Week 1
In this course: only B2C, not C2C!
3 situations
1. International situation: for instance if you live in the Netherlands, you use Alibaba,
with which you contract with someone in Singapore. Then you have Dutch, Chinese
and Singaporean law rules laid down in Rome I.
2. EU situation: Hungary – Spain
* Conflict rules/private international law = the body of law which determines in an
EU situation which legal system applies Rome I.
* Member states have to implement directives into a legal system. A regulation has
direct effect, if you go to court you can directly invoke those rules.
3. National situation: German seller sells a car to a German buyer, so all aspects of the
contract are in Germany.
Contracting questions
1. With which company do you enter into a contract and where is that company
established?
* E.g. Facebook/Amazon/Airbnb
* E.g. Amazon.uk/Amazon.de
2. What is the language of the site?
* Often the language you see on a website is your own language, however if you want
to know the terms and conditions and your rights it is often in English.
*E.g. in the terms and conditions of Facebook a forum choice clause is included and
terms on which legal system applies to the situation.
What’s important with respect to international situation, there are three questions:
1. Which court is competent?
2. Which legal system is applicable?
3. If you have a decision, in which country can you enforce the decision?
Which court is competent to hear a consumer case in a digital situation?
International jurisdiction rules are found in: International conventions, The Hague
Conventions on private international law, many countries are a member and they
negotiate and agree upon conventions. But it is limited. So we have Brussels I
Recast
The Brussels preambule is important to read, especially preambule no. 34 also look at
the Case Law
Brussels Recast articles
1
, Art. 1: in which situations does this apply? Sub 2 mentions the cases in which
Brussels Recast does not apply.
Art. 4: general rule of the regulation; defendant must be domiciled in a MS of the EU.
That court is then competent.
Art. 17 and following: consumer contracts prevail over the general rule of art. 4
* sub a: if you buy something and pay the price after month and obtain the property
after you paid the full price
* sub c: who pursues commercial or professional activities in the MC of the
consumer’s domicile… this deals with digital contracts, only a specific type of
digital contracts. Sub c says: ‘or by any means, directs such acitvities… of such
activities’. That rule exists because the consumer is the weaker party, whereas the
professional party does nothing else than this.
E.g. when a Spanish doctor advertised his services in Dutch magazines, addressed
it to persons in the Netherlands (it was in Dutch). Then people entered into a contract
with him. So the professional party addressed his business to a person in NL.
Thus if a German sellers places ads on Facebook in Dutch, the question is:
Is it directed at consumers in the specific countries?
Only a specific type of consumer should be protected. The idea is that as a consumer
you don’t have to worry about persons from other countries trying to sell something
to you.
However the internet changed things. If you are an active consumer, you don’t have
to be protected (if you travel and buy abroad you have to take into account that if
something goes wrong, you have to go to a foreign court), but with the internet it is
not clear when you’re an active or passive consumer.
- If you have a Facebook site in Dutch, are you an active or passive consumer?
- If you use Facebook you enter in a contract with an Irish company (where they are
established), are you protected by art. 17 or not?
- How does the professional party direct its activities to consumers? (art. 17(1)(c) if
the person who pursues commercial or professional activities in the MS of the
consumers domicile passive consumer, and also 17(1) and (b)).
Case law: Alpenhof/Heller
Situation: Mr Heller had found the hotel Alpenhof in Austria through the website of
the hotel. He made a reservation that was confirmed by e-mail. He staid there for one
week and then left without paying because he thought things were wrong. Heller was
domiciled in Germany, he was sued before an Austrian court. The protection provided
to the consumer under art. 17 is that the consumer can go to his or her own country.
The Austrian hotel had started proceedings in Austria, Heller said that the Austrian
court was not competent because of his consumer protection.
Preliminary question: is it sufficient that you just use the website or should there be
more indications that the business directs its activities to a consumer in another MS?
The court said: the mere fact that there is a website is not enough for that, there should
be more indications.
