On-line Consumer Contracts and Border Factor "Targeting Activities" within the Light of the Court's The European Union

Due to increase use of electronic means of communications and Internet consumers are involved in crossborders contracts with international element. To establish the law applicable is necessary to apply conflicts of laws rules. These rules are to be found in Regulation Rome I. In online consumer contracts (via the internet) the crucial point is to interpret its Article 6, more specifically the wording that a party to a contract who pursues commercial or professional activities ‘directs’ such activities to the Member State of the consumer’s domicile or to several States including that Member State. The European Court of Justice for the first time interpreted this term for online activities in joined cases Pammerand Alpenhof. These cases concern the interpretation of the Regulation Brussels I, essentially how to interpret its Article 15(1)c, that contains similar rule as Article 6 of Regulation Rome I. In both Alpenhof and Pammer the national court raises the question whether the fact that a website can be consulted on the internet in the Member State of the consumer’s domicile is sufficient to justify a finding that commercial or professional activities are being directed to that Member State within the meaning of Article 15(1)(c) of Regulation Brussels I. According to the ECJ, In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicileit should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile. The ECJ created a non-exhaustive list that must be taken into account in every particular case (e.g. 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, 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, mention of an international clientele).