Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter C.29: Consumer contracts

Michael Wilderspin

p. 464The principle of →party autonomy is subject to restrictions in many legal systems, Union law instruments and international conventions. In particular, it is subject to exceptions designed to protect the weaker party to a transaction. The European Union has extended such protection into the field of private international law by enabling a consumer to sue businesses in the Member State where the consumer is domiciled and under the law of his habitual residence.

I. Rationale for consumer protection in private international law

Member States of the European Union have, to varying degrees, accorded protection to consumers in their domestic law since the 1960s. Consumers are protected by various techniques, which include outlawing certain standard terms, in particular exemption clauses, requiring a contractor to provide the consumer with information and granting the consumer a period in which to withdraw from the contract without penalty. In order to prevent the disparities between such national laws becoming an impediment to the Internal Market, the EU has enacted a number of Directives harmonizing national laws. Typically, in order to prevent parties evading their provisions, such Directives have required the Member States not to permit those provisions to be derogated from by contrary contractual stipulations (ie they confer the status of non-derogable rules). Furthermore, until recently, they have tended to follow the technique of requiring only minimum harmonization, leaving it open to Member States to grant more extensive protection to consumers. Thus, while such Directives may have benefited consumers, they have not solved the problem of disparities of national legislation. Partly for this reason, the Consumer Rights Directive (Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, [2011] OJ 304/64) has adopted the approach of complete harmonization. Nevertheless, a number of Directives of the traditional type are still in force.

In an internal market, it may be of little use protecting a consumer at national level if a foreign seller can, by inserting a foreign jurisdiction or →choice-of-law clause, escape the application of the protective provisions of the consumer’s law. Consequently, the EU has limited party autonomy at the level of private international law rules by extending the reach of such provisions. In particular, it allows the consumer to sue or be sued ‘at home’ where litigation is cheaper for him and provides for the application of the ‘consumer’s law’, with which he is deemed to be most familiar. At the same time, it has sought to restrict the application of the protective private international law rules that it has enacted by providing that they apply only where the seller has sought out the consumer, either directly or indirectly, by targeting consumers in their state of habitual residence (see below, section II.).

II. Jurisdiction

1. Regulation 44/2001 (the Brussels I Regulation)

Section 4 of ch II of the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1; →Brussels I (Convention and Regulation)), entitled ‘Jurisdiction over consumer contracts’ comprises arts 15 to 17 of the Regulation. Article 15 reads:

1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:

(a) it is a contract for the sale of goods in instalment credit terms; or

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.

2. . . .

3. This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

p. 465When a contract falls within the scope of art 15, the consumer has the option of suing the other party before the courts of either the consumer’s domicile or that of the other party. The possibilities for the parties to depart from this regime are severely circumscribed.

2. Personal scope

a) The consumer

While art 15 does not explicitly state that only a natural person can be a consumer, this condition is nevertheless implicit. In Benincasa v Dentalkit (Case C-269/95 Francesco Benincasa v Dentalkit Srl [1997] ECR I-3767), the European Court held that the term ‘consumer’ covers ‘only a private final consumer . . . consequently, only contracts concluded for the purposes of satisfying an individual’s own needs in terms of private consumption come under the provision . . .’. Thus, when an individual acting outside his normal trade or profession concludes a contract to enable him to make a profit, it may be difficult to determine whether the contract satisfies his own needs in terms of private consumption. In Standard Bank of London v Apostolakis (Standard Bank London Ltd v Apostolakis & Anor [2001] EWHC 493 (Comm)), the High Court held that the contract by which a well-off Greek couple invested their money in foreign currency via a contract with an English bank was a consumer contract and so a jurisdiction agreement that allocated jurisdiction to English courts could not be invoked. This conclusion is corroborated by Recital (26) of the preamble to the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) which states that ‘. . . financial services such as investment services . . . provided by a professional to a consumer, . . . should be subject to the provision on the law applicable to consumer contracts’. Problems of demarcation also arise when a purchaser acts partly for a business purpose and partly for a private purpose. Gruber (Case C-464/01 Johann Gruber v Bay Wa AG [2005] ECR I-439, a case in which a farmer purchased roof tiles, some of which were to be used for his dwelling and some for his farm), suggests that such a contract is not a consumer contract unless the business purpose plays a negligible role: the fact that the private purpose is merely predominant will not suffice.

