Contracts entering into the scope of the pursued or directed activities

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object of the rules: the protection is not justified beyond the consumer contracts, so as a specific attention is needed in the qualification process. Some others are imposed by specific PIL considerations and by the need to conciliate substantive justice issues (like consumers’

protection and facilitation of their access to justice) and aspects related to the proximity and to the adequate coordination between the different national laws: the protection is justified only when the professional purposefully directed its activities to the consumer’s State.

These requirements, frequently interpreted liberally and obviously in favorem consumatoris[75], are of major interest for the professionals. The EU private international law norms will have an important impact for all the e-commerce companies, regardless of their domicile, in the EU or abroad. With the targeting criterion, the intention of the professional to operate on a specific market, deduced from its objective conduct, becomes essential; it works as a predictability factor[76] and legitimises the position of the EU legislator. The solutions retained, even severe, are reflecting a balance between the consumers’ protection and the interests of the professionals involved in the e-commerce: a better consumers’ protection sustains their confidence in the electronic environment for contracting; correlatively, the e-commerce is in a constant growth, for the professionals’ benefit.

[1] Regulation 1215/2012 on the jurisdiction, recognition and enforcement of judgments in civil and commercial matters, JO L 351, 20.12.2012.

[2] Regulation 593/2008 on the law applicable to contractual obligations (Roma I), JO L 177, 4.7.2008.

[3] Z.S. TANG, „Consumer contracts and the Internet in EU private international law”, in A. SAVIN, J.

TRZASKOWSKI (eds.), Research Handbook on EU Internet Law, Elgar, 2014, p. 254, sp. p. 259.

[4] The stake as regards the jurisdiction and applicable law in international consumers contracts is still high, despite the harmonising efforts made at the EU level. Even in Europe, the differences between the national legislations are still important. They are accepted including by the directives of new generation; for example, the Directive 771/2019 on certain aspects concerning contracts for the sale of goods (JO L 136, 22.5.2019) allows a margin of appreciation of the Member States in the transposition process as regards the corrective measures in case of non-conformity (art. 13(5), (6)), the commercial guarantees (art. 17(4)), the modalities for return and reimbursement in case of termination of the contract (art. 16).

[5] The requirement of the targeting of the professional’s activities, found both in art. 17(1)(c) Brussels 1 bis and art. 6 Rome I Regulation, is an example of this influence.

[6] The choice of law clauses are in principle acceptable, but the consumer is allowed to claim the application of the substantive mandatory provisions from the State of its habitual residence (art. 6(2) Rome I Regulation).

[7] The (legislative) option for the application of the law of the State from the consumer’s habitual residence is not justified directly by the substantive content of this law (more favourable to the consumer), but by the need to respect the parties’ expectations and the accessibility of the content of this law - S. Francq, „Le droit international privé comme outil de régulation du marché intérieur: la consommation”, in M. AUDIT, H. MUIR-WATT, E.

PATAUT, Conflits de lois et régulation économique, LGDJ, 2008, p. 115, para 300.

[8] ECJ, 19 January 1993, C-89/91, Shearson Lehman Hutton, para 17.

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[9] R. PLENDER, M. WILDERSPIN, The European Private International Law of Obligations, 3rd ed., Sweet &

Maxwell, 2009, p. 228, no. 9.011.

[10] Recital 7, Rome I Preamble. The ECJ’s indications for the interpretation of the Brussels 1 (bis) Regulation or its predecessors will be relevant also as regards the Rome I Regulation, a welcomed solution which ensures the legal certainty for the parties and facilitates the uniform interpretations, the clarity and coherence of the solutions (important aspects, especially for e-commerce) - R. PLENDER, M. WILDERSPIN, op. cit., p. 229, no 9.015 et seq.

[11] The origin of this definition is considered to be ECJ’ decision from 21 June 1978, C-150/77, Bertrand (para 21). It also corresponds to the definitions found in different EU directives.

[12] ECJ, 14 March 2013, C-419/11, Česká spořitelna; CJCE, 3 July 1997, C-269/95, Benincasa. The same individual can be sometimes a professional and other times a consumer, depending on the purpose of the concluded contract - ECJ, 3 September 2015, C-110/14, Costea: a lawyer who concludes a loan contract will be a consumer if he borrowed the money for personal purposes and a professional, if he acted for professional purposes.

[13] OJ L 271, 9.10.2002, p. 16–24.

