[:en]What happens if one concludes a contract on the Internet, through a foreign site, and, following the conclusion, one finds problems with the contract concluded?

Which judge should I turn to? Who has jurisdiction. 

To answer this question, as succinctly as possible, one must first read the Articles 15 and 16 of Regulation 44/2001.

These articles provide that:

  •  the consumer has the option of bringing proceedings either in the state where he is domiciled or before the courts of the member state where the other party is domiciled;
  • the other side has instead the obligation to bring the action only before the courts of the Member State.

The answer might, at first glance, be rather simple.

In fact, if you go deeper Article 15(c)these provisions only apply in cases where "the contract has been concluded with a person whose commercial or professional activities [...] are directed, by whatever means, to that Member State or to several States."

At this point, the question arises as to when a website can be considered a 'direct activities." Put simply, to understand when Article 15 of the regulation is actually applicable, in all cases where a consumer enters into a contract on the internet, with a party that conducts business in a different state.

Doctrine and jurisprudence have spoken on this point, including the judgments of the Court of Justice 15.4.2010, Case C-215/08 and 16.10.2008, Case C-298/07.

The Court noted that the mere opening of a website is not sufficient to make the provisions of a consumer contract applicable. On the other hand, it is necessary for a trader's intention to market goods and services in a particular Member State to be detectable.

The Court thus indicated some "objective 'evidence' that can be assessed for this purpose. On this point it noted that:

  • does not detect the indication of the email address and telephone number without international dialling code;
  • does not detect whether the website is active or passive (a mere showcase, or interactive);
  • notes certainly an indication that it intends to offer its services in one or more Member States;
  • notes certainly the commitment of financial resources for an Internet positioning service to a search engine operator;

If there is no such clear-cut evidence, according to the Court, reference must be made to other elements to be assessed jointlyincluding:

  • the international nature of professional activity, such as certain tourist activities;
  • the use of the denaming a top-level domain other than that of the Member State in which the trader is established or the use of neutral domains such as '.com' or ".eu";
  • the mention of an international clientele made up of clients domiciled in different Member States, who have, for instance, left comments or feedback on the trader's activity.
  • the language and currencyif the site allows consumers to use several of them.

According to the Court, several elements would have to be assessed in order to conclude that the professional activity is directed towards a specific Member State or States.

 

 

 

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