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  • Elektronsko poslovanje in mednarodna pristojnost za potrošniške spore
    Galič, Aleš
    The Brussels I Regulation protects the consumer, who is regarded as economically weaker and less experienced in legal matters than the other party to the contract, by rules of jurisdiction more ... favourable to his interests than the general rules of jurisdiction. The special jurisdictional protective regime, however, does not extend to all types of consumer contracts. In addition to contracts for sale on instalment credit terms or combined with a consumer credit, it applies only in cases where the trader pursues commercial or professional activities in the state of the consumerʹs domicile or directs such activities to that state by any means and the contract falls within the scope of such activities. This requirement gives rise to the question whether (and if, to what extent and under what conditions) it can be established that the trader who is (either directly or through intermediaries) present on the Internet ʺdirects commercial or professional activitiesʺ to the country of the consumerʹs domicile. In 2010, the Court of Justice of the European Union delivered a landmark decision in joint cases of Pammer and Hotel Alpenhof, in which it clarified this dilemma to a certain extent, but not fully. Inter alia, it clarified that the mere accessibility of the traderʹs or of the intermediaryʹs website in the Member State where the consumer is domiciled is insufficient in order to establish that the trader directed commercial activities to the country of the consumerʹs domicile. It must be apparent from his (or the intermediaryʹs) website and the traders overall activity that the trader was envisaging doing business with consumers domiciled abroad. In order to enable such a conclusion, the CJEU provided a non-exclusive list of circumstances, which can be relied upon in order to establish such intent of the trader. The question however is whether this list is not so broad that at least one of the circumstances will inevitably be fulfilled in most cases of traderʹs presence in Internet. Following the aforementioned CJEU judgment, numerous new dilemmas appeared. In the Mühlleitner judgment, the CJEU clarified that in order to establish that by engaging in marketing on the Internet the trader directed its activities to the Member State of the consumers domicile, it is not necessary for the contract between the consumer and the trader to be concluded at a distance. Additionally, in a rather controversial judgment in the Emrek case, the CJEU extended the applicability of the aforementioned provisions and principles even if no causal link exists between the means used to direct the commercial or professional activity to the consumersʹ Member State, and the conclusion of the contract (e.g. cases where the consumer wasnʹt even aware of the traderʹs presence on Internet in the time of conclusion of the contract). By analysing of the aforementioned judgments of the CJEU, the author critically assesses whether the Court has not in fact extended the limits of consumer protection beyond what the drafters of the Brussels Regulation wanted (and perhaps beyond what is needed) and whether this will necessarily apply to the construction of the Rome I Regulation as well. Concerning the language of the website as an indication of the traderʹs intention to direct its commercial activities to the country of the consumerʹs domicile, a danger also exists that both the traders as well as the consumers from the Member States with ʺsmall languagesʺ will be discriminated against.
    Source: Pravo v informacijski družbi (Str. 177-190)
    Type of material - article, component part
    Publish date - 2014
    Language - slovenian
    COBISS.SI-ID - 13739601