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By Rontavian Mack, Charlotte Robin, Paisley Simonnet, University of Montpellier, Centre du Droit de l'Entreprise, Program of Master 2 "Droit du Commerce International"



Contractual freedom to choose the applicable law is the rule in Europe (art. 3 of Rome I Regulation). However, this rule is subject to restrictions with respect to consumer contracts. The content (1) and the scope (2) of these restrictions raise important questions.

1. Content of the restrictions

The European 2009/22/CE Directive related to injunctions for the protection of consumers' interests may have an impact at a national or European level. The European Court of Justice ("ECJ") has recently rendered a decision applicable in this respect.

1.1. Identification of the contextual background of the case


The Amazon EU SARL group used to conclude sales contracts with consumers living in Austria, through a Luxembourgian Amazon company's website. The "Sale Terms and Conditions" corresponding to these sales were issued by Amazon and contained governing law clauses referring to Luxembourgian law. The "Sale Terms and Conditions" provided other clauses in relation to the exchange of client's personal data with suppliers established in Germany, in order to reduce the risks of non-payment. The VKI, an Austrian association involved in consumers' protection brought a claim before the Austrian courts, with the aim of prohibiting Amazon EU from using these clauses, which they considered as unfair. The ECJ's role in the present case was to identify the law applicable to the determination of the unfairness of the clauses figuring in the Sale Terms and Conditions, including the case where they concern transfer of personal data.

1.2. Identification of the law applicable to the unfairness of the terms

According to the ECJ, the law applicable to the claim must not be confused with the law applicable to the examination of the unfairness of the litigious terms. The law applicable to the appreciation of such clauses is determined in conformity with the Rome I Regulation. In most cases, the law applicable is the law of the usual residence of the consumer. However, the parties can still chose another law, but this choice must not deprive the consumer of the protection that would be conferred to him or her by mandatory rules contained in the law that should normally be applicable. According to the ECJ, a clause can be unfair if it generates a significant imbalance between the parties' rights and obligations. To that extent, the Court considers that the unfairness can arise from the drafting of the clause. It must be written in clear and comprehensible terms, and must not mislead the consumer. Moreover, this clause must not give the impression that the choice of law is the only law applicable, when another mandatory provision in favor of the consumer could be applied.

1.3. Identification of the law applicable to personal data

In matters of personal data, article 4 of the 95/46/CE Directive determines the law applicable to these matters, retaining as principal criteria the law of the place of establishment. The ECJ considers that it can be understood from the Personal Data Protection Directive that the law applicable is the law of the country where the person in charge of the data processing has its establishment and where the processing takes place. The Austrian jurisdiction asked whether this article designated the law of the Member state towards which the company leaded its activities. The ECJ considered that the interpretation according to which the access to a website constitutes an establishment is too large and cannot be taken into consideration. Moreover, the ECJ asked the national jurisdiction to identify if, Amazon EU does its data processing in an establishment situated in another Member state than Luxembourg. If the data processing is done in Germany for instance, then it would be the German law that would regulate this process.

2. Scope of the restrictions


2.1. Definition of the notion of "consumer"


2.1.1. European conception of "consumers"

The notion of consumer has an autonomous meaning in the European legal language. This specific meaning has a major impact on consumer protection law and specifically in the Rome I Regulation. Indeed, article 6 of the Rome I Regulation grants specific provisions in regards to consumer contracts, defining the consumer contract as being entered into by "a natural person for a purpose which can be regarded as being outside his trade or profession with another person acting in the exercise of his trade or profession". Besides, the ECJ has regularly reminded that the notion of consumer could not be extended to legal persons. It shall be reminded that even though the core of the definition remains similar in EU law, each European legislative instrument differs in its own definition of a "consumer contract". For instance, the 85/577/EEC Directive related to European Consumer Rights has a specific definition of the economic activity.

