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1 Researcher at the Interdisciplinary Centre for Law & Information Technology (ICRI) of the KatholiekeUniversiteit Leuven (Belgium) (www.law.kuleuven.ac.be/icri) and Attorney at Law at the Brussels Bar atthe Information Technology Law Department of the law firm Stibbe (www.stibbe.com). Contact address:Interdisciplinary Centre for Law & Information Technology, Katholieke Universiteit Leuven, Tiensestraat41, 3000 Leuven, Belgium, tel. +32 16 32 52 73, fax +32 16 32 54 38, e-mail: frederic.debussere�stibbe.be.The original Dutch version of this article was published in the Belgian-Dutch law review Computerrecht(2002, p. 3–11). The author wishes to thank Prof. Dr. Marta Pertegás Sender of the Universiteit Antwerpen(Belgium) and Prof. Dr. Patrick Wautelet of Stibbe and the Université de Liège (Belgium) for theircomments.

2 Digital Equipment Corporation v. Altavista Technology, Inc., 960 F. Supp. 456, D. Mass. 1997.

International Journal of Law and Information Technology, Vol. 10 No. 3� Oxford University Press 2002

International Jurisdictionover E-Consumer Contracts

in the European Union:Quid Novi Sub Sole?

FREDERIC DEBUSSERÉ1

The Internet has no territorial boundaries.Not only is there perhaps ‘no there there’, the

‘there’ is everywhere where there is Internet access.2

1. IntroductionThe original purpose of the Internet was merely to have a fast and freeexchange of information. Consequently, for a long time, the commercialuse of the Internet was limited to small, specialised enterprises. However,the currently increasing commercial use of the Internet is leading to anincreasing number of contracts being entered into via the electronichighway, not only between enterprises themselves (b2b business) but alsobetween enterprises and consumers (b2c business). Over the last few years,this evolution has led lawyers to pay close attention to the legal aspects ofthis new medium. In this context, one should also consider questions of


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3 This article does not deal with the discussion about the applicable law and the choice of law as regardse-consumer contracts.

4 EC Official Journal 16 January 2001, L 21/1.5 EC Official Journal 10 November 1997, C 340/173 (Amsterdam consolidated version).6 Pursuant to the Protocol on the position of Denmark (EC Official Journal 10 November 1997, C

340/101), this Regulation is not applicable in Denmark. On the basis of Art. 3.1 of the Protocol on theposition of the United Kingdom and Ireland (EC Official Journal 10 November 1997, C 340/99), these twoMember States have used their right to take part in the adoption and application of the Regulation.

7 For more information, see F. Lawrence Street and M.P. Grant, Law of the Internet (Lexis� LawPublishing: Charlottesville, Virgina 2000) 269–288 and 298–361.

8 G. King, ‘E-commerce disputes’ (2000) Communications Law (14) 15.

private international law, since the intrinsic non-geographical nature ofthe Internet touches the territorial frontiers, which private internationallaw is in essence based on.

In this article, an examination is undertaken of the internationaljurisdiction in the European Union (‘EU’) over consumer contractsentered into via the Internet.3 This topic has recently been in the legalspotlight due to the entry into force on 1 March 2002 of CouncilRegulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and therecognition and enforcement of judgments in civil and commercialmatters (‘the Regulation’).4 The Regulation replaces the Brussels Conven-tion of 27 September 1968 on jurisdiction and the enforcement ofjudgments in civil and commercial matters (‘the Convention’) on the basisof Art. 65 of the Rome Treaty establishing the European Community5 in allEU Member States apart from Denmark, and introduces some modifi-cations in the field of consumer protection.6 Since the use of the Internetin the United States of America (‘US’) started earlier and is more advancedthan in Europe, we first provide a brief summary of the e-consumercontracts jurisdiction regime currently in force in the US. Further, weexamine how this regime is dealt with in the Brussels Convention on theone hand and in the Regulation on the other hand; in both cases, theexplanation of the theoretical discussions as regards the conditions isillustrated with a concrete example case. In conclusion, we take a quickglance at the regime that is currently being drafted in the HagueConference on Private International Law.

2. Brief summary of the regime under US law

2.1 General principlesOver the past number of years, US case law as regards e-consumer contractsjurisdiction has grown significantly.7 The trend that has emerged in thiscase law is called ‘long arm’ personal jurisdiction, i.e. the readiness of the UScourts to claim jurisdiction over websites, irrespective of whether thewebsite, its holder or the business behind it is located in the US or not.8 US


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9 B.W.F. Depoorter, ‘Het internationaal privaatrechtelijk probleem op Internet: bevoegde rechter’ inB.W.F. Depoorter, K. De Vulder, G. Schrans and M. Vergote (eds.), Telecom & Internet. Recht in beweging (Mys& Breesch: Ghent 1999) 393; G. King, loc. cit. 15; C.B. Lamm, ‘Assertion of Jurisdiction over Non-U.S.Defendants’ (2000) 624 Practising Law Institute/Litigation and Administration Practice Course Handbook Series57.

10 B.W.F. Depoorter, loc. cit. 392; F.A. Koch, ‘Internationale Gerichtszuständigkeit und Internet’ (1999)Computer und Recht (121) 125; B.B. Sookman, ‘Electronic Commerce, Internet and the Law – A Survey of theLegal Issues in Canada’ (1999) Computer and Telecommunications Law Review (74) 75.

11 Helicopteros Nacionales de Colombia SA v. Hall, 466 U.S. 408 (1984).12 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

law distinguishes between two types of personal jurisdiction, i.e. general andspecific personal jurisdiction, depending on the nature of the defendant’scontacts with the forum state in a given case. The first refers to the authorityof a court to hear any cause of action, regardless of whether the cause ofaction arose from the activities of the defendant within the forum state; thelatter refers to the situation in which the cause of action arises directly fromthe defendant’s contacts with the forum state.9

The starting point in analysing personal jurisdiction in federal cases isthe ‘Long Arm’ Statute in effect in the state in which the court is located, forthe court has to examine whether exercising jurisdiction over thedefendant is allowed under the forum state’s laws. If the answer isaffirmative, then the court must examine whether exercising that jurisdic-tion falls within the limits of the due process principle set forth in theFourteenth Amendment of the American Constitution;10 this principleconsequently clearly constitutes a constitutional restriction on exercisingpersonal jurisdiction.

The Federal Supreme Court has ruled that, in case of general personaljurisdiction, this principle means that jurisdiction over a non-residentdefendant of the forum state may be exercised only if the defendant hashad substantial or continuous and systematic contacts with the forum state.11

However, in case of specific jurisdiction, mere minimum contacts aresufficient for a court to declare itself competent. But, as a compensation forthis lower degree of required intensity of the defendant’s contacts with theforum state, two additional conditions have to be fulfilled cumulatively.First, the defendant must have performed an act or consummated atransaction within the forum, thereby purposefully availing himself of thebenefits of the forum. In this context, the Federal Supreme Court has ruledthat the mere placing of a product into the ‘stream of commerce’, withoutdoing any more, is not an act which is purposefully directed to the US thatpermits the assertion of personal jurisdiction consistent with the dueprocess principle; there must be additional, intentional conduct directedto the forum state.12 Second, the plaintiff must establish that the exercise ofjurisdiction before the court is reasonable, thereby taking into account,amongst other things, the burden on the defendant in defending in the


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13 Ibid.14 R.L. Hoegle and C.P. Boam, ‘The Internet and Jurisdiction. International Principles Emerge but

Confrontation Looms’ (2000) Journal of World Intellectual Property (31) 33; S.J. Newman, ‘Proof of PersonalJurisdiction in the Internet Age’ (2000) 59 American Jurisprudence Proof of Facts 3d.