b) The other party

Article 15 does not state explicitly that the other party must be a professional. However, several factors suggest that this must be the case. First, the purpose of the regime is to protect the weaker party, which would militate against extending the regime to situations in which the other party is on an equal footing. Second, points (a) and (b) of art 15(1) apply to sales of goods on credit terms and loans to provide for the purchase of such items (which, in practice, are likely to be granted by professionals). More explicitly, point (c) applies only when the other party pursues ‘commercial or professional activities’ in the Member State of the consumer’s domicile (or directs such activities to that country).

It is not explicitly stated whether, in order for a contract to come within the scope of art 15, the professional must know or must reasonably be aware that the other party is acting for a private purpose. Nevertheless, since a professional contracting with a natural person should be put on notice that he may be dealing with a consumer, even if it has not specifically been brought to the professional’s attention that such a person is acting as a consumer, art 15 will apply unless the consumer has done something positive to create the impression that he is acting as a professional.

3. The requirement that there be a contract

Article 15 of the Brussels I Regulation applies ‘in matters relating to a contract concluded by a person, the consumer’, in contrast to art 5(1) of that Regulation, which applies simply ‘in matters relating to a contract’. This difference in wording led to a distinction being drawn between the art 5(1) regime and the art 15 regime in a series of cases which arose in the context of bogus prize notifications, in which one party had in reality no intention of making a promise to award a prize but gave the opposite impression. In each case a German company had sent prize notifications to a person habitually resident in Austria, stating that he or she had won a cash prize. When the defendants refused to honour the notification, each claimant brought proceedings in Austria for an order requiring the defendant to make the payment. In Engler v p. 466Janus Versand (Case C-27/02 Petra Engler v Janus Versand GmbH [2005] ECR I-481), the Court held that the matter was contractual in nature since it was freely consented to by the defendant; the ‘prize notification’ was sent on the initiative of the defendant and it could reasonably lead the addressee to believe that a prize would be awarded to him if he returned the ‘payment notice’. Thus the relationship was contractual. However, art 13 of the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1; the predecessor to art 15 of the Brussels I Regulation) did not apply since, in relation to the defendant’s promise to deliver a cash prize, the claimant had not assumed any obligation towards the defendant. In summary, although the action was contractual, it did not fall within the scope of art 13 since that provision covered only a limited category of contracts (ie contracts for the supply of goods or services) and thus did not embrace any type of unilateral contract or a promise to award a prize.

In Ilsinger (Case C-180/06 Renate Ilsinger v Martin Dreschers [2009] ECR I-3961), the Court held that, since the material scope of art 15 of the Brussels I Regulation that provision was wider than that of art 13 of the Brussels Convention, it was not limited to situations in which the parties have assumed reciprocal obligations and could thus apply also to unilateral contracts. However, the Court went on to say that the condition that a contract must have been concluded still pertained. It held that, in the context of prize notifications, the mail order company must have clearly expressed its intention to be bound if its offer is accepted by the other party. In other words, there must merely be (apparent) consensus ad idem between the parties before the consumer can invoke art 15 of the Brussels I Regulation.

4. The material scope of art 15 of the Brussels I Regulation

Article 15 is capable, with one exception, of applying to all contracts. Contracts falling within the scope of points (a) or (b) are automatically covered, irrespective of the circumstances in which the contract has been concluded, but other contracts must be concluded in one of the circumstances set out in point (c), below.

The one type of contract that is excluded in limine from the scope of art 15 is a contract of transport, subject to an exception for contracts which, for an exclusive price, provide for a combination of transport and accommodation. In Pammer (Joined cases C-585/08 and C-144/09 Peter Pammer v Reederei Karl Schlüter GmbH & Co KG (C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09) [2010] ECR I-12527), this exception was interpreted as coterminous with the exception in art 6 of the Rome I Regulation, which refers directly to the Package Travel Directive (Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, [1990] OJ L 158/59). Thus, a voyage of more than 24 hours on board a freighter, with accommodation provided, fell within the exception, and thus within the scope of art 15.

