16/11/2016 - E-COMMERCE: UNFAIR CLAUSES ESTABLISHING APPLICABLE LAW IN CONTRACTS CONCLUDED WITH CONSUMERS

The European Court of Justice rendered a decision (C-191/15 - 2016) regarding online sales contracts concluded with consumers.

The Court was called to decide upon request of the Oberster Gerichtshof (Supreme Court of Austria) in a case involving the owner of a very famous e-commerce platform based in Luxembourg and the Verein für Konsumenteninformation (the Austrian Association for consumer information, ‘the VKI’). The latter argued the unfairness of certain clauses introduced by the Luxembourgian company in its e-commerce contracts and the application of injunctions, within the meaning of Directive 2009/22/EC (for the protection of consumer’s interests).

According to the Court, a contractual term which has not been individually negotiated between the parties must be regarded as unfair if it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

Therefore, a clause under which the contract concluded with a consumer in the course of electronic commerce is to be governed by the law of the Member State in which the seller or supplier is established is unfair so far it is formulated in a way which induces the consumer to believe that only the law of that Member State applies to the contract, without informing the consumer that under Article 6(2) of Regulation No 593/2008 he also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term.

The decision of the Court is available at http://curia.europa.eu/juris/document/document.jsftext=&docid=182286&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=531180.

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