15 Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418–419 (9th Cir. 1997); Zippo Mfg. Co. v. Zippo Dot Com, Inc.,952 F. Supp. 1119, 1124 (W.D. Pa. 1997).

16 Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418–419 (9th Cir. 1997); R.L. Hoegle and C.P. Boam, loc. cit.33.

17 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).18 Mink v. AAAA Development LLC, 190 F.3d 333 (5th Cir. 1999); Bensusan Restaurant Corp. v. King, 126 F.3d

25 (2nd Cir. 1997); Resnick v. Manfredy, 52 F. Supp. 2d 462 (E.D. Pa. 1999); Molnlycke Health Care AB v. DumexMecial Surgical Products Ltd., 64 F. Supp. 2d 448 (E.D. Pa. 1999); Edberg v. Neogen Corp., 17 F. Supp. 2d 104 (D.Conn. 1998); R.L. Hoegle and C.P. Boam, loc. cit. 33.

19 Barett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999).20 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997).

forum and the plaintiff’s and the forum state’s interest in adjudicating thedispute.13

2.2 Application to the InternetIn order to examine whether or not the minimum contacts and purposefulavailment conditions are fulfilled in the field of jurisdiction over websites,US courts have grouped websites into three categories along a ‘slidingscale’.14

The first category are the so-called ‘active’ websites, i.e. websites that areused both to transmit the product or services purchased (e.g. downloadingcomputer software) and to obtain payment (e.g. by transmission of thepurchaser’s credit card number or banking information).15 A websiteholder-defendant’s use of such a website to obtain and maintain contactwith the forum state always fulfils the two aforementioned conditions.16

The second category are the so-called ‘passive’ websites, i.e. websites thatdo ‘little more than make information available to those who are interestedin it’ (e.g. by posting information about the website holder’s or sponsor’sproducts).17 Holding such a website is not sufficient to justify the exerciseof personal jurisdiction;18 even when holding a passive website is coupledwith posting of messages to ‘listservs’ containing addressees within theforum state and to newsgroups accessible within the forum state, minimumcontacts do not exist without proof of more traditional contacts with theforum.19

The third (in-between) category are the so-called ‘interactive’ websites,i.e. websites whereby the product or services being sold cannot be directlytransmitted via the Internet (e.g. a paper book or an automobile), butwhereby the website itself allows for the exchange of information betweenthe visitor to the website and the host computer. In such cases, the exerciseof information is determined by examining both the degree of interactivityand the commercial nature of the exchange of information.20 It must bepointed out that there is some dissension in US case law as regards the



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21 G. King, loc. cit. 16.22 For a discussion, see B.W.F. Depoorter, loc. cit. 394–396; R.L. Hoegle and C.P. Boam, loc. cit. 34–37; F.A.

Koch, loc. cit. 125–129; B.B. Sookman, loc. cit. 75–82.23 Blackburn v. Walker Oriental Rug Galleries, Inc., 1998 U.S. Dist. Lexis 4517 (E.D. Pa. 1998); McDonough v.

Fallon McElligott, Inc., U.S. Dist. Lexis 15139 (S.D. Cal. 1996).24 Shearson Lehman Hutton v. TVB, EU CoJ 19 January 1993, nr. C–89/91 (Rec. 1993, I–139).25 This article does not discuss case law and legal doctrine as regards the term ‘consumer’; when analysing

the example case, we suppose that all conditions in respect of this term are fulfilled.26 This issue is not further discussed.

application of this criteria to concrete cases;21 some judges require a highdegree of interactivity, others do not.22

In conclusion, US courts do not have jurisdiction over a website merelybecause it is accessible in the US or in a US state, otherwise all websiteholders would be subject to their jurisdiction.23

3 The regime under the Convention

3.1 General principlesBefore 1 March 2002, the international consumer contracts jurisdictionregime in the EU was laid down in Arts. 13–15 of the Convention. Theseprovisions contain a special protection regime vis-à-vis Arts. 2 and 5 of theConvention. This protection regime aims at avoiding that consumers, asthe economically weaker and legally less experienced party, have to bringproceedings against the other party in the State in which that other party isdomiciled.24 To that end, Art. 14 of the Convention prescribes that aconsumer25 may bring proceedings against the other party to the contracteither in the courts of the state in which that party is domiciled or in thecourts of the state in which he is himself domiciled, it being understood that thechosen state has to be a contracting state to the Convention. In addition,Art. 15 of the Convention limits the possibility to depart from Art. 14 by anagreement.26

However, not all consumer contracts fall within the scope of the specialprotection regime of Art. 14, because its field of application is limited tothree situations: (1) a contract for the sale of goods on instalment creditterms, (2) a contract for a loan repayable by instalments, or for any otherform of credit, made to finance the sale of goods, and (3) any othercontract for the supply of goods or services. However, in the latter case, twoadditional conditions must be fulfilled: (a) before the conclusion of thecontract, the other party has addressed a specific invitation to theconsumer or advertised in the state in which the consumer is domiciled,and (b) the consumer has taken the steps necessary for the conclusion ofthe contract in the state in which he is himself domiciled. These two


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27 H. van Houtte, ‘Uitsluitende bevoegdheidsgronden’ in H. van Houtte and M. Pertegás Sender (eds.),Europese IPR-verdragen (Acco: Leuven 1997) (41) 68.

28 UN Treaty Series vol. 1489, 3.

additional conditions aim at assuring sufficient ties between the case andthe jurisdiction of the state in which the consumer is domiciled.27

3.2 Case study exampleIn this article, the explanation of the theoretical discussions as regards theE-Consumer contracts regime under the Convention as well as under theRegulation will be illustrated with the following example case. A boy agedtwenty-two, whose is domiciled in Belgium, is on holiday in Australia. He isof Russian nationality, his mother tongue is Swedish and he speaks fluentlyEnglish and French. Being a real bookworm, he has bought a book via theInternet two weeks before his departure for Australia. He has bought thebook on the website of a seller that is domiciled in Sweden and the domainname of the website is www.stockholmbokhandel.se. The text on thewebsite is in Swedish only and the prices are indicated in Swedish crownsonly. After having selected the book, he has typed in his credit card numberand his address and clicked on the ‘OK’-button with the mouse. Accordingto the general terms and conditions on the website, the book will bedelivered within five days. However, on the day of his departure, the bookwas still not delivered. Some days after his arrival in Australia, local cultureand nature can no longer hold his attention. Since he has not yet receivedthe book he had ordered, he decides to buy via the Internet a computergame via his laptop in his hotel in Australia. He buys the game on thewebsite of a seller that is domiciled in France and the domain name of thewebsite is www.commerce-europe.com. The text on the website is in Frenchand English and the prices are indicated in euro. After having selected thegame, he types in his credit card number and clicks on the ‘OK’-buttonwith the mouse; the game is downloaded on the hard disk of his laptopdirectly. However, the game does not function properly. Back home, hewrites some letters to both sellers, but there is no reaction at all. Finally, hedecides to sue both sellers.

3.3 Application to the Internet

3.3.1 The legal status of digital products

Due to their intangible nature, legal doctrine asks the question whether ornot digital products (e.g. computer software) can be considered as ‘goods’in the sense of Art. 13 of the Convention (and at the same time Art. 1 of theUnited Nations Convention for the International Sale of Goods of 11 April1980 (‘CISG’)28 and Art. 5 of the EC Convention on the Law Applicable to



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29 EC Official Journal 26 January 1998, C 27/1 (consolidated version).30 M. Foss and L.A. Bygrave, ‘International Consumer Purchases through the Internet: Jurisdictional

Issues pursuant to European Law’ (2000) International Journal of Law and Information Technology (99) 108.31 In their opinion, the exclusion of electricity from the field of application of the Hague Sale

Conventions is not indicative for immaterial goods in general, since this exclusion is based on the fact thatnot all jurisdictions of the Contracting Parties qualify contracts for the supply of energy as sale contracts.See K. Boele-Woelki, ‘Conflictenrechtelijke aspecten van Internetkoopovereenkomsten’ in F.W. Grosh-eide and K. Boele-Woelki (eds.), Europees Privaatrecht. Opstellen over Internationale Transacties en IntellectueleEigendom (Koninklijke Vermande: Lelystad 1997) (139) 154.