[14] ECJ, 3 October 2019, C-208/18, Petruchová.

[15] Considering some specific values in this regard would have contradicted both the legal texts (which do not establish such thresholds for their operation) and the objectives of certainty and predictability followed by the EU legislator – Petruchova, para 51 and seq.

[16] See Recital 26, Rome I Preamble.

[17] ECJ, 2 April 2020, C-500/18, A.U. vs Reliantco Investments.

[18] ECJ, 10 December 2020, C-774/19, A.B., B.B, vs Personal Exchange International Ltd.

[19] ECJ, 20 January 2005, C-464/01, Gruber.

[20] ECJ, 14 February 2019, C-630/17, Milivojević.

[21] ECJ, 25 January 2018, C-498/16, Schrems v. Facebook.

[22] ECJ, 25 January 2018, C-498/16, Schrems v. Facebook.

[23] A supplementary requirement appears in the AG Bobek Conclusions (from 14.11.2017): the dispute in which the user rely on the consumer status should be related with the activity on that private account; if it is generated by the activity on the professional page, the solution is different (para 26).

[24] In its Conclusions (para 40), the AG raises doubts about the existence of a personal purpose when, despite an initial utilisation of the e-mail account for personal communications, a user changed this utilisation into one for (preponderantly or exclusively) professional activity.

[25] Indirectly, the Court also confirmed that the protective rules can be applied not only to the consumer pay with money, directly, for the digital services or products, but also when he agrees for the collection, by the professional of some personal data and information, that will later be exploited.

[26] ECJ, 10 December 2020, C-774/19, A.B., B.B, vs Personal Exchange International Ltd.

[27] This registration, determined by an eventual control from the fiscal authorities in relation with the non-declared benefits obtained from the regular activities, is able to minimize in practice the importance of the second requirement mentioned by the court (offering assets or services to third parties, a requirement which is rarely met in practice in the field of online games).

[28] See the definition and the explanations offered by the European Commission in relation with this concept:

„For the purposes of this Communication, the term “collaborative economy” refers to business models where activities are facilitated by collaborative platforms that create an open marketplace for the temporary usage of goods or services often provided by private individuals. The collaborative economy involves three categories of

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actors: (i) service providers who share assets, resources, time and/or skills — these can be private individuals offering services on an occasional basis (‘peers’) or service providers acting in their professional capacity (‘professional services providers’); (ii) users of these; and (iii) intermediaries that connect — via an online platform — providers with users and that facilitate transactions between them (‘collaborative platforms’)” - Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “A European agenda for the collaborative economy”, Brussels, 2.6.2016 COM(2016) 356 final (p. 3).

[29] ECJ, 20 April 2020, C-692/19, Yodel.

[30] Communication from the Commission…, op. cit., p. 9-10.

[31] According to the EU Commission, op. cit., p. 10, in principle, the persons that merely exchange assets (like in case of home swapping) or services (like in case of time banks) should not qualify as traders.

[32] ECJ, 19 January 1993, C-89/91, Shearson Lehman Hutton; ECJ, 1 October 2002, C-167/00, Henkel, para 41.

[33] M. WILDERSPIN, „Article 6”, in (eds). U. MAGNUS, P. MANKOWSKI, Rome I Regulation. European Commentaries on Private international Law, Otto Schmidt, 2017, p. 461-462, no.18.

[34] ECJ, 28 July 2016, C-191/15, Verein für Konsumenteninformation v. Amazon EU Sàrl.

[35] In VKI v. Amazon, the ECJ had the occasion to intervene on the issue of the unfairness of a choice of law clause designating the law of the professional, found in the general terms that the online e-commerce platform Amazon and applied also for international consumer contracts. The Court recalled that such clause is admissible under art. 6, but it also may be invalidated as unfair when „it displays certain specific characteristics inherent in its wording or context which cause a significant imbalance in the rights and obligations of the parties” (para 67), and more precisely, when “it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 6(2) of the Rome I Regulation he also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term” (para 71). Given this, in order to avoid a rapid invalidation of their electio juris clauses, the professionals should consider their redrafting; the information of the consumers about their possibility to rely, in specific circumstances, of the law of the State from their habitual residence appears as an indispensable requirement.

[36] ECJ, 1 October 2002, C-167/00, Henkel, para 50.

