General designs
The consumer is the person who makes the booking for private purposes (vacation). However, anyone who makes a booking for the purpose of a business trip, for example, is booking for business purposes (see brochure “Applicable Law for Hotel Bookings on the Internet between an Austrian Hotelier and a Foreign Entrepreneur as Hotel Guest (B2B)”).

The answer to the question of which law applies to hotel bookings on the Internet if the hotelier is domiciled or has its registered office in Austria and the booking hotel guest is a consumer depends on several criteria.
First of all, it is important to note that Austrian law applies to hotel bookings made by consumers who, like the hotelier, are domiciled in Austria, since this is not an international situation.
If, however, the consumer is domiciled outside of Austria, it matters whether he or she

• from an EU country or
• an EEA State or
• originates from a third country.

The following comments follow this subdivision.

It is also important whether the Regulation on the Law Applicable to Contractual Obligations (Rome I Regulation) applies, whether a choice of law has been made, and before the court of which state a lawsuit would take place (place of jurisdiction). It should be noted, however, that agreements on the place of jurisdiction are generally not possible vis-à-vis consumers. As a result, the hotelier can bring an action against a consumer only in the consumer’s state of residence. However, the consumer has the choice to sue the hotelier in the state where the hotelier is domiciled or has its registered office or in his or her own state of domicile.
This is because within the EU it is sufficient for the hotelier to direct his commercial activity to that EU state in which the consumer is domiciled. According to the European Court of Justice (ECJ), the mere existence of a website with the possibility of accessing it from the consumer’s home country does not constitute “alignment”. Further indications must be added, e.g. indication of
Directions from other member states to the own business, indication of another language or currency than the own with the possibility of booking and booking confirmation in this other language, indication of telephone numbers with international area code, payments to search engine operators to be listed in other countries, domain names with other country names or neutral endings (.com or .eu). According to the ECJ, it is up to the respective national court to examine in each individual case whether such criteria are present in sufficient numbers, but for hoteliers this generally means that it is very possible to speak of “alignment”. Due to a parallel provision, this also applies to Switzerland and the EEA states Norway and Iceland, but not to Liechtenstein, because Liechtenstein has not acceded to the corresponding international treaties.
The country of origin principle of the E-Commerce Act (ECG) is not relevant because it does not apply to consumer contracts. The UN Convention on Contracts for the International Sale of Goods does not apply either, as it presupposes a transaction between entrepreneurs.
To simplify, one can say by way of introduction:
For a hotelier domiciled in Austria, the following shall apply in relation to its foreign hotel guests originating from an EU state, if such guests
Consumers are:

• any litigation takes place before the court in the consumer’s home country
• unless otherwise agreed, Austrian law shall apply.

1. hotel booking between an Austrian hotelier and a hotel guest who is a consumer domiciled in another EU state

1.1. Austrian court

Although the Rome I Regulation contains a special rule for consumer contracts, it includes some exception provisions. In particular, contracts for the provision of services are excluded if the services owed to the consumer are provided exclusively in a country other than the country in which the consumer has his habitual residence. This is usually the case for accommodation services.

Accordingly, a hotel booking made by a non-Austrian EU consumer in an Austrian hotel is not normally covered by this
consumer contract provision of the Rome I Regulation.

However, if the contract with the consumer contains a transport and accommodation service combined in a package price (package tour), the special rule of the Rome I Regulation for consumer contracts does apply (exception to the exception). Subsequently, however, the more frequent case of a mere hotel booking is assumed.

• Without choice of law
  According to the Rome I Regulation, there is the possibility of a free choice of law, i.e. the contracting parties can in principle determine themselves which law is to apply to the contract. If no choice of law is made, the general provisions of the Rome I Regulation shall apply to the hotel booking.
  According to these, the law of the service provider’s country of residence applies to services provided exclusively outside the consumer’s country of residence. For the Austrian hotelier, this means that Austrian law applies, which means that the Austrian Consumer Protection Act (KSchG) also applies. This essentially means that the question of the validity of clauses in general terms and conditions (GTC) is to be assessed according to Austrian law (above all §§ 864a, 879 para. 3 ABGB as well as § 6 KSchG).
• With choice of law
  If a choice of law has been made, a distinction must also be made as to whether EU/EEA law (i.e. the law of an EU/EEA state) or another law (non-EU/EEA law = third state law) has been chosen. If Austrian law is chosen, this shall apply including the Austrian consumer protection provisions. If EU/EEA law other than Austrian law is chosen, the chosen law shall apply in principle in the case of Austrian jurisdiction, but nevertheless § 13a para 2 KSchG (regulations concerning the validity of clauses under § 6 KSchG and §§ 864a and 879 para 3 ABGB) shall apply. If a non-EU/EEA law (third country law) is chosen, this is decisive. If the place of jurisdiction is in Austria, however, the entire Section 13a KSchG applies, i.e. its Paragraph 1 and Paragraph 2. While Section 13a Paragraph 2 KSchG essentially only deals with the prohibition of immoral clauses, Section 13a Paragraph 1 KSchG goes further and also makes Austrian law (ABGB and KSchG) applicable, for example, to questions of warranty and the validity of the contract in general.