5. The circumstances in which art 15(1)(c) applies

The first possibility, namely that the professional carries out his activity in the country in which the consumer is domiciled, is unlikely to cause problems of interpretation.

The second possibility, ie that the professional directs his commercial or professional activities towards the country of the consumer’s habitual residence, is intended to cover more distance contracts than its predecessor, including contracts that are concluded via the Internet.

At the moment of adoption of the Brussels I Regulation, the Commission and Council adopted a Joint Statement on art 15. Although it was not formally published at that time, Recital (24) of the preamble to the Rome I Regulation incorporates parts of it thus:

. . . for Article 15(1)(c) to be applicable it is not sufficient for an undertaking to target its activities at the Member State of the consumer’s residence, or at a number of Member States including that Member State, a contract must be concluded within the framework of its activities. This provision relates to a number of marketing methods, including contracts concluded at a distance through the Internet.

In this context, . . . the mere fact that an Internet site is accessible is not sufficient for Article 15 to be applicable, although a factor will be that this Internet site solicits the conclusion of distance contracts, and that a contract has actually been concluded at a distance, by whatever means. In this respect, the language or currency which a website uses does not constitute a relevant factor.

p. 467The first paragraph of the Joint Statement merely restates or paraphrases the terms of parts of art 15 of the Regulation, and adds the fairly evident explanation that the article applies to contracts concluded through the Internet. The second paragraph deals more specifically with the Internet. It expressly states the mere fact that a company’s website is accessible is not sufficient for art 15 to apply. Again, the point seems obvious. Mere accessibility as a criterion would rob the directed activities criterion of any real meaning.

The Joint Statement then goes on to read in two further conditions for the application of art 15, first, that ‘. . . a factor will be that the Internet site solicits the conclusion of distance contracts’ and, second, that a contract has been concluded at a distance. Neither condition is explicit in the wording of art 15.

The expression ‘although a factor will be’ might imply that the fact that the site solicits the conclusion of distance contracts is merely a relevant factor rather than a sine qua non in determining whether an activity is directed towards a particular country. However, in the French and German texts the language is more prescriptive and implies the opposite: in French it reads ‘le simple fait qu’un site internet soit accessible ne suffit pas pour rendre applicable l’article 15, encore faut-il que . . .’ and in German the same translation error is repeated, namely ‘dass die Zugänglichkeit einer Website allein nicht ausreicht, um die Anwendbarkeit von Artikel 15 zu begründen; vielmehr ist erforderlich . . .’.

The Joint Statement does not identify any factors that may be relevant in determining whether the professional has directed its activities towards the consumer’s country of habitual residence and, unhelpfully, discounts the language and currency used by the website. In reality, these factors cannot simply be ignored but their relevance in a given case will depend on the context. Thus, if a German website is available in English, this would suggest that the website has an international vocation, but the same conclusion could not be drawn in the case of an English website in English. However, if an English website is available in German and quotes prices in Euros these are factors that would indicate that Germany and other German-speaking countries are being targeted.

The European Court gave useful guidance on the interpretation of the ‘directed activities’ criterion in Pammer and Hotel Alpenhof. It held, first, that for an activity to be directed towards a particular Member State, the mere accessibility of the website does not suffice; there must, instead, be evidence, before the contract was concluded, that the trader was envisaging doing business with consumers from other Member States, including that of the consumer’s domicile (→Domicile, habitual residence and establishment). Second, the Court held that evidence of such an intention on the part of the seller was not restricted to obvious intention, such as mentioning a country by name, but included other expressions of intention, such as the nature of the activity, international telephone codes, neutral top level domain names, indications of routes from another Member State and testimonials from other Member States. Third, as regards the use of languages and currencies, the Court accepted that the language or currency used on the website could be a relevant factor but only when the language or currency concerned is different from that generally used in the trader’s country.