2.1.2. National conceptions of "consumers"

Each Member State is free to define the notion of "consumer" for contractual purposes. Some countries provide for a specific provision and others prefer a case-by-case basis. Austria and Germany have provided for a general definition of the consumer to be applied in their national law. The notion of consumer has also been extended to employees in German case law. As a consequence, they are entitled to seize a court in order to review the standard terms of their employment contract, based on the 93/13/EEC Directive related to Unfair Terms. French law used to have another kind of perception. Indeed, the French Consumer Code used to mention "consumer contracts" without defining them. However, since the Ordinance of March 14, 2016, a consumer is defined in a preliminary provision of the Code as "any natural person acting for a purpose which can be regarded as being outside his or her commercial, industrial, artisanal, liberal or agricultural activity". Some may criticize the broadness of its terms, considering that the use of the words "his (...) activity" instead of "an activity" might be too narrow as it excludes de facto unemployed persons from this regime. However, others may say that a "person acting for a purpose (...) outside his or her (...) activity" a fortiori includes persons without any activity at all. French law provides other definitions of consumers that are more specific and one may wonder about their relevancy. It is the case of article L.311-1, 2° which rules loans. This article gives an accurate definition of the consumer in the context of a loan. Therefore, law practitioners sometimes consider that confusion may arise from the intertwining of definitions and that the EU definition should prevail. 2.2. Consequences on European consumers Even though the parties may choose the applicable law to their contract, this law shall not deprive the consumer from the protection granted by the public order of the law that could have been applicable according to article 6 of the Rome I Regulation, in cases of absence of a choice of law. In addition, in certain situations, such as distance and off-premises contracts provided by article L.232-3 of the French Consumer Code, the law states that the choice of an applicable law from a country that is not a Member State of the European Union shall not deprive the consumer from the protection granted by mandatory rules of European law, transposed in national law, when this contract has a close link with a Member State. To apply these provisions, article L.231-1 of the French Consumer Code provides that a tight link is deemed to be established with a Member State if:

- The contract was concluded in the Member State where the consumer has his habitual residence;

- The professional's activity shifts towards the territory of the Member State where the consumer has his residence, subject that the contract fits the framework of this activity;

- The contract was precluded, in this Member State, by an offer specifically made or an advertisement and acts taken by the consumer necessary to the conclusion of the contract;

- The contract was concluded in a Member State where the consumer has travelled after a travel or stay proposal, made directly or indirectly, by the seller, as an incentive to conclude the contract.

2.3. Illustration of the characterization of an unfair clause

In 2011, a French professor had his Facebook account suspended for 5 years after posting an image of a Gustave Courbet painting that portrayed nudity. The professor brought suit against Facebook for $22,567 in damages. Facebook argued that the professor was not a consumer and therefore, was not protected by French consumer law. Therefore, the case should have been governed by the contracted choice of law provision, Californian law, and not French consumer law. However, the professor was finally classified as a consumer, and the French consumer law was applied. As a result of this classification, the "Terms and Services" of Facebook, including choice of law and choice of jurisdiction clauses were superseded by the French Consumer Code. The Tribunal de Grande Instance of Paris ruled the provision was "unfair and abusive". It ruled that under article L. 132-1 of the French Consumer code, Facebook's choice of jurisdiction provision deprives the French consumers of access to French courts. Facebook appealed, and the Court of Appeal of Paris confirmed in 2016, finding that Facebook's terms were unfair. This case has been classified as a choice of jurisdiction case and headlined as such. However, without the professor being classified as a consumer, the case would have been disputed in California courts under Californian law.


Besides not being enforceable, some governing law provisions may be found abusive and may even lead to injunctive relief (article L.524-1 of the French Consumer code).

Additional resources

CASES - European Court of Justice, July 28, 2016 n°C-191/15, Verein für Konsumenteninformation c/ Amazon EU SARL - Paris Court of Appeal, February 12, 2016 n°15/08624, Facebook Inc. v/ D. - Paris Tribunal of First Instance, March 15, 2015 n°12/12401, Facebook Inc. v/ D. LEGAL BASIS France - Article L.231-1 of the French Consumer code - Article L.232-3 of the French Consumer code - Article L.311-1 of the French Consumer code - Article L.524-1 of the French Consumer code Europe - 85/577/EEC Directive, December 20, 1985 (also called Doorstep Selling Directive) - 93/13/EEC Directive, April 5, 1993 - 95/46/CE Directive, October 24, 1995 - 2009/22/CE Directive, April 23, 2009 - 2013/11/UE Directive, May 21, 2013 ARTICLES - The notion of "consumer" in EU law, Library of the European Parliament - Paris court rules against Facebook in French nudity case, BBC News - ECJ Decision VKI v Amazon, Robert Bond - Nude painting furore: court rules Facebook can be sued in France, The Guardian - Le champ d'application de la loi clarifiée: Les nouvelles définitions du consommateur, du professionnel et du non-professionnel - Eclaircissement ... et zones d'ombre, Laurent Abadie, Droit et Patrimone n° 257

Region: European Union, France
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