1.2. EU court (jurisdiction outside Austria, but within the EU)

• Without choice of law
  The procedure described under 1.1. said in the section “Without choice of law”. Austrian law, including Austrian consumer protection law, therefore applies. If necessary, however, additional consumer protection provisions of the (foreign) jurisdiction may apply. This depends on the (consumer protection) law of the jurisdiction.
• With choice of law
  In principle, the chosen law applies.
  If Austrian law has been chosen, it shall apply again including Austrian consumer protection law. If applicable
  additionally mandatory consumer protection provisions of the (foreign) jurisdiction.
  If another law has been chosen, it shall apply. The additional applicability of national consumer protection law of the state of the court is in line with the legal position
  of the respective judicial state.

2. hotel booking between an Austrian hotelier and a hotel guest who is a consumer domiciled in an EEA state

If the consumer is domiciled in a “pure” EEA state (which here means those EEA states that are not also EU states, i.e. Liechtenstein, Norway and Iceland), it is also initially decisive whether the legal dispute takes place before an Austrian court or before a court of the other EEA state.

2.1. Austrian court

• Without choice of law
  The procedure described under point 1.1. said in the section “Without choice of law”. This means that Austrian law applies to the hotel booking including the
  Austrian consumer protection law.
• With choice of law
  Once again, a distinction must be made as to whether EU/EEA law or non-EU/EEA law (third country law) has been chosen.
  If Austrian law is chosen, this shall apply including the Austrian consumer protection provisions.
  If EU/EEA law was chosen which is not Austrian law, this chosen law shall apply, but in addition § 13a para. 2 KSchG.
  If a non-EU/EEA law (third country law) has been chosen, the chosen law shall also apply, but in addition § 13a KSchG shall apply in its entirety, i.e. its para. 1 and para. 2.

2.2. EEA Court (Liechtenstein, Norway, Iceland)

What the legal position is when a dispute takes place before an EEA court is determined by the respective IPR law (International
Private Law Act) of that state whose court is called upon to decide the dispute. For this purpose, therefore, one must consider the conflict-of-law
Comply with regulations of the relevant jurisdiction.

3. hotel booking between an Austrian hotelier and a hotel guest who is a consumer domiciled in a third country (neither in the EU nor in the EEA)

Attention:
Here, agreements on the place of jurisdiction are possible in principle (but not so, for example, in relation to Switzerland, for which the following applies by way of exception
that to 2.2. said, although Switzerland is not part of the EEA), but often the decisions in the respective other state cannot be
be enforced.

Otherwise, what has been said under point 2 applies in full.
For reasons of clarity, this will nevertheless be explained in more detail.

3.1. Austrian court

• Without choice of law
  Austrian law including Austrian consumer protection law shall apply.
• With choice of law
  Again, a distinction must be made as to whether EU/EEA law or non-EU/EEA law (third country law) has been chosen.
  If Austrian law is chosen, this shall apply including the Austrian consumer protection provisions.
  If EU/EEA law was chosen which is not Austrian law, this chosen law shall apply, as well as additionally § 13a para. 2 KSchG.
  If a non-EU/EEA law (third country law) has been chosen, the chosen law shall also apply, as well as additionally § 13a KSchG in its entirety, i.e. its para. 1 and para. 2.

3.2. Court of the third country (non-EU/EEA country)

The legal situation when a dispute is brought before a court of a third country is determined by the respective IPR (International Private Law) law of the country whose court is called upon to decide the dispute. For this purpose, therefore, the conflict-of-law rules of the relevant jurisdiction must be observed.