2
, Section 93: ‘’the following matters… evidence exists.’’ The ECJ gives a list of
indicators (not exhaustive) that may prove that business directs its activities to another
member state. Here it said that it was insufficient that you can access the website. This
concerns merely the digital state, so not if they have Dutch speaking personnel for
example, only digital indicators. For instance on the website you can chose Dutch and
there is an international language, so they focus on foreign customers. Then you
should look if they specifically direct at Dutch customers. The language may already
be an indicator.
Case law: Daniela Muhlleitner v. Yusufi
Situation: Daniela (lived in Austria) wanted a specific car and information about the
car, so she called and asked the seller to tell her more about the car. She found an
international dialing code and called, but the car was no longer available so the seller
offered another car. She bought the other car in Germany, the car broke down and the
seller refused to repair. She started proceedings in Austria. The seller claimed she was
a passive consumer.
Preliminary question: if you got acquainted through a website, should it be a contract
by digital means (distance contract)?
The court said: no it doesn’t have to be. Even if the contract is concluded face to face,
art. 17 applies. So it is not required that if the activity is directed to you, that the
contract is also made by digital means.
It all concerns a business actively pursuing an activity.
Case law: Emrek v. Sabranovic
Situation: Emrek lived in Germany and looked for a secondhand car. He learned from
people he knew that there was a good shop just across the border in France. He went
there and bought a car. The car broke down, the seller refused to fix it. Emrek sued
Sabranovic in Germany. The German court said in first instance that they had no
competence, because he had heard about the garage from acquaintances. At the time
Sabranovic also had a website however, so he also directed its activities at German
customers, that was not at dispute.
Preliminary question: in order to be protected by art. 17, do you need a causal link
between contract and website (because in this case there was no knowledge of a
website at all)?
The court said no: there does not need to be a causal link, so if a business directs its
activities to someone in another state, either face to face or through e-mail, it is not
necessary that they got to know you through these activities.
Consumer – Brussels Recast
Consumer as plaintiff: art. 18 sub 1, you have the choice where you bring the case.
3
, Consumer as defendant: art. 18 sub 2, you can only be brought before the court of the
country you live.
4
In this course: only B2C, not C2C!
3 situations
1. International situation: for instance if you live in the Netherlands, you use Alibaba,
with which you contract with someone in Singapore. Then you have Dutch, Chinese
and Singaporean law rules laid down in Rome I.
2. EU situation: Hungary – Spain
* Conflict rules/private international law = the body of law which determines in an
EU situation which legal system applies Rome I.
* Member states have to implement directives into a legal system. A regulation has
direct effect, if you go to court you can directly invoke those rules.
3. National situation: German seller sells a car to a German buyer, so all aspects of the
contract are in Germany.
Contracting questions
1. With which company do you enter into a contract and where is that company
established?
* E.g. Facebook/Amazon/Airbnb
* E.g. Amazon.uk/Amazon.de
2. What is the language of the site?
* Often the language you see on a website is your own language, however if you want
to know the terms and conditions and your rights it is often in English.
*E.g. in the terms and conditions of Facebook a forum choice clause is included and
terms on which legal system applies to the situation.
What’s important with respect to international situation, there are three questions:
1. Which court is competent?
2. Which legal system is applicable?
3. If you have a decision, in which country can you enforce the decision?
Which court is competent to hear a consumer case in a digital situation?
International jurisdiction rules are found in: International conventions, The Hague
Conventions on private international law, many countries are a member and they
negotiate and agree upon conventions. But it is limited. So we have Brussels I
Recast
The Brussels preambule is important to read, especially preambule no. 34 also look at
the Case Law
Brussels Recast articles
1
, Art. 1: in which situations does this apply? Sub 2 mentions the cases in which
Brussels Recast does not apply.
Art. 4: general rule of the regulation; defendant must be domiciled in a MS of the EU.
That court is then competent.
Art. 17 and following: consumer contracts prevail over the general rule of art. 4
* sub a: if you buy something and pay the price after month and obtain the property
after you paid the full price
* sub c: who pursues commercial or professional activities in the MC of the
consumer’s domicile… this deals with digital contracts, only a specific type of
digital contracts. Sub c says: ‘or by any means, directs such acitvities… of such
activities’. That rule exists because the consumer is the weaker party, whereas the
professional party does nothing else than this.