[37] ECJ, VKI v. Amazon, para 39: „an action for an injunction under Directive 2009/22 relates to a non-contractual obligation arising out of a tort/delict within the meaning of Chapter II of the Rome II Regulation”;

„unfair competition within the meaning of Article 6(1) of the Rome II Regulation covers the use of unfair terms inserted into general terms and conditions, as this is likely to affect the collective interests of consumers as a group and hence to influence the conditions of competition on the market” (para 42), so that the solution should be that of the application of the law of the state in which the collective interests of consumers are affected, and more precisely, then country of residence of the consumers to whom the undertaking directs its activities and whose interests are defended by the relevant consumer protection association by means of that action. The application of the exception clause from art. 4(3) Rome II Regulation is expressly refused (para 44-47).

[38] For the C2C contracts, there is no imbalance between the parties, so that the intervention of the protective rules, which aim to compensate the vulnerability of one party and its lack of information and experience vis a vis the other, is not justified; see ECJ, 5 December 2013, C-508/12, W. Vapenik. This precision is important especially as regards the platforms for collaborative economy; based on Kamenova (ECJ, 4 October 2018, C-105/17), it will be relatively easy for a user which is not registered as a professional at the Trade Registry to prove that he did not act in this quality and to avoid the jurisdiction of the courts and the application of the laws from the State of its counterparty.

[39] ECJ, 4 October 2018, C-105/17, Kamenova.

[40] ECJ, Kamenova, para 40: „the mere fact that the sale is intended to generate profit or that a person publishes, simultaneously, on an online platform a number of advertisements offering new and second-hand goods for sale is not sufficient, by itself, to classify that person as a trader”.

[41] ECJ, 14 November 2013, C-478/12, Maletic.

181 [42] ECJ, 11 July 2002, C-96/00, R. Gabriel.

[43] ECJ, 20 January 2005, C-27/02, Engler. On the contrary, the applicability of art. 5(1) Brussels Convention (now art 7(1) Brussels 1 Regulation), does not depend on the conclusion of a contract, but on the existence of a freely assumed obligation of one party toward the other, which is the case when the trader addresses to the consumer on its own initiative a letter a letter designating the consumer by name as the winner of a prize, which is afterwards accepted; consequently, the Court decides that the action for claiming the prize is a contractual and that provision may be applied for determining the competent court.

[44] ECJ, 14 May 2009, C-180/06, Ilsinger, para 54.

[45] With this position, a question arises as whether for other cases of culpa in contrahendo (different than the violation of the information obligation), the jurisdiction of the courts from the consumers’ domicile can be accepted, considering as abandoned the older jurisprudence of the Court (like Tacconi,17 September 2002, C-334/00). The answer is not evident; but as long as a consumer contract was not concluded (eventually because of abusive termination of negotiations), the special rules from the Section 4 Chapter II could not be applied.

[46] The stake is not very high, since both art. 6 from Rome I and Rome II Regulations designate the same law (the law from the habitual residence of the consumer), minimizing the difficulties generated by the precise classification of the action.

[47] The same action may be differently classified as regards the jurisdiction and the applicable law, an aspect which is not satisfactory. In Reliantco, the Court tried to minimize the inconveniences, showing that despite the extra-contractual classification of the action from a conflicts of laws perspective, art. 12(1) of Rome II Regulation allows the application of the lex contractus (the law from the consumer’s habitual residence) and ensures the coincidence between the competent court and the applicable law.

[48] ECJ, 28 January 2015, Kolassa, C-375/13.

[49] ECJ, Kolassa, para 35: „an applicant who, as a consumer, has acquired a bearer bond from a third-party professional, without a contract having been concluded between that consumer and the issuer of the bond, which it is for the national court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer of the bond on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus”.

[50] See mutatis mutandis, ECJ, 7 February 2013, C-543/10, Refcomp.

[51] On the difficulties related to the application of the Rome II Regulation, see M. LEHMANN, “Prospectus Liability and Private International Law - Assessing the Landscape After the CJEU Kolassa Ruling (Case C-375/13)”, J. PIL., 2016, vol. 11, issue 2, p. 318 and seq (at D.).

[52] Z.S. TANG, op. cit., p. 262-265.

[53] On the extension of the rule, see P. MANKOWSKI, “Consumer Contracts under Article 6 of the Rome I Regulation”, in E. CASHIN-RITAINE, A. BONOMI (coord.), Le nouveau règlement européen Rome I relatif à la loi applicable aux obligations contractuelles, op. cit., p. 121, sp. p. 123-125 and 143-158.