32 Ibid.; M. Fallon, ‘Le droit applicable à la protection de l’usager sur l’interréseaux dans le contextecommunautaire’ in P. Nihoul (ed.), Le droit communautaire et les résaux de télécommunication et de télédiffusion:la protection des consommateurs et des entreprises dans la société de l’information (Bundesanzeiger: Cologne 2000)(227) 242.

33 K. Boele-Woelki, ‘Conflictenrechtelijke aspecten van Internetkoopovereenkomsten’ in F.W. Grosh-eide and K. Boele-Woelki (eds.), Europees Privaatrecht. Opstellen over Internationale Transacties en IntellectueleEigendom (Koninklijke Vermande: Lelystad 1997) (139) 154.

34 Ibid.35 E. Guldix, ‘Het internationaal privaatrecht in cyberspace’ in K. Byttebier, R. Feltkamp and E. Janssens

(eds.), Internet en Recht – Internet et le Droit (Maklu: Antwerp 2001) (151) 186; M. Foss and L.A. Bygrave, loc.cit. 112.

Contractual Obligations of 19 June 1980)29. The term ‘goods’ is notdefined in any of these three conventions, the question is not dealt with intheir preparatory documents and the European Court of Justice has not yethad the opportunity to issue a ruling thereon.30

After having examined all possible interpretations, most authors eventu-ally are of the opinion that digital products – despite their intangiblenature – can be considered as ‘goods’ in the sense of the threeaforementioned conventions. They base their opinion on the followinggrounds. First, they consider that it cannot be deducted from theconventions that the contracting parties wished to exclude digital prod-ucts, all the more since they do not exclude immaterial goods inprinciple.31 Second, they think that an extensive interpretation of the term‘goods’ is legitimated by the argument that the three conventions, as allother written laws, have to be interpreted in accordance with changingeconomic and technical circumstances, if one does not want them tobecome antiquated and lose value.32 Third, in their opinion, a principalqualification of digital products as ‘goods’ would correspond to thefrequent use of the electronic highway by enterprises.33 Fourth, as regardsthe CISG, this qualification would also fit in the CISG’s objectivementioned in its preamble, i.e. promoting the development of inter-national trade through uniform rules.34 Fifth, they think that the con-sumer’s need for the special protection regime in buying digital productsdoes not significantly differ from this need in buying ‘traditional’ goods. Intheir opinion, the functional and economical finality of both types oftransactions are essentially the same; the medium through which goods aredelivered, would merely be of marginal significance for the consumers’wishes and expectations and the legal status of the goods.35 Sixth, theconsequence of not considering digital products as goods would be that aconsumer of these products would never be entitled to rely on the special


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36 M. Foss and L.A. Bygrave, loc. cit. 112–113.37 Ibid., 113. For an in-depth analysis of this topic, see H. Schmitt, ‘“Intangible Goods” in Online-

Kaufverträgen und der Anwendungsbereich des CISG’ (2001) Computer und Recht 145–155.38 These situations are not further discussed, since they do not lead to specific questions with regard to

the Internet.39 Y. Brulard and P. Demolin, ‘Les transactions commerciales avec les consommateurs sur Internet’ in É.

Montero (ed.), Internet face au droit (Story-Scientia: Brussels 1997) (1) 52; P. Péters, ‘L’internet et laprotection des consommateurs’ in P. Mandoux and C. Doutrelepont (eds.), Internet sous le regard du droit(Éditions du jeune barreau de Bruxelles: Brussels 1997) (131) 144.

protection regime, which would not comply with the basic objectivethereof (see supra).36

Should digital products not be considered as goods, then some authorsargue that their delivery has to be qualified as a supply of a ‘service’, so thatthey do fall within the field of application of Art. 13 of the Convention.They thereby refer to the case law of the European Court of Justice in lightof the four freedoms in EU law, according to which each commercial activityhas to be qualified as either a good or a service.37

As regards the analysis of the example case, this point of view implies thatthe computer game falls within the field of application of Art. 13 of theConvention.

3.3.2 The first condition: Before the conclusion of the contract, the other partyhas addressed a specific invitation to the consumer or advertised in the state inwhich the consumer is domiciled

As already mentioned above, not all consumer contracts fall within thefield of application of Art. 13 of the Convention. If the contract concernedis neither a contract for the sale of goods on instalment credit terms nor acontract for a loan payable by instalment or for any other form of credit,made to finance the sale of goods,38 then the first condition for the contractto fall within the field of application of Art. 13 of the Convention is that,before the conclusion of the contract, the other party has addressed aspecific invitation to the consumer or advertised in the state in which theconsumer is domiciled. This condition aims at protecting ‘passive’consumers against ‘aggressive’ traders that approach consumers in theireasy chair. Consequently, ‘active’ consumers, i.e. consumers who comeinto contact with the trader on their own initiative, are excluded from thespecial protection regime. The rationale of this condition is that an activeconsumer could reasonably have expected to have to bring the other partyto a foreign court in case of a dispute if that other party is domiciled inanother state.

Legal doctrine is divided into three groups as to whether or not, and if so,to what extent, the distinction between ‘active’ and ‘passive’ consumers canor has to be applied on consumer contracts entered into via the Internet.39

An additional difficulty is that neither the Convention nor its preparatorydocuments define the terms ‘specific invitation’ and ‘advertisement’.



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40 M. Lubitz, ‘Jurisdiction and Choice of Law for Electronic Contracts: an English Perspective’ (2001)Computer und Recht International (39) 41.

41 A. Cruqenaire and C. Lazaro, ‘La loi applicable aux contrats conclus via Internet – Entre les eauxtroubles de la convention de Rome et les eaux agitées de la directive sur le commerce électronique’ in X., Lecommerce électronique: un nouveau mode de contracter? (Éditions du Jeune Barreau de Liège: Liège 2001) (259)(294–297); C.E. Drion, ‘Kanttekeningen bij het preadvies van Maurice V. Polak “Internationaalprivaatrecht: een vangnet voor het Internet”’ (1998) Computerrecht (111) 114; G. Kaufmann-Kohler,‘Internet: mondialisation de la communication – mondialisation de la résolution des litiges?’ in K.Boele-Woelki and C. Kessedjian (eds.), Which Court Decides Which Law Applies? – Quel tribunal décide? Queldroit s’applique? (Kluwer Law International: The Hague/London/Boston 1998) (89) 138–139; M.V. Polak,‘Internationaal privaatrecht: een vangnet voor het Internet?’ in A.W. Koers, M.V. Polak, Y. Buruma and P.B.Hugenholtz (eds.), Recht en Internet (W.E.J. Tjeenk Willink: Deventer 1998) (59) 85–86 and 106.

42 P. Mankowski, ‘E-Commerce und Internationales Verbraucherschutzrecht’ (2000) MultiMedia undRecht-Beilage, vol. 7 (22) 24.

43 P. Stone, ‘Internet Consumer Contracts and European Private International Law’(2000) Information &Communications Technology Law (6) 8.

