The European Court of Justice (ECJ) has provided guidance regarding when traders’ websites are considered to direct their activities to a country, resulting in the application of the consumer protection provisions of the Brussels Regulation (the Regulation).

Legal background

The basic rule on jurisdiction in the Regulation is that when a contract has been entered into by a consumer after the trader directed its activities to the consumer’s country, the consumer may sue the trader either in the consumer’s home country or the country of the trader.  However, the trader can only sue the consumer in the consumer’s country.

Decision

The ECJ found that a trader’s website being accessible in countries other than where the trader is established is insufficient in itself to determine that the trader directed its activity to that country.  An email address, geographical address, local telephone number, use of local language or currency displayed on the trader’s website are not sufficient to demonstrate the trader’s intention to conduct business in other countries. Accordingly, the enhanced jurisdictional rules for consumers are not applicable.

The court provided a non-exhaustive list of factors that could be considered evidence that the trader directs its activity to another country, including:

• The international nature of the trader’s activity
• Use of language and currency, not used in the trader’s country of establishment
• Use of telephone numbers with an international code
• Use of a top level domain name (e.g. for Ireland) when the trader is established in another country; and 
• Use of neutral domain names such as “.com”

Comment

The judgment is important in light of the expanding use of the internet by consumers and traders alike.  The factors listed by the ECJ are non-exhaustive, and it will be interesting to see whether national courts expand them.  

For further information please contact Leo Moore.