(Impact of the Joint cases C-585/08 and C-144/09, Pammer и Alpenhof)
Boriana Musseva[1]
This article aims at exploring the concept of activity ”directed” to the Member State of the consumer’s domicile, introduced into the European legislation by the Brussels I Regulation and adopted later in the Rome I Regulation.
The traders using online shops usually direct their activities via internet to unlimited number of consumers in unlimited number of countries. In this case they are running the risk of being sued before the courts of the foreign consumer’s home states on the basis of Article 15 Para. 1 c) of the Brussels I Regulation. Inthe event of absence of “directed” activity however, the trader would be most probably sued in his state of domicile (Article 2) or before the courts on the place of performance of the obligation in question (Article 5 (1) (a)).
In the context of this rule – obviously designed to protect consumers – the crucial point for the electronic commerce is to what extent it shall be considered that an activity is “directed” towards the Member State of the consumer’s domicile.
In his decision in the jointed cases C-585/08 (Pammer) and 144/09 (Alpenhof) the Court concluded that mere accessibility of the trader’s website is insufficient. Insufficient is also the indication of email address or the use of language or currency typical for the Member State in which the trader is established.
According to this ruling the protection of the consumers requires a willingness of the trader to establish relations with them taking into account the fact of their particular domicile abroad. The aimed or minded conclusion of a contract with foreign consumers could stem from different factors – the content of the website at the time of conclusion of the contract and the trader’s business at that moment and before, the use of techniques targeting consumers and advertisements posted on internet or via other media are of relevance. Such indicators have not been limited by the Court. The national courts have to assess the individual case considering all possible criteria simultaneously. The direction of activities towards a foreign country can not be determined on the basis of one single factor.
The presented article examines the particular criteria given by the Court and the Advocate General and argues that the concept of “directed” activity developed by the reviewed decision reconciles the interests of the free trade in internet and the consumer’s protection.
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Линк към статията на български език: ЗАЩИТАТА НА ТЪРГОВИЯТА В ИНТЕРНЕТ VS. ЗАЩИТАТА НА ПОТРЕБИТЕЛИТЕ
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[1] Assistant Professor in Private International Law, Ph.D., Sofia University „St. Kliment Ohridski”, Bulgaria.
