The 'Directed Activities' Connecting Factor as a Condition for Applying the Consumer Protection Rules of the Brussels I and the Rome I Regulations in Electronic Commerce

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http://urn.fi/URN:NBN:fi:hulib-201508063141
Title: The 'Directed Activities' Connecting Factor as a Condition for Applying the Consumer Protection Rules of the Brussels I and the Rome I Regulations in Electronic Commerce
Author: Loponen, Maija
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingfors universitet
Date: 2014
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201508063141
http://hdl.handle.net/10138/135343
Thesis level: master's thesis
Discipline: Obligation law
Velvoiteoikeus
Obligationsrätt
Abstract: This Thesis focuses on the interpretation of the ’directed activities’ connecting factor in the context of cross-border electronic commerce in tangible goods. The connecting factor is used as a condition for applying the private interna-tional law consumer protection rules of Regulation (EC) No 44/2001 (the Brussels Regulation) and Regulation (EC) No 593/2008 (the Rome I Regulation). The two-part connecting factor gives that a consumer contract is eligible for protection only if two cumulative conditions are met. Firstly, the business must have directed its activities to consumer’s jurisdiction or several jurisdictions including that. Secondly, the contract must falls within the scope of such activities. Before addressing the main purpose, it is reviewed what kind of consumer protection these Regulations offer. In addition, the significance of these rules is observed in the light of the recent developments in fields of procedural and substantial EU consumer law. The perspective of this study is European. The connecting factor is a product of the Europeanized private international law and it is specifically designed to provide protection for consumer engaging in e-commerce. In order to facilitate consumer trust in e-commerce, the circumstances in which consumers can resort to the protective rules should be clearly defined. However, the practical application of the connecting factor has been ambiguous. The main purpose of this study is to identify those legal facts which are relevant when determining if the requirements set down in the connecting factor are satisfied. In addition, the aim is to clarify how much evidential value these facts can bear in practical situations. The analysis is illustrated with examples of situations in which a consumer can, could or cannot enjoy the protection. The methodological focus is on analyzing the relevant case law of the ECJ. The interpretation established in the case law is complemented by analyzing the preparatory works for the relevant community instruments and Advocate Generals’ Opinions. In addition, visions created in academic debate are reviewed in order to see if they are in line with the autonomous interpretation. This study is mainly concerned with consumers’ interests and claims that consumers should be able to foresee their legal position before concluding a contract. In addition, the study acknowledges that consumers’ interests must be balanced against professionals’ interests. The main finding of this study is that, despite the recent case law and academic debate, the practical application of the connecting factor relies on case-by-case evaluation. Thus it is challenging to create clear guidelines for its application. Firstly, when considering if a website accessible in consumer’s jurisdiction constitutes an activity directed to that country, the evaluation should take into account website features and the professional’s overall activity. Consumers can enjoy the protection only if it is apparent that the professional was minded to conclude contracts with customers from consumer’s jurisdiction. Secondly, when determining whether the contract falls within the scope of the directed activities, the evaluation is based on the circumstances which led to the conclusion of the contract and in which the contract is concluded. It is discovered that, if the contract is concluded through the website, it generally falls within the scope of protection. However, if the contract is concluded by other means, there must be evidence indicating that there is a link between the directed activity and the contract. The general finding is that this fact-specific case-by-case evaluation will continue to cause uncertainty for consumers and professionals engaging in cross-border e-commerce.


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