ECJ Guidance On When A Trader's Activities Are Directed At Consumers In Other Member States.

Pammer v Schülter GmbH [C-585/08], Hotel Alpenhof v Heller [C-144/09]

Under the Brussels Regulation, a consumer buying from a trader whose activities are directed at the consumer's home state can sue the trader either in his home state or in the trader's home state. If the Regulation does not apply (i.e. the activities are not directed at the consumer's home state), then the trader must be sued in its own home state. The question which arose in these cases was the extent to which a website operated by a trader was directed at the other party's home state. Both cases involved the member states of Germany and Austria and in each case the consumer consulted the trader's website in the other state before making a booking.

The ECJ held that having a website accessible in another member state did not in itself demonstrate an intention to target that state, since accessibility was inevitable, whether desired or not. Similarly, it was insufficient to show that the trader was directing its activity if the website contained email addresses or contact details (especially telephone numbers without international codes) as these are required under the E-commerce Directive.

The test to determine whether websites are directing their activities to another member state is: "whether.... it is apparent from the website and the trader's overall activity that the trader was envisaging doing business with the consumers domiciled in one or more member states... in the sense that it was minded to contract with them." Specifically mentioning that it was offering its products to a member state would be evidence of direction of activity but in addition the following factors might indicate such activity:

the international nature of the activity in question.

mention of itineraries from other member states to go to the place where the trader is established.

use of a language or currency other than that used in the trader's member state.

mention of telephone numbers with an international dialling code.

use of an internet referencing site such as Google in order to facilitate access to the website by consumers in other member states.

use of a national top level domain other than that of the trader's member states (e.g. having a ".fr" address when the trader is established in England).

use of a neutral top level domain such as ".com".

mention of an international clientele of customers.

Whilst this issue was determined the light of a particular matter, one can envisage these tests being applied in other circumstances as e-commerce becomes more widespread in Europe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Mark Alsop

Charles Russell LLP

5 Fleet Place

London

EC4M 7RD

UNITED KINGDOM

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