Article 15(1)(c) Brussels I Regulation requires either that the activity be directed to the consumer’s country or ‘to several countries, including that country’ but in Pammer and Hotel Alpenhof the Court blurred the distinction between directing an activity outside the trader’s country and directing it towards a particular (other) country or countries. Hence, once it has been established that the activity is directed abroad, ie outside the seller’s country, it is not entirely clear with what degree of precision it must target the consumer’s country in order to fall within the scope of art 15(1)(c). However, it seems to be implicit in the judgment that the degree of precision need not be very great. The criteria that the Court listed as evidence of directing an activity towards another Member State are, with the exception of the example of itineraries, not country specific. Thus, once the activity is shown to be directed towards a country other than the seller’s country, the onus should be on the latter to show that he has excluded countries with whose consumers he does not wish to trade. In the absence of an express indication to this effect, implicit indications, such as the languages of the website and the currency (→Money and currency) used, can be considered.

The contract in question must fall ‘within the scope of those activities’. This must mean that the contract must fall not merely within the general trade of the professional but also within the scope of the directed activities. Thus, if a German firm sells both bicycles and cars, but p. 468advertises only cars in the French version of its website, the purchase by a French consumer of a bicycle would not fall within the scope of the directed activity.

Provided that the directed activity criterion is satisfied, art 15 will apply even if the consumer has gone to the seller’s premises and concluded the contract there. This point was confirmed by the European Court in Mühlleitner (Case C-190/11 Daniela Mühlleitner v Ahmad Yusufi and Wadat Yusufi (6 September 2012)) despite the wording of the Joint Statement, which suggested the contrary.

Article 15 does not state specifically whether the consumer must have been induced by the directed activity to conclude a contract but in Emrek (Case C-218/12 Lokman Emrek v Vlado Sabranovic [2013] OJ C 367/14), the European Court held that no such causal link was required by the wording of art 15(1)(c) and that to read in such a requirement would be contrary to the aim of protecting consumers inter alia because it would be hard to prove in cases where the contract had not been concluded at a distance.

6. The operation of the rules on jurisdiction in arts 16 and 17 of the Brussels I Regulation

Where a contract falls within the scope of art 15, art 16 gives the consumer, where he is plaintiff, the choice of suing the professional in the courts of either the Member State where the professional is domiciled or the place where the consumer is domiciled. By contrast, when the consumer is defendant, he can be sued only in the Member State where he is domiciled.

The possibilities of departing from this regime by agreement are severely circumscribed. Article 17 allows this possibility only if (i) the agreement is entered into after the dispute has arisen, (ii) it allows the consumer a wider choice of courts in which to sue or (iii) confers jurisdiction on the courts of the Member State in which the parties share a joint domicile or habitual residence.

III. Choice of law: art 6 of the Rome I Regulation

There are obvious similarities between the language of art 6 of the Rome I Regulation and that of art 15 of the Brussels I Regulation. Their respective purposes are also similar. Given the strong links between these two provisions, the interpretation of a given term of art 15(1) of the Brussels I Regulation should provide reliable guidance as to the interpretation of the identical term in art 6(1) of the Rome I Regulation.

1. Personal scope

Article 6(1) of the Rome I Regulation applies to:

a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (‘the consumer’) with another person acting in the exercise of his trade or profession (‘the professional’) . . .

The definition of a consumer corresponds broadly to that contained in art 15(1) Brussels I Regulation but is more explicit in that it specifies that only a ‘natural person’ may be a consumer.

2. The material scope of art 6

Article 6 of the Rome I Regulation applies to all types of contract concluded between a consumer and a professional, except those excluded by art 6(4). This resolves the problems that courts in Member States had in ascertaining whether contracts for financial trading transactions, contracts for loans and contracts for timeshare interests in real estate were relevant ‘contracts for the supply of services’ within the meaning of art 5 of the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34). However, even under the Regulation, the notion of ‘services’ retains residual significant since certain types of contracts for services are excluded from the scope of art 6. Types of contract which have been held to come within the scope of art 5 of the Rome Convention, and which would undoubtedly be covered by art 6 of the Regulation, include a contract for marriage brokering services, a contract for the loan of money (→Money and currency) which was to be used to fund building works in the consumer’s home state, and a contract for the rental of a car which was to be driven in a third country.

