Verein für Konsumenteninformation v Amazon EU Sàrl.
Date: 2016-07-28
35


By its first three questions, which should be considered together, the referring court essentially seeks to know how the Rome I and Rome II Regulations should be interpreted for the purpose of determining the law or laws applicable to an action for an injunction within the meaning of Directive 2009/22 brought against the use of allegedly unlawful contractual terms by an undertaking established in one Member State which concludes contracts by way of electronic commerce with consumers resident in other Member States, in particular in the State of the court seised.
36


As a preliminary point, it should be observed that, as regards the respective scopes of the Rome I and Rome II Regulations, the concepts of ‘contractual obligation’ and ‘non-contractual obligation’ in those regulations must be interpreted independently by reference primarily to the regulations’ scheme and purpose. Account should also be taken, in accordance with recital 7 of each of those regulations, of the aim that those regulations should be applied consistently with each other and with Regulation No 44/2001 (‘the Brussels I Regulation’), which inter alia draws a distinction in Article 5 between matters relating to contract and matters relating to tort, delict and quasi-delict (see judgment of 21 January 2016 in ERGO Insurance and Gjensidige Baltic, C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 43).
37


As regards the concept of ‘non-contractual obligation’ within the meaning of Article 1 of the Rome II Regulation, it must be recalled that the concept of ‘matters relating to tort, delict and quasi-delict’ within the meaning of Article 5(3) of the Brussels I Regulation includes all actions which seek to establish the liability of a defendant and are not related to a ‘contract’ within the meaning of Article 5(1) of the Brussels I Regulation (judgment of 21 January 2016 in ERGO Insurance and Gjensidige Baltic, C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 45).
38


In the context of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36, ‘the Brussels Convention’), the Court has held that a preventive action brought by a consumer protection association for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals is a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the convention (judgment of 1 October 2002 in Henkel, C‑167/00, EU:C:2002:555, paragraph 50), that interpretation also being valid for the Brussels I Regulation (see, to that effect, judgment of 13 March 2014 in Brogsitter, C‑548/12, EU:C:2014:148, paragraph 19).
39


In the light of the aim of consistent application mentioned in paragraph 36 above, the view that, in matters of consumer protection, non-contractual liability extends also to the undermining of legal stability by the use of unfair terms which it is the task of consumer protection associations to prevent (see, to that effect, judgment of 1 October 2002 in Henkel, C‑167/00, EU:C:2002:555, paragraph 42) is fully applicable to the interpretation of the Rome I and Rome II Regulations. It must therefore be considered that an action for an injunction under Directive 2009/22 relates to a non-contractual obligation arising out of a tort/delict within the meaning of Chapter II of the Rome II Regulation.
55


In the examination of terms in an individual action brought by a consumer, the law designated as applicable as the law of the contract may be different from the law designated as applicable to an action for an injunction as the law of the tort or delict. It must be observed in this respect that the level of protection of consumers still varies from one Member State to another, in accordance with Article 8 of Directive 93/13, so that the assessment of a term may vary, other things being equal, according to the applicable law.
64


Under Article 4(1) of Directive 93/13, a contractual term may be declared unfair only after a case-by-case examination of all the relevant circumstances, including the nature of the goods or services which are the subject of the contract.
65


It is for the national court to determine whether, having regard to the particular circumstances of the case, a term meets the requirements of good faith, balance and transparency. The Court nonetheless has jurisdiction to elicit from the provisions of Directive 93/13 the criteria that the national court may or must apply when making such an examination (see, to that effect, judgment of 30 April 2014 in Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraphs 40 and 45 and the case-law cited).
67


In those circumstances, as the Advocate General observes in point 94 of his Opinion, a pre-formulated term on the choice of the applicable law designating the law of the Member State in which the seller or supplier is established is unfair only in so far as it displays certain specific characteristics inherent in its wording or context which cause a significant imbalance in the rights and obligations of the parties.
68


In particular, the unfairness of such a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of Directive 93/13. That requirement must, having regard to the consumer’s weak position vis-à-vis the seller or supplier with respect in particular to his level of knowledge, be interpreted broadly (see, to that effect, judgment of 23 April 2015 in Van Hove, C‑96/14, EU:C:2015:262, paragraph 40 and the case-law cited).
69


Furthermore, where the effects of a term are specified by mandatory statutory provisions, it is essential that the seller or supplier informs the consumer of those provisions (see, to that effect, judgment of 26 April 2012 in Invitel, C‑472/10, EU:C:2012:242, paragraph 29). That is the case of Article 6(2) of the Rome I Regulation, which provides that the choice of applicable law must not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which would have been applicable in the absence of choice.
71


The answer to Question 4(a) is therefore that Article 3(1) of Directive 93/13 must be interpreted as meaning that a term in the general terms and conditions of a seller or supplier which has not been individually negotiated, 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 in so far as it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 6(2) of the Rome I Regulation he also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term, this being for the national court to ascertain in the light of all the relevant circumstances.
74


It follows that the processing of data in the context of the activities of an establishment is governed by the law of the Member State in whose territory that establishment is situated.
76


As the Advocate General states in point 119 of his Opinion, while the fact that the undertaking responsible for the data processing does not have a branch or subsidiary in a Member State does not preclude it from having an establishment there within the meaning of Article 4(1)(a) of Directive 95/46, such an establishment cannot exist merely because the undertaking’s website is accessible there.
77


Rather, as the Court has previously held, both the degree of stability of the arrangements and the effective exercise of activities in the Member State in question must be assessed (see, to that effect, judgment of 1 October 2015 in Weltimmo, C‑230/14, EU:C:2015:639, paragraph 29).