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The Regulation (CE) 593/2008 (the “Rome I Regulation”) on the law applicable to contractual obligations might have relevant Internet law consequences on e-commerce websites selling their products to Italian consumers, including American websites.
Let’s set the scenario:
- an e-commerce .COM website is run by a US company selling goods to consumers located worldwide;
- the website is in English, including its Terms of Sale that are subject to a US law;
- the goods sold through the website are shipped worldwide, including Italy.
Can Italian consumers rely on Italian non-derogable laws?
The answer is YES on the basis of a strict interpretation of the Rome I Regulation which according to Italian private international law is applicable also to contracts where the counterparty is not domiciled in the European Union, like a US e-commerce operator with a relevant impact under Internet law.
Indeed, the Rome I Regulation requires that the website directs its activity to Italian consumers which according to the recitals of the regulation can occur when:
- the website solicits the conclusion of distance contracts; and
- a contract has been actually concluded at a distance by whatever means.
It is possible to argue that the mere possibility for Italian consumers to purchase products through the American website (as any other foreign website) implies a direction of the activity of the portal towards Italian consumers. On the basis of such interpretation, Italian consumers under the scenario outlined above will be entitled to exercise the rights prescribed by Italian law which cannot be derogated from by agreement.
However, please bear in mind that the validity of the arguments outlined above will depend on the specific features of the website which need to be reviewed on a case by case basis. Likewise, the consequences for foreign websites of applicability of the Italian non-derogable laws and the approaches to be taken in this respect need a review of the peculiarities of the each website.