A first group of authors is of the opinion that holding a commercialwebsite always complies with the first condition, even if that website isaccessible everywhere in the world.40 According to this point of view, aconsumer is thus always ‘passive’, or, as said authors formulate, thedistinction between ‘active’ and ‘passive’ consumers, at least as regardsE-Consumer contracts, has to be abolished.41 These authors choose for amaximum consumer protection; they deem the protection regime tooimportant for the Internet to be exempted from private internationalconsumer protection law and point out that the current conditions inrespect of the coming about of a contract date from the pre-Internet era.One author adds thereto that there is in fact no contact between theconsumer and the website of the other party until that other party, bymaking a website, has first actively created the possibility for the consumerto come into contact with its website. He compares with advertisements in amagazine that first has to be bought by the consumer in a shop.42 Anotherauthor is of the opinion that traders that use the Internet do not have to betreated differently from ‘traditional’ traders, and that depriving theE-Consumer from the protection regime would imply an arbitrarypreference for a certain way of trading, which would run counter to thefree market and fair competition in the EU.43

A second group of authors is of the opinion that holding a commercialwebsite never complies with the first condition, and thus that a consumer isalways ‘active’ and is never entitled to rely on the special protection regime.

First, as regards the aspect ‘addressing a specific invitation to theconsumer or advertising’, they think that it is not the other party but ratherthe consumer who actively enters the national market of the state in whichthe consumer is domiciled, since the latter determinedly surfs to a website.In their opinion, finding goods on the Internet requires a certain level ofexperience and advertising requires more action than the mere holding ofa website; they argue the latter by referring to the fact that the term‘advertisement’ in Art. 13 of the Convention is coupled with the term


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44 K. Boele-Woelki, ‘De functie van het IPR bij Internetgeschillen. Bespreking van het preadvies van M.V.Polak “Internationaal privaatrecht: vangnet voor het Internet?” (1998) Nederlands Juristenblad (1028) 1030;Y. Poullet, ‘Transaction via internet et protection des consommateurs’ in J. Stuyck and E. Ballon (eds.),Verkoop op afstand en telematica. Juridische aspecten – Vente à distance et télématique. Aspect juridiques (KluwerRechtswetenschappen België: Deurne 1997) (125) 144; M.D. Powell and P.M. Turner-Kerr, ‘Putting the E–in Brussels and Rome’ (2000) Computer Law & Security Report (23) 24; F. Sweerts, ‘Internet – Les sitesbancaires veulent s’ouvrir au consommateur européen’ (2000) Bank- en Financiewezen (257) 263; S. van derHof, ‘De Internetconsument en het internationaal privaatrecht’ (1998) Tijdschrift voor Consumentenrecht(424) 428; S. van der Hof, ‘De internationale on-line consumentenovereenkomst’ (2000) http://www.nvvir.nl/doc/H5.pdf, 4.

45 B.W.F. Depoorter, loc. cit. 398.46 K. Boele-Woelki, ‘De functie van het IPR bij Internetgeschillen. Bespreking van het preadvies van M.V.

Polak “Internationaal privaatrecht: vangnet voor het Internet?” (1998) Nederlands Juristenblad (1028) 1030;C. Glatt, ‘Comparative Issues in the Formation of Electronic Contracts’ (1998) International Journal of Lawand Information Technology (34) 64.

47 J. Erauw and R. Steennot, ‘Actualia inzake internationaal privaatrecht bij grensoverschrijdendeovereenkomsten’ in X., Privaatrecht in de reële en virtuele wereld (Kluwer: Antwerp 2002) (781) 819; L. RolinJacquemyns and T. Verbiest, ‘L’offre de services et produits financiers sur internet’ (2000) Tijdschrift voorBelgisch Handelsrecht (71) 72; R. Steennot, ‘Internationaal privaatrechtelijke aspecten van middels internetgesloten (consumenten)overeenkomsten’ (2000) DOAR (192) 193–194; T. Verbiest and É. Wéry, Le droit del’internet et de la société de l’information. Droits européen, belge et français (De Boeck & Larcier: Brussels 2001) nr.973.

‘specific invitation’, which, in their opinion, clearly implies an active stepon the part of the consumer.44 To underpin their point of view, theseauthors also refer to the technical functioning of surfing on the Internet: Ifsomeone surfs to a website, then that person orders his browser to makecontact with a Universal Resource Locater (‘URL’) and a website addresson the Internet, and when the contact is made, then the host server of theURL dispatches the contents of the requested website; the browser thuspulls the information from the Internet and brings it to the surfer’s server,whereupon the information appears on the surfer’s screen.45

Second, as regards the aspect ‘in the state in which the consumer isdomiciled’, they are of the opinion that a website can never be sufficientlydirected to a particular state, since a website is accessible everywhere in theworld.46

A third group of authors adhere to a ‘middle ground’ point of view andare of the opinion that the special protection regime can never be grantedor denied a priori; they argue in favour of a case-by-case examination. Some ofthese authors illustrate the impossibility to qualify a consumer as ‘active’ or‘passive’ a priori by referring to some types of subtle techniques thatwebsite holders use to attract consumers to their website, for instance bymaking use of ‘banners’, by which consumers are led to another websitewithout having asked for it.47

First, as regards the aspect ‘addressing a specific invitation to theconsumer or advertising’, they think that the degree of ‘activity’ or‘passivity’ of the website holder and that of the consumer correlatedthereto have to be evaluated according to the degree of interactivity of thewebsite. Consequently, in their opinion, ‘advertising’ requires a certain



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48 J.-M. Niemann, ‘Webvertisements Covered by Art. 5(2) Rome Convention?’ (2000) CommunicationsLaw (99) 100.

49 Ibid.; J.E.J. Prins and S.J.H. Gijrath, Privaatrechtelijke aspecten van elektronische handel. Juridischeaandachtspunten voor Internet Service Providers (W.E.J. Tjeenk Willink: Deventer 2000) 153; G. Spindler,‘Internationales Verbraucherschutzrecht im Internet – Auswirkungen des geplanten neuen Verordnungdes Rates über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Ent-scheidungen in Zivil- und Handelssachen’ (2000) MultiMedia und Recht (18) 20–21.

50 C.E. Drion, loc. cit. 115; M. Foss and L.A. Bygrave, loc. cit. 120; S. Francq, ‘Internet: un monde sansfrontières? La loi applicable aux contrats conclus sur Internet’ (2000) Revue Ubiquité (47) 56; T. Verbiestand É. Wéry, op. cit. nr. 948, p. 488.

degree of interactivity between the website and the consumer, so thatmerely putting commercial information on a website does not constitutean advertisement.48

Second, as regards the aspect ‘in the state in which the consumer isdomiciled’, they are of the opinion that there have to be sufficient tiesbetween the website and the state in which the consumer is domiciled. Totheir mind, a website must be deliberately targeted on at least that state.49 Thedegree of deliberately targeting can be evaluated by taking into accountsome indications such as the language of the domain name and the text onthe website, the currency that is used, a reference to the fiscal regime thegoods offered are subject to in a certain state, a reference in local media tothe domain name of the website, etc.50

It is clear that this ‘middle ground’ point of view, as regards both aspects,is in keeping with the aforementioned US case law ((inter)activity andpurposeful availment).

