Tuesday, 7 December 2010

ECJ instructs businesses what NOT to publish on their website to keep operations domestic only - case C-585/08 Pammer & C-144/09 Hotel Alpenhof

7 December 2010: ECJ joined cases C-585/08 Pammer and C-144/09 Hotel Alpenhof

I've previously discussed the AG's opinion in these cases: "Does having a website mean you operate worldwide?". You, dear reader, may find the summary of the facts of these cases there as well as an introduction to the legal questions discussed.

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Have you read the previous post? No? I'll give you some more time.

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Now that we are ready to talk business: ECJ repeated most of the arguments of the AG in this case. However, certain detailed instructions to the national courts had been formulated differently so let's start with that.

The ECJ was asked:

"(...) on the basis of what criteria a trader whose activity is presented on its website or on that of an intermediary can be considered to be 'directing' its activity to the Member State of the consumer's doimicile (...)" (Par. 47)

The ECJ mentioned that:

"(...) development of internet communication, (...) makes it more difficult to determine the place where the steps necessary for the conclusion of the contract are taken and at the same time increases the vulnerability of consumers with regard to trader's offeres." (Par. 62)

On one hand the courts have to look at the intention of the traders to turn to citizens of a Member State in order to trade with them. That intention may be implicit in certain methods of advertising. (Par. 63-65) On the other hand, the ECJ recognizes that this intention is not always present in case of advertising online, since it automaticaly has a worldwide reach, regardless of the intention of the trader to target consumers outside the country it is established in. (Par. 68)

The national court needs to establish whether, before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other Member States. (Par.76)

What is not indicative of the trader's intention to direct trade to other MS than the MS where it is established: (Par. 77, 79, 94)

  • email address mentioned on the website
  • geographical address mentioned on the website
  • telephone number (without an international code) mentioned on the website
  • whether the website is passive or interactive
  • the sole fact that the website is accessible in another Member State
  • use of language/currency which is also used in the MS in which trader is established

What is indicative of the trader's intention: (Par. 81, 83, 84)

  • clear offer directed to other Member States designated by name
  • disbursement of expenditure on an internet referencing service to the operator of a search engine in order to facilitate access to the trader's site by consumers domiciled in various MS
  • international nature of the activity at issue offered by the website, such as certain tourist activities
  • telephone numbers with the interational code
  • use of top-level domain name other than that of the MS in which the trader is established
  • use of neutral top-level domain names
  • description of itineraries from one or more other Member States to the place where the service is provided
  • mention of international clientele, e.g. by presentation of accounts written by such consumers
  • websites permits to use different languages/currencies

The ECJ confirmed also the belief of the AG in the Pammer case that a boat excursion that had been subject matter of the contract in this case was a package travel contract. (Par. 45-46)

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