Article 6 does not apply to the following types of contract (cf art 6(4)):
  1. a contract for the supply of services where the services are to be supplied exclusively in a country other than that in which the consumer has his habitual residence;

  2. a contract of carriage with the exception of package travel within the meaning of the Package Travel Directive;

  3. p. 469a contract relating to a right in rem in immovable property or a tenancy of immovable property with the exception of timeshare contracts;

  4. rights and obligations which constitute a financial instrument, rights and obligations which constitute the terms and conditions of an issuance/offer to the public/public take-over bid of transferable securities, and subscription/redemption of units in collective investment undertakings: in so far as each of these does not constitute provision of a financial service;

  5. a contract concluded within the scope of Article 4(1)(h) namely a contract concluded within a multi-layered system of financial brokers who buy and sell for multiple third parties, interests in financial instruments.

The exclusion of contracts for services to be supplied entirely outside the consumer’s country (an obvious example of which is the provision of hotel accommodation) was defended in the Giuliano-Lagarde Report (Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I, [1980] OJ C 282/1) on the ground that in such cases the consumer cannot reasonably expect the protection of his own law. This is true where the service is easily defined and of its nature provided outside the consumer’s country (such as the provision of a hotel room). However, where the service is of a more mobile nature and capable of being performed in the consumer’s country, art 6(4)(a) is capable of excluding contracts that merit protection.

As regards point (b), the Giuliano-Lagarde Report explained the exclusion of contracts of carriage simply by the statement that ‘the special protective measures for which provision is made in art [6]‌ are not appropriate for governing contracts of this type’.

Point (b) contains an exception to the exclusion, namely ‘contracts relating to package travel’. Unlike the cognate provision in art 15(3) of the Brussels I Regulation, the scope of the exception is explicitly defined by reference to Directive 90/314/EEC on package travel, package holidays and package tours. That Directive does not contain a definition of a ‘contract relating to package travel’ as such but merely defines a ‘package’ as consisting of a combination, which involves overnight accommodation or which lasts at least 24 hours, of at least two of the following, namely transport, accommodation and other services. On the basis of this definition, a contract offering a consumer who is habitually resident in Germany a combination of a Spanish language course in Argentina and hotel accommodation there for the duration of the course would fall within the definition of a ‘package’. It is thus possible for a package to fall within the scope of the Package Travel Directive even if it contains no transport component. It would thus appear, somewhat oddly, that all ‘packages’ fall within the material scope of art 6 even if they do not contain a transport component.

A further category of excluded contracts is contracts relating to rights in rem in →immovable property or tenancies of immovable property (art 6(4)(c)) (→Lease contracts and tenancies). Recital (26) of the preamble to the Rome I Regulation refers to this exception but offers no explanation as to why such contracts are excluded, but it is no doubt because contracts related to immovable property are traditionally subject to the lex situs.

The expression ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ is also to be found in art 4(1)(d) of the Regulation. That expression is used in order to align that point with art 22(1) of the Brussels I Regulation, which grants exclusive jurisdiction to the courts of the situs ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property’. As a derogation to the normal principle of actor sequitur forum rei, the European Court has interpreted that provision very narrowly. For example, it does not apply to a contract for the sale of real property. However, caution has to be used in applying such precedents to art 6(4)(c) since, in particular, art 22(1) of the Brussels I Regulation relates to rights in rem, but art 6(4)(c) of the Rome I Regulation relates to ‘a contract relating to a right in rem’. This expression is broader than its counterpart in the Brussels I Regulation: since the whole purpose of a contract for the sale of land is to commit the vendor to transfer a right in rem, it is submitted that the contract ‘relates’ to such a right and thus falls within the exception. This consideration should prevail over the desire to achieve congruency between the Rome I and the Brussels I Regulation. On the other hand, a loan of money made to a consumer by a bank to allow the borrower to finance the acquisition of immovable property should not be treated as ‘relating to a right in rem’ even if the loan is secured by a mortgage on the property: the p. 470fact that the ultimate purpose of the loan is to permit the borrower to acquire a right in rem is irrelevant to the agreement between borrower and lender.