As regards the analysis of the example case, the three different point ofviews in legal doctrine outlined above have the following implications. Ifone adheres to the point of view of the first group, then both the purchaseof the book and that of the computer game would fall within the field ofapplication of the special protection regime. If the opinion of the secondgroup is supported, then neither the purchase of the book nor that of thecomputer game would fall within the scope of the protection regime. If oneshares the ‘middle ground’ point of view, then the analysis runs as follows.The website of the Swedish seller as well as that that of the French sellerhave an interactive nature, so that, as regards the aspect ‘addressing aspecific invitation to the consumer or advertising’, the condition isfulfilled. However, as regards the aspect ‘in the state in which the consumeris domiciled’, it can be derived from the data on the website of the sellerthat is domiciled in Sweden, that that website is not deliberately targetedon the state in which the boy is domiciled, i.e. Belgium: the top leveldomain name is ‘se’ (which unarguably refers to the Swedish territory), thesecond level domain name is in Swedish and contains a reference to the cityof Stockholm, the text on the website is in Swedish only and the prices areindicated in Swedish crowns only. Consequently, as regards the purchase ofthe book, the boy cannot rely on the special protection regime of Art. 14 of


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51 M. Foss and L. Bygrave, loc. cit. 124; J.-M. Niemann, loc. cit. 100.52 H. van Houtte, loc. cit. 69.53 A.-M. de Matos, ‘Consommation transfrontière: d’un espace cloisonné à un espace judiciaire

européen’ (2000) Revue Européenne de Droit de la Consommation (151) 183; R. Steennot, loc. cit. 195; S. van derHof, ‘De Internetconsument en het internationaal privaatrecht’ (1998) Tijdschrift voor Consumentenrecht(424) 429.

54 B.W.F. Depoorter, loc. cit. 403–404.

the Convention. At first sight, the website of the seller that is domiciled inFrance is not deliberately targeted on the Belgian territory either, but itnevertheless contains some indications that it is inter alia focussed on theBelgian territory: the top level domain name is ‘com’ (which does not apriori exclude a focus on the Belgian territory, since ‘com’ refers to thecommercial nature of the website and sometimes websites of sellers that aredomiciled in Belgium end with this suffix), the second level domain nameis at the same time in French and in English (French is one of the threeofficial languages in Belgium and most Belgians speak English), the text onthe website too is in French as well as in English and the goods are priced ineuro (the euro is now the official Belgian currency). Consequently, asregards the purchase of the computer game, the boy would possibly beentitled to rely on the special protection regime.

3.3.3 The second condition: The consumer has taken the steps necessary for theconclusion of the contract in the state in which he is himself domiciled

In order for the consumer to be entitled to rely on the special protectionregime, he must have taken the steps necessary for the conclusion of thecontract in the state in which he is himself domiciled. Some examples of‘steps necessary for the conclusion of the contract’ are the typing in of acredit card number, clicking on ‘Enter’ or on ‘OK’ with the keyboard orthe mouse.51 It is, however, not required that the conclusion of the contracttakes place in the state in which the consumer is domiciled.52 Some authorspoint out that there could be problems in respect of evidence, since, in anInternet environment, it is very difficult and sometimes even impossible tofind out where the consumer has taken the necessary steps;53 one of them,for instance, remarks that several types of technical operations on theInternet, such as caching, result in the impossibility to make sure about theexact geographical location of the surfer.54

As regards the analysis of the example case, this condition implies thatthe purchase of the book – provided that all other conditions are fulfilled –falls within the field of application of the special protection regime, andthat the purchase of the computer game does not. For, the steps necessaryfor buying the book have taken place in the state in which the boy isdomiciled (Belgium), whereas the steps necessary for buying the computergame have taken place in Australia. Personally, we adhere to the opinionthat, in the Internet era and taking account of the increasing mobility of



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55 L. Guinotte and D. Mougenot, ‘Quelles procédures pour le commerce électronique?’ in X., Le commerceélectronique: un nouveau monde de contracter? (Éditions du Jeune Barreau de Liège: Liège 2001) (301) 340; E.Guldix, loc. cit. 192; C. Kessedjian, ‘Internet et le Règlement des différends’ in F.W. Grosheide and K.Boele-Woelki (eds.), European Private Law. Articles on International Commercial Contracts and IntellectualProperty. E-Commerce Issue, Molengrafica Series (Koninklijke Vermande: Lelystad 2000) (69) 89; M. PertegásSender, ‘Les consommateurs internautes face au nouveau droit de la procédure internationale: du régimeconventionnel au régime communautaire’ (2001) Journal des tribunaux (191) 192.

persons as well as communication techniques (e.g. laptops and multimediamobile phones), this condition is unrealistic and outmoded.55

4 The regime under the Regulation

4.1 General principlesAs already mentioned above, on 22 December 2000, the EU Counciladopted the Regulation, which replaces the Convention in all EU MemberStates except for Denmark on 1 March 2002. Art. 15 of the Regulationmaintains the Convention’s special consumer protection regime butintroduces some modifications as regards its field of application.

The first two situations set forth in Art. 13 of the Convention, i.e. (1) acontract for the sale of goods on instalment credit terms, and (2) a contractfor a loan repayable by instalments, or for any other form of credit, made tofinance the sale of goods, have been maintained in the Regulation(respectively Art. 15.1.a and 15.1.b). However, the third situation with itstwo additional conditions, i.e. ‘any other contract for the supply of goods, if(a) before the conclusion of the contract, the other party has addressed aspecific invitation to the consumer or advertised in the state in which theconsumer is domiciled, and (b) the consumer has taken the steps necessaryfor the conclusion of the contract in the state in which he is himselfdomiciled’, has been removed and replaced by another one. Under theRegulation, the third situation, set forth in Art. 15.1.c, is the following: ‘inall other cases, (a) the contract has been concluded with a person whopursues commercial or professional activities in the Member State of theconsumer’s domicile or, by any means, directs such activities to thatMember State or to several States including that Member State, and (b) thecontract falls within the scope of such activities.’

4.2 Application on the Internet

4.2.1 The legal status of digital products

When reading Art. 15.1.c of the Regulation, one immediately notices thatthe words ‘contract for the supply of goods’ and ‘contract for the supply ofservices’ have been removed and replaced by the words ‘in all other cases’.


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56 Some authors are of the opinion that it would have been better to state explicitly in the preparatorydocuments that digital goods fall within the field of application of the special protection regime: M. Fossand L. Bygrave, loc. cit. 136–137.

57 It has to be pointed out that Art. 15.1.c of the Regulation does not prescribe that the other party has todirect his website to the consumer as a person but to the state in which the consumer is domiciled.

58 Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement ofjudgments in civil and commercial matters, COM(1999) 348 final, EC Official Journal 28 December 1999, C376 E/1.

59 One author remarks that it will not always be easy to determine the degree of interactivity: L. Gillies,‘Jurisdiction for Consumer Contracts – European Union: Modified Rules of Jurisdiction for ElectronicConsumer Contracts’ (2001) Computer Law & Security Report (395) 397.

Most likely, the EU legislator has wished to give an affirmative answer to thequestion in legal doctrine of whether or not digital products can bequalified as ‘goods’.56

As regards the analysis of the example case, this modification impliesthat now not only the purchase of the book but also that of the computergame falls within the field of application of the special protection regime.

4.2.2 The new condition: The contract has been concluded with a person whopursues commercial or professional activities in the Member State of theconsumer’s domicile or, by any means, directs such activities to that Member Stateor to several States including that Member State

This new condition aims at putting an end to the discussion in legaldoctrine and the legal uncertainty in practice with regard to the questionof whether or not e-consumers have to be qualified as ‘active’ or ‘passive’consumers and consequently whether or not they can rely on the specialprotection regime. For, the third situation of the protection regime’s fieldof application is no longer based on the distinction between ‘active’ and‘passive’ consumers; one now only has to take account of the question ofwhether or not the other party directs his activities to, inter alia, the state inwhich the consumer is domiciled.57

However, the Regulation does not define the term ‘directing to’. Asregards the Internet environment, one can find the following guidelines inits preparatory documents.