[54] The exclusion is relevant, for example, as regards the renting contracts concluded on P2P platforms, like Airbnb and is important since it might be difficult to determine whether the owners are really professionals or not.

[55] ECJ, 3 October 2019, C-272/18, Verein für Konsumenteninformation v. TVP Treuhand.

[56] The court also offered a list of indications useful to the national courts in the process of implementing that solution; she considered that „fact that the amounts required for subscription to the partnership were paid into fiduciary accounts held by TVP in Austria, that it paid dividends to Austrian consumers into Austrian accounts, that it fulfils its information obligations arising from the trust agreement by sending reports on its fiduciary management to Austrian consumers in Austria and that it has a website for Austrian consumers on which they may consult information and exercise their voting rights tend to show [ ...] that those services are supplied at a distance in the country in which the consumer is resident” (para 53). Some of them may be generalized, and the limits of the exclusion from art. 6(4)(a) of the Regulation are thus better affirmed.

[57] R. PLENDER, M. WILDERSPIN, op. cit., p. 242, no. 9.051.

182 [58] Recital 24, Rome I Preamble.

[59] The mere displacement of the trader or of its representatives in that State, after the conclusion of the contract and for the purpose of its performance, is not enough in this regard.

[60] On the difficulties for the implementation of this criterion, see P. MANKOWSKI, „Consumer Contracts under Article 6 of the Rome I Regulation”, op. cit., p. 121, sp. p. 127-137.

[61] Such a definition would have been a difficult one, since it would have to ensure a delicate balance between a broad position (risky for business) and more restrictive one (disadvantageous for consumers)

[62] P. KINDLER, op. cit., p. 177. See also ECJ, Pammer, para 92.

[63] ECJ, 7 December 2010, Pammer & Alpenhof, C-585/08 and C-144/09.

[64] ECJ, Pammer : „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 the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, 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, mention of telephone numbers with an international code, 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, use of a top-level domain name other than that of the Member State in which the trader is established, and 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 (para 93). 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 (para 94)”

[65] See in the same sense the Recital 24 final, Rome I Preamble, citing the Common Declaration of the Commission and the Council on art. 15 of Brussels 1 bis Regulation.

[66] P. KINDLER, op. cit., p. 179-180.

[67] Directing the activities on the internet is not dependent on the States’ frontiers, but on cultural, linguistic or interest communities - P. KINDLER, op. cit., p. 180.

[68] P. KINDLER, op. cit., p. 179; see also, Pammer, para 68: unlike the classic forms of advertising, the trader’s intention to direct its activities to a specific state „is not always present in the case of advertising by means of the internet. Since this method of communication inherently has a worldwide reach, advertising on a website by a trader is in principle accessible in all States, and, therefore, throughout the European Union, without any need to incur additional expenditure and irrespective of the intention or otherwise of the trader to target consumers outside the territory of the State in which it is established”. Because of this, the mere accessibility, in a State, of the site where the professional presents its activity and products, is not enough to characterize the targeting.

[69] Z.S. TANG, op. cit., p. 270. R. PLENDER, M. WILDERSPIN, op. cit., p. 246, no. 9.058. Even if the simple indication of the mail address or of a phone number with an international prefix are relatively weak indicators for targeting (para 79, Pammer), especially if the website is not interactive, the acceptance of orders placed by e-mail by clients from a specific country may reveal, in fact, the professional’s will to direct its activities to that country.

[70] Z.S. TANG, op. cit., p. 270.

[71] Art. 6 does not include a predictability clause (for the professional), that would have limited the application of the favourable rules.

[72] ECJ, 17 October 2013, C-218/12, Emrek.

[73] ECJ, 23 December 2015, C-297/14, Hobohm.

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[74] Such a solution is welcomed since the environment for the conclusion of the performance of the contract should not influence the level for the consumer’s protection; equally, a double set of norms would have increased the uncertainties for both traders and consumers.

[75] See ECJ’s decisions in cases C-498/16, M. Schrems; C-478/12, Maletic; C-218/12, Emrek; C-297/14, Hobohm.

[76] If a trader directs its activities to the European market, he has to accept the eventual jurisdiction of the European courts and to obey the substantive rules for the consumers protection from the concerned States.

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