Timeshare contracts are the subject of a carve out from the scope of art 6(4)(c). Such contracts are less substantially connected to the property than a purchase or tenancy (→Lease contracts and tenancies), and it is thus less appropriate to subject them to the lex situs.

Article 6(4), points (d) and (e), exclude contractual terms that make up →financial instruments from the scope of art 6 because ‘there is a need to ensure uniformity in the terms and conditions of an issuance or offer’. More specifically, those provisions were inserted in order to ensure the correct functioning of financial markets which might have been jeopardized by the extension of the material scope of art 6 to embrace the sale of securities and other financial transactions.

However, financial services provided by a professional to a consumer are not excluded from the scope of art 6. This is highlighted by Recital (26), which states that financial services such as investment services should fall within the scope of that article.

3. The circumstances in which art 6 applies

Article 6 applies in the following circumstances (cf art 6(1)):

  1. where the professional pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

  2. where the professional, by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities.

If these circumstances are not fulfilled, art 6(3) stipulates that arts 3 and 4 of the Regulation determine the law applicable to the contract. The conditions laid down in art 6 are virtually identical to those in art 15(1) of the Brussels Regulation and the observations made in respect of that article apply mutatis mutandis to art 6 Rome I.

When art 6 applies, the result is that, if the parties have not chosen the applicable law, the contract will be governed by the law of the country in which the consumer has his habitual residence. Nevertheless, the parties may choose another law, but such a choice may not deprive the consumer of the protection of the provisions that cannot be derogated from by agreement of the law that would be applicable in the absence of choice. The result is that the consumer may rely upon the chosen law, or the provisions of the law of his habitual residence which cannot be derogated from by contract, whichever is the more favourable to him.

4. Provisions that cannot be derogated from by contract

‘Provisions that cannot be derogated from by contract’ means rules from which the parties cannot opt out in a domestic situation. For the purpose of art 6, provisions that cannot be derogated from by agreement are provisions which have consumer protection as their main object. The question whether a particular rule is a ‘provision that cannot be derogated from by contract’ within the meaning of art 6 must be determined by the law of the country in which the consumer is habitually resident rather than by the lex fori or the chosen law.

The formal validity of a contract to which art 6 applies, concluded in the circumstances described in para 1 of that article, is governed by the law of the country in which the consumer has his habitual residence.

IV. Consumer protection in EU legislation

A number of consumer protection Directives contain conflict-of-laws rules whose interaction with art 6 Rome I is poorly articulated. An early example of a rule inserted without any thought as to its articulation with the Rome Convention is the now repealed Doorstep Sales Directive (Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, [1985] OJ L 372/31). That Directive, which applied to contracts negotiated away from business premises, required Member States to ensure that consumers have a right of cancellation within not less than seven days. The Directive stipulated that the consumer might not waive the rights that it conferred on him. It established minimum standards only and thus left the Member States free to apply provisions more favourable to consumers.

The Directive contained no specific provisions regarding its application to contracts not governed by the lex fori but, in the Gran Canaria cases, was interpreted by German courts as meaning that national transposition p. 471measures were rules which cannot be derogated from by agreement within the meaning of the predecessor to art 6 Rome I, but not overriding mandatory rules. This meant that, where art 5 of the Rome Convention, the predecessor of art 6 of the Rome I Regulation, did not apply on the facts, it was simple for the seller to evade the application of the minimum standard of protection which the Doorstep Sales Directive aimed to ensure by the insertion in the contract of a clause selecting either the law of a Member State which had not transposed the Directive or that of a non-Member country which did not apply an equivalent provision.