In the comments on its initial Proposal for a Regulation, the EuropeanCommission said that ‘the concept of activities pursued in or directed towards aMember State is designed to make clear that point (3) applies to consumer contractsconcluded via an interactive website accessible in the State of the consumer’sdomicile’.58 Consequently, in the Commission’s opinion, two conditionsmust be fulfilled for a website to ‘direct to’ the Member State in which theconsumer is domiciled.

First, a website must have an interactive nature. Consequently, the merepassive distribution of commercial information via a website cannot beconsidered as ‘directing to’; consumers must at least have to possibility toenter into an agreement on line.59 It has to be noticed that with this



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60 It is not clear whether the Commission will, as in the US, distinguish between active, interactive andpassive websites, or only between interactive and passive websites.

61 For the comments of the President of the Committee on Legal Affairs and the Internal Market of theEuropean Parliament on the new regime as interpreted by the European Commission, see A. PalacioVallelersundi, ‘Le commerce électronique, le juge, le consommateur, l’entreprise et le Marché intérieur:nouvelle équation pour le droit communautaire’ (2001) Revue du Droit de l’Union Européenne 5–26.

62 EC Official Journal 17 May 2001, C 146/97.63 EC Official Journal 17 May 2001, C 146/98.

statement, the European Commission has adopted a terminology andconcept that originates from US case law and has adhered to theaforementioned ‘middle ground’ point of view in European legaldoctrine.60

Second, a website must be accessible in the EU Member State in which theconsumer is domiciled. Recital 13 of the Commission’s initial Proposalcomments on this condition as follows: ‘electronic commerce in goods or servicesby a means accessible in another Member State constitutes an activity directed to thatState.’ Consequently, in the Commission’s opinion, besides an examinationof the degree of interactivity of the website, no evaluation has to made ofthe website’s degree of deliberately targeting to the state in which theconsumer is domiciled, which implies that factors as the language(s),currency/currencies, etc. used on the website, do not have to be taken intoaccount. Since any website is almost always accessible in all EU MemberStates, this second condition implies that any website holder who isdomiciled in a EU Member State can be sued in any EU Member State,irrespective of whether or not he wished to do business in the MemberState concerned.

The European Parliament considered this implication far too excessiveand proposed an amendment according to which the website’s degree ofdeliberately targeting to the state in which the consumer is domiciled doeshave to be taken into account; consequently, the mere accessibility of thewebsite in the state in which the consumer is domiciled, would not besufficient.61 It proposed to amend the aforementioned Recital 13 asfollows: ‘electronic commerce in goods or services by a means accessible inanother Member State constitutes an activity directed to that State where theon-line trading site is an active site in the sense that the trader purposefully directshis activity in a substantial way to that other State.’62 In addition, it proposed toamend Art. 15 by adding the following paragraph: ‘The expression ‘directingsuch activities’ shall be taken to mean that the trader must have purposefully directedhis activity in a substantial way to that other Member State or to several countriesincluding that Member State. In determining whether a trader has directed hisactivities in such a way, the courts shall have regard to all circumstances of the case,including any attempts by the trader to ring-fence his trading operation againsttransactions with consumers domiciled in particular Member States.’63

However, in the comments on its Amended Proposal, the Commissionexplicitly rejected these proposed amendments: ‘Parliament proposes a new


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64 Amended proposal for a Council Regulation on jurisdiction and the recognition and enforcement ofjudgments in civil and commercial mattes, COM(2000) 689 final, EC Official Journal 27 February 2001, C 62E/243.

65 Statement on Articles 15 and 73 of 14 December 2000, 1st Paragraph, 4th Alinea,http://register.consilium.eu.int/pdf/en/00/st14/14139en0.pdf.

66 Ibid., 1st Paragraph, 3rd and 4th Alinea.

paragraph to define the concept of activities directed towards one or more MemberStates, and takes as one of its assessment criteria for the existence of such an activityany attempt by an operator to confine its business to transactions with consumersdomiciled in certain Member States. The Commission cannot accept this amendment,which runs counter to the philosophy of the provision. The definition is based on theessentially American concept of business activity as a general connecting factordetermining jurisdiction, whereas that concept is quite foreign to the approach takenby the Regulation. Moreover the existence of a consumer dispute requiring courtaction presupposes a consumer contract. Yet the very existence of such a contractwould seem to be a clear indication that the supplier of the goods or services hasdirected his activities towards the state where the consumer is domiciled. Lastly, thisdefinition is not desirable as it would generate fresh fragmentation of the marketwithin the European Community.’64 In a joint EU Council and Commissionstatement on Articles 15 and 73 of the Regulation, the Commission’s pointof view is supported by the Council: ‘[. . .] the language or currency which awebsite uses does not constitute a relevant factor.’65

One notices that the Commission points out that the proposedamendments are in keeping with the American concept of business activity(minimum contacts, purposeful availment, etc.) as a general ground fordetermining whether or not assertion of jurisdiction is legitimated, andthat this ground runs counter to the general ground set forth in theRegulation (i.e. the domicile of both the consumer and the trader).

Attention has to be paid to the Commission’s second argument forrejecting the proposed amendments, i.e. that the existence of a consumercontract seems to be a clear indication that the trader has directed hisactivities to the state in which the consumer is domiciled. In theiraforementioned joint statement on Articles 15 and 73 of the Regulation,the Council and the Commission have stressed this again: ‘The Council andthe Commission point out in this connection that for Article 15(1)(c) to be applicableit is not sufficient for an undertaking to target its activities at the Member State of theconsumer’s residence, or at a number of Member States including that Member State;a contract must also be concluded within the framework of its activities. In thiscontext, the Council and the Commission stress that the mere fact that an Internet siteis accessible is not sufficient for Article 15 to be applicable, although a factor will bethat this Internet site solicits the conclusion of distance contracts and that a contracthas actually been concluded at a distance, by whatever means. [. . .]’66 Thisargument is most strange. One author has pointed out that, if theconsumer contract is itself a clear indication to examine whether or not



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67 M. Schaub, ‘On-line consument nu nog beter beschermd!’ (2001) Tijdschrift voor Consumentenrecht (91)100.

68 See e.g. H. Boularbah, ‘La résolution des litiges transfrontalières avec l’e-investisseur: questionschoisies’ in M. Tison (ed.), La protection de l’investisseur et de l’e-investisseur. Cahiers AEDBF Belgium (Bruylant :Brussels 2002) 335–339 ; A. Nuyts, ‘La communautarisation de la Convention de Bruxelles. Le règlement44/2001 sur la compétence judiciaire et l’effet des décisions en matière civile et commerciale’ (2001)Journal des tribunaux (913) 918.

commercial or professional activities are directed to a certain state, thiscondition is in fact unnecessary. Indeed, if ‘directing to’ is a necessarycondition for the existence of a consumer contract in the sense of Art. 15 ofthe Regulation, then the existence of a consumer contract cannot be itselfan indication that the ‘directing to’ condition is fulfilled; this is clearly acircular reasoning. This author consequently correctly argues that thiscannot be intended, taking into account the existence and phrasing of thecondition.67

Personally, we adhere to the opinion that the Commission’s point of viewshould not be supported.68 First, such interpretation would after allconfuse the meaning of the term ‘directing to’ with that of the term‘accessible in’; it is in the nature of the term ‘directing to’ that the personwho ‘directs to something’ ‘concentrates on or specializes in’ that thing,whereas the term ‘accessibility’ does not include any notion of intendedconnection with something. Second, interpreting the term ‘directing to’ inthe sense of the purposefully availment condition in US case law would bethe ideal opportunity to streamline the regimes in the US and the EU. Inour opinion, the Commission’s argument that the American concept of‘business activity’ as a general ground for determining whether or notassertion of jurisdiction is legitimated, runs counter to the general groundset forth in the Regulation, i.e. the concept of ‘domicile’, cannot besupported; in the Regulation, the general ground is indeed the concept of‘domicile’ (both the consumer and the other party must be domiciled in aEU Member State), but this does not inherently prevent using the conceptof ‘business activity concentrated on’ as an additional ground for determin-ing jurisdiction (besides the fact that both the consumer and the other partymust be domiciled in a EU Member State, that other party must moreoverconcentrate his (e)business on the EU Member State in which theconsumer is domiciled).

