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The European Court of Justice has issued an interesting decision in relation to the rules of jurisdiction applicable to contractual relationships between consumers and websites based in other EU Member States. According to the EU Regulation 44/2001 on the jurisdiction and the enforcement of judgments in civil and commercial matters, the courts of the domicile of the consumer have jurisdiction in case of disputes between a trader and a consumer based in two different EU Member States when the former “directs such activity to that Member State”.
The ECJ clarified the scope of such provision in relation to websites stressing that the mere accessibility of a website on the Internet is not sufficient to meet such “targeting requirement” but:
“the trader [i.e. the website] must have manifested its intention to establish commercial relations with consumers from one or more other Member States, including that of the consumer’s domicile. [—] Such evidence does not include mention on a website of the trader’s email address or geographical address, or of its telephone number without an international code”.
In particular, the ECJ held that not all the “interactive” websites are meant to direct their activity to the country of their users because of the mere possibility for a consumer to conclude a contract with the trader.On the contrary, a higher level of evidence of the targeting requirement is necessary. Such evidence can be given, among others, through:
- the mentioning by the trader that it is offering its services or its goods in one or more Member States designated by name;
- the disbursement of expenditure on an internet referencing service to the operator of a search engine in order to facilitate access to the trader’s site by consumers domiciled in various Member States;
- the international nature of the activity at issue, such as certain tourist activities;
- the mentioning by the trader of telephone numbers with the international code;
- the use of a top-level domain name other than that of the Member State in which the trader is established, for example ‘.it’, or use of neutral top-level domain names such as ‘.com’ or ‘.eu’;
- the description of itineraries from one or more other EU Member States to the place where the service is provided; and
- the mentioning of an international clientele composed of customers domiciled in various Member States, in particular by presentation of accounts written by such customers.
This is relevant also because the same principle is set out in the EU Regulation 593/2008 on the law applicable to contractual obligations i.e. websites found to direct their activity to consumers of an EU Member State shall comply with the non-derogable laws of the country of domicile of the consumer despite of their place of establishment.
Furthermore this is even more relevant under an Italian law perspective as the abovementioned EU Regulations are applicable, according to Italian private international law, also to non-EU entities i.e. if an American website directs its business to Italian consumers (even if it does not have any infrastructure in the EU), Italian court will have jurisdiction on the potential disputes and the website shall comply with Italian non-derogable laws.
I understand that the above might have a considerable impact on online businesses. For this purpose, feel free to contact me, Giulio Coraggio, if you want to discuss the matter.
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