E.g. when a Spanish doctor advertised his services in Dutch magazines, addressed
it to persons in the Netherlands (it was in Dutch). Then people entered into a contract
with him. So the professional party addressed his business to a person in NL.
Thus if a German sellers places ads on Facebook in Dutch, the question is:
Is it directed at consumers in the specific countries?
Only a specific type of consumer should be protected. The idea is that as a consumer
you don’t have to worry about persons from other countries trying to sell something
to you.
However the internet changed things. If you are an active consumer, you don’t have
to be protected (if you travel and buy abroad you have to take into account that if
something goes wrong, you have to go to a foreign court), but with the internet it is
not clear when you’re an active or passive consumer.
- If you have a Facebook site in Dutch, are you an active or passive consumer?
- If you use Facebook you enter in a contract with an Irish company (where they are
established), are you protected by art. 17 or not?
- How does the professional party direct its activities to consumers? (art. 17(1)(c) if
the person who pursues commercial or professional activities in the MS of the
consumers domicile passive consumer, and also 17(1) and (b)).
Case law: Alpenhof/Heller
Situation: Mr Heller had found the hotel Alpenhof in Austria through the website of
the hotel. He made a reservation that was confirmed by e-mail. He staid there for one
week and then left without paying because he thought things were wrong. Heller was
domiciled in Germany, he was sued before an Austrian court. The protection provided
to the consumer under art. 17 is that the consumer can go to his or her own country.
The Austrian hotel had started proceedings in Austria, Heller said that the Austrian
court was not competent because of his consumer protection.
Preliminary question: is it sufficient that you just use the website or should there be
more indications that the business directs its activities to a consumer in another MS?
The court said: the mere fact that there is a website is not enough for that, there should
be more indications.
2
, Section 93: ‘’the following matters… evidence exists.’’ The ECJ gives a list of
indicators (not exhaustive) that may prove that business directs its activities to another
member state. Here it said that it was insufficient that you can access the website. This
concerns merely the digital state, so not if they have Dutch speaking personnel for
example, only digital indicators. For instance on the website you can chose Dutch and
there is an international language, so they focus on foreign customers. Then you
should look if they specifically direct at Dutch customers. The language may already
be an indicator.
Case law: Daniela Muhlleitner v. Yusufi
Situation: Daniela (lived in Austria) wanted a specific car and information about the
car, so she called and asked the seller to tell her more about the car. She found an
international dialing code and called, but the car was no longer available so the seller
offered another car. She bought the other car in Germany, the car broke down and the
seller refused to repair. She started proceedings in Austria. The seller claimed she was
a passive consumer.
Preliminary question: if you got acquainted through a website, should it be a contract
by digital means (distance contract)?
The court said: no it doesn’t have to be. Even if the contract is concluded face to face,
art. 17 applies. So it is not required that if the activity is directed to you, that the
contract is also made by digital means.
It all concerns a business actively pursuing an activity.
Case law: Emrek v. Sabranovic
Situation: Emrek lived in Germany and looked for a secondhand car. He learned from
people he knew that there was a good shop just across the border in France. He went
there and bought a car. The car broke down, the seller refused to fix it. Emrek sued
Sabranovic in Germany. The German court said in first instance that they had no
competence, because he had heard about the garage from acquaintances. At the time
Sabranovic also had a website however, so he also directed its activities at German
customers, that was not at dispute.
Preliminary question: in order to be protected by art. 17, do you need a causal link
between contract and website (because in this case there was no knowledge of a
website at all)?
The court said no: there does not need to be a causal link, so if a business directs its
activities to someone in another state, either face to face or through e-mail, it is not
necessary that they got to know you through these activities.
Consumer – Brussels Recast
Consumer as plaintiff: art. 18 sub 1, you have the choice where you bring the case.
3
, Consumer as defendant: art. 18 sub 2, you can only be brought before the court of the
country you live.
4
