of intoxication, a criminal tort investigation is also opened against the restaurant manager, the resulting action for damages can more conveniently be brought before the authority with jurisdiction over the criminal case, thus the one in the place where the tort occurred30 or, in any case, according to Article 7(1)(1/a) of the Regulations, where the contractual obligation was to be performed. Different is the case when the consumer has suffered damage in the context of the performance, at a particular restaurant, of a service included in a tourist package. In this situation, the consumer - injured party can turn to the organizer of the tourist package, with a form of liability, which according to the Italian Supreme Court, also involves jointly and severally the travel agency that materially sold the organized tourist package31. 28 According to Article 4 of the Brussels I-Bis Regulation “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State”. 29 On this point, the European Commission, in the PRACTICAL GUIDE - JURISDICTIONAL COMPETENCE AND APPLICABLE LAW FOR INTERNATIONAL CONTRACTS CONCLUDED BY CONSUMERS (2018) and the Court of Justice of the European Union with several rulings have developed a casuistry to determine when the activity of a commercial enterprise or professional is “directed” to an EU Member State: Among the criteria are the international nature of the activity, the use of a language other than that of the State of establishment with the possibility of booking and confirming the booking in the foreign language, the indication of telephone numbers together with an international dialling code, the use of a domain name other than that of the Member State in which the trader is established, the mention of an international clientele, etc. According to the Italian Court of Cassation, called upon to establish the application of this criterion to a relationship between a German citizen and an Italian law firm, which was seeking payment of its fee on the basis of Italian law and before the Italian court, it is necessary to show that the professional had manifested the intention to establish relations with consumers from one or more Member States ‘including the territory in which the consumer is domiciled’. This determination must be made on the basis of the case law of the Court of Justice of the European Union, in particular by considering, among other parameters, whether the lawyer intended to deal with consumers residing in other Member States including the one on whose territory the consumer is domiciled (Corte di Cassazione, Civil United Sections n. 15364/2024). 30 See also Art. 7 par 1, n. 3, Bruxelles I-Bis Reg. 31 Corte di Cassazione, Civil Section III, Ruling n. 1717/2023. According to the Court, in the package travel contract, the travel agency’s activity is not limited to selling, but implies an assumption of responsibility that requires 164 FILIPPO MORESCHI
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