The foregoing has shown that the second ‘guideline’ for interpreting theterm ‘directing to’ rather gives rise to controversies than elucidating thisterm. One now has to await an opportunity for the European Court ofJustice to decide which interpretation has to be followed. However, since itis supported by the Council, it seems at first sight that the Commission’spoint of view should be adhered to.

As regards the analysis of the example case, this condition and theCommission’s and Council’s interpretation thereof lead to the following.Since both the website of the Swedish seller and that of the French seller


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69 Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement ofjudgments in civil and commercial matters, COM(1999) 348 final, EC Official Journal 28 December 1999, C376 E/1.

have an interactive nature and indications concerning deliberately targeting doseemingly not have to be taken into account, the boy can rely on the specialprotection regime not only for the purchase on the website of the Frenchseller but also – contrary to the analysis under the Convention’s regime –for the purchase on the website of the Swedish seller.

4.2.3 The omission of the condition that the consumer must have taken thesteps necessary for the conclusion of the contract in the state in which he is himselfdomiciled

When reading Art. 15.1.c of the Regulation, one immediately notices thatfor the special protection regime to apply, it is no longer required that theconsumer has taken the steps necessary for the conclusion of the contractin the state in which he is himself domiciled. The only thing that is requiredis that the contract falls within the scope of the commercial or professionalactivities of the other party. Consequently, the special protection regimecan also apply when the steps necessary for the conclusion of the contracthave been taken in a state (anywhere in the world) other than that in whichthe consumer is domiciled. The omission of the condition set forth in Art.13 of the Convention shows a sense of reality and overcomes the flaw in theConvention that a consumer cannot rely on the special protection regimeif the other party has urged the consumer to leave the state in which he isdomiciled for the purpose of entering into the contract.69

As regards the analysis of the example case, this omission implies that notonly the contract entered into at home in Belgium (the book) but also thatentered into on holiday in Australia (the computer game) falls within thescope of the special protection regime.

4.2.4 Opinions of business and consumers

The new general rule as regards international E-Consumer contractsjurisdiction in the EU, as interpreted by the European Commission, is thusthat a consumer, irrespective of his nationality, who is domiciled in a EUMember State and who uses, anywhere in the world, an interactive websitewhich is (also) accessible in the Member State in which the consumer isdomiciled and the holder of which is domiciled in a Member State, canbring proceedings against the website holder in the Member State in whichhe is himself domiciled.

It is clear that the new regime, as interpreted by the EuropeanCommission, has ‘put the cat among the pigeons’ in business circles, since,henceforth, enterprises that are domiciled in a EU Member State can besued in any EU Member State where their website is accessible, irrespective



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70 M. Foss and L.A. Bygrave, loc. cit. 134; R.L. Hoegle and C.P. Boam, loc. cit. 48–49; J. Kropholler,Europäisches Zivilprozeßrecht. Kommentar zu EuGVO und Lugano-Übereinkommen (Heidelberg: Verlag Rechtund Wirtschaft GmbH 2002) p. 226, nr. 24; M.D. Powell and P.M. Turner-Kerr, loc. cit. 23; P. Stone, loc. cit.5–6; S. van der Hof, ‘De internationale on-line consumentenovereenkomst’ (2000) http://www.nvvir.nl/doc/H5.pdf, 9; M.M.M. van Eechoud, ‘EG-verordening inzake rechtsmacht in burgerlijke zaken’ (2000)Computerrecht (113) 114.

71 F. Sweerts, loc. cit. 263.72 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal

aspects of information society services, in particular electronic commerce, in the Internal Market(‘Directive on electronic commece’), EC Official Journal 17 July 2000, L 178/1; M. Foss and L. Bygrave, loc.cit. 135; P. Stone, loc. cit. 6.

73 M.D. Powell and P.M. Turner-Kerr, loc. cit. 26.

of whether or not they ‘focussed’ their on-line business on that MemberState. A first reaction of the business community is that this regime willresult in legal uncertainty and a lot of costs for enterprises, which willconstitute an important barrier to the development of e-commerce(especially the e-commerce activities of small enterprises), result in higherprices for consumers and lead to enterprises refusing to enter intoe-contracts with consumers from certain Member States, since websiteholders will be obliged to organise their website in such a way thatconsumers are asked via a technical functionality to indicate the MemberState in which they are domiciled, and to make it clear to consumers thatthey do not wish to enter into a contract with consumers who are domiciledin certain Member States.70 A second argument put forward by business isthat it is impossible for them to take account of and to engage legally skilledpersonnel who have knowledge of all different legal systems of all EUMember States, to draft different model contracts, etc.71 A third remarkfrom business is that the country of destination principle set forth in theRegulation runs counter to the country of origin principle set forth in theEU E-Commerce Directive of 8 June 2000.72 Finally, a fourth commentfrom business is that a consumer does know that a website holder is notnecessarily domiciled in the EU Member State in which he is himselfdomiciled, and thus that a consumer can reasonably expect to have tobring the website holder before a foreign court in case of a dispute if thewebsite holder is domiciled in another Member State.73

A first reaction of consumers, on the other hand, is that lawsuits, both inthe consumer’s own Member State and abroad, are always very expensivefor the consumer, and having to bring proceedings abroad is made all themore onerous by the consumer’s unfamiliarity with the law, language andlegal system. In their opinion, such discouraging factors may not result in ade facto denial of the fundamental right of access to justice; enterprises, onthe other hand, as repeat players, do dispose of the necessary knowledge oflanguages and legal know-how to deal with proceedings abroad. Moreover,consumers are of the opinion that being sued abroad is included in the riskmanagement of enterprises and that enterprises that wish to avoid beingsued in certain Member States have to perform rechtsgeschäftlicher Selbst-


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74 S. Dutson, ‘Transnational E-commerce’ (2000) Computer Law & Security Report (105) 107; M. Foss andL. Bygrave, loc. cit. 135; R.L. Hoegle and C.P. Boam, loc. cit. 49–50; P. Mankowski, loc. cit. 24–25; S. van derHof, ‘De internationale on-line consumentenovereenkomst’ (2000) http://www.nvvir.nl/doc/H5.pdf, 9.Some authors are of the opinion that refusing to contract with consumers from certain Member States canonly be realised by mentioning this explicitly on the website: I. Couwenberg and M. Pertegás Sender,‘Recente ontwikkelingen in het Europees bevoegdheids-en executierecht’ in H. van Houtte and M.Pertegás Sender (eds.), Het nieuwe Europese IPR: van verdrag naar verordening (Intersentia: Antwerp 2001)(31) 42. Others doubt whether such a disclaimer is sufficient, since it can be formulated in a language that isnot understood by certain consumer. They propose to oblige the consumer to type in his geographicaladdress, so that the order can automatically be refused when that address is situated in a Member State onthe ‘black list’. If a consumer has typed in a false address and has thus misled the seller, then he will not beentitled to rely on the special protection regime: M. Lubitz, loc. cit. 41; P. Stone, loc. cit. 9.

75 M. Foss and L.A. Bygrave, loc. cit. 135; M.D. Powell and P.M. Turner-Kerr, loc. cit. 23; S. van der Hof, ‘Deinternationale on-line consumentenovereenkomst’ (2000) http://www.nvvir.nl/doc/H5.pdf, 9.

