Tuesday, December 7, 2010

When Does the Website "Direct" its Activity to Consumer's Country?

Court of Justice just rendered decision in two joint cases Pammer C‑585/08 and Hotel Alpenhof C‑144/09 dealing with the issue of international private law on the internet, more precisely question of jurisdiction over consumer contracts. Following articles are references to provisions of Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - so called Brusel I.

Article 16
1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.

Art. 15
1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:
(c) in all other cases, 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.
Ruling of the Court of Justice on the notion of "directing" to consumers country.
In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.

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
a) the international nature of the activity,
b) mention of itineraries from other Member States for going to the place where the trader is established,
c) 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,
d) mention of telephone numbers with an international code,
e) 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,
f) use of a top-level domain name other than that of the Member State in which the trader is established, and
g) 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.

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