The lacunae revealed by the Gran Canaria cases were tackled in two ways. First, art 3(4) of the Rome I Regulation now preserves the application of non-derogable provisions of Union law where the parties have chosen the law of a third country, and the contract has connections with more than one Member State but no connections with any third country. Second, later consumer protection Directives sought to address this type of problem by inserting explicit choice-of-law provisions. For example, art 6(2) of the Unfair Terms Directive (Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] OJ L 95/29) provides as follows:

Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.

Second, art 9 of the Timesharing Directive (Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, [1994] OJ L 280/83) (now repealed by Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts, [2009] OJ L 33/10, the Timeshare II Directive) contains a more embracing formula, namely that:

The Member States shall take the measures necessary to ensure that, whatever the law applicable may be, the purchaser is not deprived of the protection afforded by this Directive, if the immovable property is situated within the territory of a Member State.

These and other consumer protection Directives follow the technique of imposing minimum standards only, and they permit the Member States to apply provisions which are more favourable to the consumer. The result is a confusing mass of provisions, the conflict-of-laws aspects of which present considerable difficulties in the case of an international consumer contract, all the more so since there is no clear articulation between the Directives in question and the Rome I Regulation, art 23 of which stipulates that:

. . . this Regulation shall not prejudice the application of provisions of Community law which, in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations.

The clear intention of that provision is to allow the conflict-of-law rules contained in such Directives to take precedence over the rules contained in the Rome I Regulation, whenever the two sets of rules conflict.

A number of the Directives containing minimum standards and sectoral conflict rules have now been replaced by uniform rules contained in the Consumer Rights Directive (Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, [2011] OJ 304/64). Unlike the repealed Directives, it attempts to ensure a better articulation with the choice-of-law rules in the Rome I Regulation. Article 43, entitled ‘Imperative nature of the Directive’, provides that ‘if the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by the national measures transposing this Directive’. If read alone, that provision might imply that the intention of the legislature was to permit parties to evade the provisions of the Directive by selecting the law of a third country. That this is not the case is made clear by Recital (58) which states that ‘where the law applicable to the contract is that of a third country, [the Rome I Regulation] should apply in order to determine whether the p. 472consumer retains the protection granted by this Directive’.

The intention of the Union legislature is thus clear: the rules of the Consumer Rights Directive cannot be derogated from by agreement (ie they are non-derogable but are not overriding mandatory provisions within the meaning of art 9). Thus, if the parties choose the law of a third country in circumstances in which art 6 applies, the protection of the Directive will apply, as domestically mandatory rules, by virtue of art 6(1) and (2).

Literature

  • Paul Beaumont and Peter McEleavy, Anton’s Private International Law (3rd edn, Green 2011);

  • Maja Brkan, ‘Arrêt Mühlleitner: vers une protection renforcée des consommateurs dans l’UE’ [2013] R.E.C.D. 1;

  • Gralff-Peter Calliess, Rome Regulations (Wolters Kluwer 2011);500 Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012);

  • Francisco Garcimartin Alférez, ‘The Rome I Regulation: Exceptions to the Rule on Consumer Contracts and Financial Instruments’ (2009) 5 J Priv Int L 85;

  • Peter Magnus and Ulrich Mankowski, Brussels I Regulation (2nd edn, Sellier 2011);

  • Peter Mankowski, ‘Consumer Contracts under Article 6 of the Rome I Regulation’ in Andrea Bonomi and Eleanor Cashin Ritaine (eds), Le nouveau règlement européen ‘Rome I’ relatif à la loi applicable aux obligations contractuelles (Schulthess 2009);

  • Dieter Martiny and Christoph Reithmann, Internationales Vertragsrecht (7th edn, Schmidt 2010) paras 4141 ff;

  • Richard Plender and Michael Wilderspin, The European Private International Law of Obligations (4th edn, Sweet & Maxwell 2014);

  • Francesca Ragno, ‘The Law Applicable to Consumer Contracts under the Rome I Regulation’ in Franco Ferrari and Stefan Leible (eds), Rome I Regulation (Sellier 2009);

  • Giesela Rühl, ‘Consumer Protection in Choice of Law’ (2011) 44 Cornell Int’l L.J. 569.