76 M. Foss and L.A. Bygrave, loc. cit. 135; S. Dutson, ‘International E-commerce’ (2000) Computer andTelecommuncations Law Review (76) 77–78; S. Dutson, ‘Transnational E-commerce’ (2000) Computer Law &Security Report (105) 106; P. Stone, loc. cit. 12; T. Verbiest and É. Wéry, op. cit. nr. 981. For more informationabout this topic, see J.J. van Haersolte-van Hof, ‘Richtlijn elektronische handel – internationaalprivaatrechtelijke aspecten’ (2000) Nederlands Tijdschrift voor Europees Recht 325–327.

77 M. Foss and L.A. Bygrave, loc. cit. 135.78 See http://www.hcch.net/e/workprog/jdgm.html and http://www.hcch.net/e/workprog/

e-comm.html.

schutz, for instance by organising their website in such a way that it isimpossible to enter into a contract with consumers from a certain MemberState.74 A second argument of consumers is that for e-commerce to becomea full-grown way of trading, consumers first have to have confidence in itand to be sure that they are not left to the arbitrariness of the websiteholders. In their opinion, broadening the scope of the special protectionregime is consequently of high symbolic value.75 Third, they refute theaforementioned criticism as regards the inconsistency between the countryof destination principle set forth in the Regulation and the country oforigin principle set forth in the EU E-Commerce Directive by pointing outthat this Directive does not deal with international jurisdiction but with theapplicable law and that Recital 23 and Art. 1.4 of this Directive explicitlyprescribe that ‘this Directive does not aim at establishing rules on privateinternational law relating to conflicts of law nor does it deal with the jurisdiction ofCourts’.76 A fourth remark of consumers is that the consumers’ need to beentitled to rely on the special protection regime in the field of e-consumercontracts equals that in the field of ‘traditional’ consumer contracts.77

5. Towards a world-wide regime?From 6 until 22 June 2001, the Hague Conference on private internationallaw met in the first part of the nineteenth diplomatic session at the PeacePalace in the Hague to pursue negotiations towards a new convention onjurisdiction and foreign judgments in civil and commercial matters.78 Thebasis of these negotiations was a preliminary draft convention drawn up inOctober 1999. One of the important challenges of the Conference is to



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79 Summary of the Outcome of the Discussion in Commission II of the First Part of the DiplomaticConference 6–20 June 2001 (see the websites mentioned above). See C.A. Jekel, ‘InternationaleRechtsmacht – Haagse Conferentie voor Internationaal Privaatrecht’ (2001) Computerrecht 288–289.

draw up a convention that sufficiently overcomes the legal problems inrespect of the Internet.

The current draft convention pays a lot of attention to internationalE-Consumer contracts jurisdiction (see its Art. 7). However, at present,there are four different proposals and some variants thereof and there is noconsensus in respect of any of them either that one or more should beomitted or that any one of them should be preferred. One notices that thefirst proposal is clearly less advantageous to E-Consumers than the regimeunder the Regulation, for it prescribes that a consumer cannot bringproceedings against the other party in the state in which he is himselfdomiciled if that other party demonstrates that it took reasonable steps toavoid concluding contracts with consumers habitually resident in the statein which the consumer is domiciled.79 It is also not clear whether or not theConference will – as the European Commission – introduce the distinctionbetween active, interactive and passive websites that originates from UScase law.

One now has to await the second part of the diplomatic session.However, due to the current lack of consensus between the delegations,one can only guess at the final outcome of the Conference, if any.

6. ConclusionThis article has pointed out that the debate and case law in the US asregards international E-Consumer contracts jurisdiction has started earlierthan in Europe. The current regime under US law is that a court firstexamines whether or not the ‘Long Arm’ Statute allows to exercise personaljurisdiction over a website and further, if so, whether or not exercising thatpersonal jurisdiction falls within the limits of the due process principle setforth in the Fourteenth Amendment of the American Constitution. To thelatter end, the court examines in case of general personal jurisdictionwhether or not the website holder-defendant has had substantial orcontinuous and systematic contacts with the forum state, and in case ofspecific personal jurisdiction whether or not exercising jurisdiction isreasonable and the website holder-defendant fulfils the conditions ofminimum contacts and purposeful availment. In this context, a distinctionis made between active, interactive and passive websites, whereby the activewebsite always, interactive websites sometimes and passive websites neverfulfil the aforementioned conditions.

In the EU, international jurisdiction over E-Consumer contracts wasgoverned by Art. 13 of the Convention until 1 March 2002 (this is still the


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case in Denmark). Its first condition, i.e. that before the conclusion of thecontract, the other party has addressed a specific invitation to theconsumer or advertised in the state in which the consumer is domiciled,has lead to various point of views in legal doctrine, and its secondcondition, i.e. that the consumer has taken the steps necessary for theconclusion of the contract in the state in which he is himself domiciled, hasbeen considered as unrealistic in the Internet era.

Since 1 March 2002, in all EU Member States (except for Denmark), thismatter is governed by Art. 15 of the Regulation. The new regime gives anaffirmative answer to the question of whether digital products can beconsidered as ‘goods’. It also introduces some modifications as regards thefield of application of the special consumer protection regime set forth inthe Convention.

First, it is no longer required that the consumer has taken the stepsnecessary for the conclusion of the contract in the state in which he ishimself domiciled.

Second, the distinction between an ‘active’ and a ‘passive’ consumer hasbeen omitted, since it is no longer necessary that before the conclusion ofthe contract, the other party has addressed a specific invitation to theconsumer or advertised in the state in which the consumer is domiciled;the new requirement is that the consumer contract has been concludedwith a person who pursues commercial activities in the Member State of theconsumer’s domicile or, by any means, directs such activities to thatMember State or to several States including that Member State. However, itis not so clear how the new term ‘directing to’ has to be interpreted. TheEuropean Commission, the Council and the European Parliament agreethat this term firstly implies that a website must have an interactive nature,which means that the website must at least give the consumer theopportunity to enter into an agreement on line; consequently, theyintroduce a terminology and concept that originates from US case law. TheEuropean Parliament is of the opinion that a website must secondly also bedeliberately targeted on the EU Member State in which the consumer isdomiciled, whereby factors such as the language(s) and currency/currencies used on the website have to be taken into account for evaluatingthe degree of ‘deliberately targeting’; it consequently adheres to thepurposeful availment requirement of US case law and the ‘middle ground’point of view in European legal doctrine. The Commission, however, is ofthe opinion that, if the website has an interactive nature, its mereaccessibility in the EU Member State in which the consumer is domiciled issufficient for asserting jurisdiction over the E-Contract; consequently, itdoes not support the purposeful availment requirement of US case law andthe ‘middle ground’ point of view in European legal doctrine. It is clearthat, due to this discord, the European Court of Justice will have a decisiverole in settling this ‘dispute’. However, since the Commission is supportedby the Council, it seems that the new regime has to be interpreted in



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accordance with the Commission’s point of view. This would mean that aconsumer, irrespective of his nationality, who is domiciled in a EU MemberState and who uses, anywhere in the world, an interactive website which is(also) accessible in the Member State in which he is himself domiciled andthe holder of which is domiciled in a EU Member State, can bringproceedings against the website holder in the EU Member State in whichhe is himself domiciled.

Furthermore, one has to await the outcome of the second part of thediplomatic session of the Hague Conference for Private International Law.Taking into account the intrinsic border-crossing nature of the Internet, itis necessary to draw up a world-wide uniform international E-Consumercontracts jurisdiction regime. However, considering the current stay ofplay, it remains to be seen whether the Hague project will ever lead to asatisfactory result.

international jurisdiction over e-consumer contracts in ... jurisdiction over e-25 consumer

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