دانلود رایگان مقاله انگلیسی تصمیمات قضایی در حقوق بین الملل خصوصی - اشپرینگر 2017

Abstract

In Amazon the CJEU decided which conflict rules applied to a claim in collective proceedings that was initiated by a consumer organization to prohibit allegedly unfair terms contained in the general terms and conditions of a seller. The terms were used in electronic b2c contracts, where the seller targeted consumers in their home country. The CJEU distinguished between the conflict rule concerning collective action, Article 6(1) Rome II, and the conflict rule concerning the fairness of the term, Article 6(2) Rome I. In addition, the CJEU introduced a new test to assess the fairness of a choice-of-law term under Directive 93/13 on unfair contract terms. In the note, it is argued that the CJEU’s distinction between those two conflict rules is unnecessary and that the test that the CJEU formulated to assess whether a choice-of-law term is unfair, is less favourable to the consumer than the tests formulated in prior decisions.

4.5 Conclusion

(20) Amazon provides a rule for the situation when a trader established in an EU Member State targets consumers in their country of habitual residence which is also an EU Member State and a consumer organization which is established in that Member State starts a collective action against the trader. In other words, these proceedings only concerned the situation of the passive consumer in a b2c contract.

(21) The CJEU distinguished between the conflict rule that governed the collective action, Article 6(1) Rome II, and the conflict rule that governed the fairness of the term, Article 6(2) Rome I.

It is not clear why the CJEU did this, since in this case both provisions will submit the case to the same legal system. The CJEU held that the country where the collective interests of the consumers are affected under Article 6(1) Rome II is the country where the consumers, who are targeted by the trader, have their habitual residence. This is also the connecting factor which Article 6(2) Rome I employs. Consequently, if merely Article 6(1) Rome II had been applied to this case, the same legal system would have applied as to the fairness of an unfair term in a collective action as in an individual situation, because both result in the same applicable legal system. It would have been preferable if the CJEU had only applied Article 6(1) Rome II or Article 6(2) Rome I, since applying both provisions renders the situation unnecessarily complicated.