Following the requests of the members of our association, in this legal bulletin we return to the issues which we have addressed previously. Specifically, we shall deal with the question of what law (the law of which state) applies in situations where goods are sold by a Czech trader to those consumers who have their habitual residence in another Member State of the European Union. For example, therefore, if a Czech trader sells goods to Slovak consumers. This case must be strictly distinguished from those situations where the buyer is not a consumer at all, or from situations where the purchasing consumer has his habitual residence outside the EU. We shall not address these in detail in this legal bulletin.

The legal regulation in this area is contained in the provision of Article 6(1) and (2) of the Rome I Regulation. According to these provisions, it is a fundamental rule that the contracting parties may agree on the law which is to govern their contractual relationship (the so-called applicable law). This means that, for example, a Czech trader includes in his terms and conditions an agreement that the legal relationship arising from the contract of sale is governed by Czech law, whereby these conditions subsequently become part of the contract of sale with the consumer. If such a trader does not ‘direct his activities’ to states other than the Czech Republic (see below), such a provision should suffice.

However, if the trader also ‘directs his activities’ to the territory of the state where the consumer has his habitual residence, the mandatory provisions of the legal order of such state will also apply to this legal relationship arising from the contract of sale. This means that if a Czech trader ‘directs his activities’ to Slovakia (whilst Czech law has been agreed between the parties as the applicable law), the legal relationship between the trader and the Slovak consumer will be governed not only by Czech law but also by those provisions of Slovak consumer law which are more favourable to the consumer than the provisions of Czech law. If, in such a case, the contracting parties do not agree on the applicable law at all, Slovak law will apply exclusively (still on the assumption that the trader directs his activities to Slovakia).

From this perspective, we thus arrive at the cardinal question of what it actually means that the trader directs his activities to a particular country. We addressed this issue in legal bulletin No 4/2015, albeit in a different context, specifically in the context of when a Czech trader may be sued by a consumer abroad. The provision of Article 17(1)(c) of the Brussels I Regulation, which governs the jurisdiction of courts in consumer matters, is based on the same model, and case law of the Court of Justice of the EU is available in relation thereto, which fills the concept of ‘directing of activities’ with clearer content for practice. In our view, however, this case law should also be applicable to our case (i.e. the determination of the applicable law in consumer relationships).

Specifically, in the joined cases Peter Pammer v Reederei Karl Schlüter GmbH & Co KG (C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09), the Court of Justice of the EU held that ’the following matters, to which the list is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile: the international nature of the activity, the description of itineraries from other Member States to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. On the other hand, the mere accessibility of the trader’s or the trader’s intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an e-mail address and of other contact details, or of use of a language or currency which are the language and/or currency generally used in the Member State in which the trader is established.’

For example, if a Czech trader has an internet shop also located on a Slovak domain, enables payments in the currency Euro and has localised advertising for the territory of Slovakia, it may, in our view, be concluded therefrom that he directs his activities to Slovakia (in the above-mentioned sense). In such a case, he must reckon with the fact that Slovak law will apply to his relationships with consumers, either exclusively (if he does not make an agreement with the consumer on a different applicable law) or partially, only in areas which are governed by Slovak mandatory norms. For these reasons, therefore, it is advisable for such a trader to consult the content of his legal documentation and his procedures also with a Slovak lawyer.

In conclusion, we recall that according to the judgment of the Court of Justice of the EU in the case Verein für Konsumenteninformation v Amazon EU Sàrl (C-191/15), which we have addressed previously, the trader must, in such cases, inform the consumer that the provisions of the legal order of the consumer’s home state also apply to their relationship.

Josef Aujezdský, Advocate

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal bulletin No 11/2019 intended for the members of this association.

This text was translated from Czech to English using an AI translator.