One of the questions that the entrepreneur must consider when doing business on the Internet is what may happen if a consumer wishes to make a judicial claim if they are thought to be affected by non-compliance on the part of the entrepreneur.
In this respect, the old Regulation 44/2001 of the Council of the European Union established a system of protection to the consumer under the consideration that the consumer is the weaker party of the contractual relationship. The essential consequence of this system of protection consisted in that the consumer was able to bring court action in his country of residence against the entrepreneur (“forum actoris” – forum of the actor). In order to activate this protection, it is essential (“conditio sine que non”) that the entrepreneur carries out his business or professional activities in the member state of the place of residence of the claimant or that his business or professional activities are directed, by any means, towards the member state of the country of residence of the consumer.
Where sales by internet are concerned, it is fundamental to understand the concepts “to exercise professional activity” and “to direct professional activity”. This aspect may be studied in detail in the article published on this website, written by Eduardo Vilá: E-COMMERCE AND DISTRIBUTION.
Although this protective measure has been maintained in its form in the new Regulation 1215/2012 (Brussels I recast), its scope has been extended. With the old Regulation 44/2001, the consumer only enjoyed said protection when the entrepreneur had his residence in a member state, however, in the current text of the Regulation, the consumer may bring to his jurisdiction entrepreneurs with residence in other states. Furthermore, this exclusive competence may not be neutralised with a clause of submission to jurisdiction.
In summary, whether a company is domiciled within the European Union or not, and it markets its products through the internet, it is exposed to possible court action in the jurisdictions of the member states.
Vilá Abogados
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9th of March 2015
