ius and bits

With a press of the Court of Justice has announced that the dispute between L'Oreal and eBay C-324/09, the 'Mr Jääskinen believes that eBay is generally not liable for trade mark infringements committed by its users its electronic marketplace. Read the rest of this entry »

The judgment of the Court of Justice of the European Union 7.12.2010 , made ​​in Joined Cases C-585/08 and C-144/09, the definition of two actions (just joined) arising between two consumers and two firms and -commerce, the issue concerns the jurisdiction in cross-border relations and it is interesting in relation to two aspects are dealt with it legal:

1. The first aspect refers to the classification of a journey as "all inclusive".

2. The second aspect refers to the classification of business conducted through a website as a "direct" to the Member State of the consumer.

The two cases can be summarized thus:

a) in the first case a consumer buys a boat trip on the Internet merchant, the consumer does not participate in the trip and the company - the Internet - has sold the trip a refund on the cost of the trip (in this case € 3,500, 00 compared to € 5,000.000);

b) in the second case, a consumer has refused to pay the bill for a stay booked through the Internet.

What unites the two disputes, which led to the meeting and its proceedings, as a consumer is covered by both parties to the proceedings and the subject of the dispute concerning the purchase of travel over the Internet.

The Court focuses on the qualification of the first voyage as "all inclusive" recalls his own earlier ruling by stating "the Court has had occasion to declare, as a service to qualify as" all inclusive ", pursuant to art. 2, paragraph 1 of Directive 90/314, is sufficient, first, that the combination of tourist services sold at an inclusive price includes two of the three types of services referred to in that provision, ie transport, housing and other tourist services not ancillary to transport or accommodation which themselves constitute a significant part of the "all inclusive" and, second, that the service exceeds 24 hours or includes an overnight stay (see April 30, 2002 Case C - 400/00, Club - Tour ECR. I - 4051, paragraph 13). "

In light of this interpretation of the dispute in these proceedings is described as traveling "all inclusive" because "in addition to transport, such travel in the merchant ship involved, for a flat fee, accommodation and also that the trip was longer than to 24 hours ".

The second profile, as has been said, is "if the trader has directed his activities at the Member State on whose territory the consumer is domiciled, pursuant to art. 15, no. 1, letter. c) of Regulation n. 44/2001, in order to locate the court of competent jurisdiction to hear and determine root causes. " The Court uses the following criteria to qualify the hermeneutical task of the trader: "In that regard, it must exercise its business in the State in whose territory the consumer is domiciled or to direct its activities, by any means , to that Member State or to several States including that Member State, and the contract must fall within the scope of such activities. " Therefore, the business must: a) be applied in the Member State of the consumer, or b) be directed - by any means - to the state of the consumer.

It would seem, given that the activities of the trader was exerted via the website, which can be no doubt about the possibility of classifying the same activity as "direct" in the Member State of the consumer. However, the Court stated: "It does not follow, however, that the words' activities directed toward" should be interpreted as implying that the mere accessibility of a website in Member States other than where the trader concerned is established. " Therefore, the mere existence of an Internet site is not considered a unique occasion to affirm the classification of an activity as "direct to".

The criterion of "activities directed towards" requires that "the merchant must have manifested their desire to establish business relationship with consumers from one or more other Member States, including the territory of which the consumer is domiciled." The Court therefore continues, stating that "with regard to a contract concluded between a trader and a given consumer, you must then ascertain whether, prior to conclusion of the contract with the consumer the same, there were indications that showed that the trader intended to deal with consumers residing in other Member States, including one on the territory of which the consumer is domiciled, in the sense that he was willing to conclude a contract with these consumers. "

Elements, whose determination as to whether the national court, in the opinion of the Court (it is stated that the list is illustrative and not exhaustive) can be considered as an activity "directed towards" are:

• the international nature of the activity;
• the route guidance from other Member States to go to the place where the trader is established;
• the use of a language or a coin or currency other than the language customarily used in the Member State where the trader is established with the ability to book and confirm a booking in this different language;
• indication of the telephone numbers together with an international dialing code;
• the deployment of financial resources for a positioning service on the Internet in order to make it easier for consumers domiciled in other Member States access to the merchant's site or that of his agent;
• the use of a top-level domain name other than the Member State where the trader is established and
• the mention of an international clientele consisting of customers domiciled in different Member States.

What is worthwhile, in the opinion of the writer, about the elements that relate to the use of financial resources for placement in search engines and the use of a top-level domain name. In my humble opinion, these two elements do not constitute evidence for the qualification of the activity as "direct to". In fact, the use of financial resources for placement on search engines first requires an examination of the financial companies engaged in the business that goes far beyond mere symptoms detected generically as external circumstance. Secondly, I have doubts about the possibility (technical) to direct the positioning in a state rather than in another. The choice of a top-level domain name can not constitute evidence such as the qualification of "direct to" place that collides with the principle of free enterprise. Indeed, the entrepreneur has an interest in acquiring more visibility in an absolute sense by characterizing its Internet activities with a top-level domain name which is usually identified with. Com rather than a. Xx refers to the national context in which is based. Certainly, the TLD (Top Level Domain) does not, in the opinion of the writer, no grounds for the investigation to be made.

However, in a globalized economy and eastern boundaries sena, would actually wonder what would be the elements discretivi, who also placed additional clues such as language and telephone contacts are characteristic of any business, with regard to numbers telephone, are often used VOIP addresses for which it is difficult to allocate territorially company. Similarly, the language (eg English) in some States is that which is spoken like the official language. The euro, then removed any doubt as to the currency.

It is clear that the assessment for the national court and must be made on a case by case basis, but probably should be used with elements other than those stated by the Court's judgment in question.