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The E-commerce Directive and Private International Law
Michael Hellner
The Hague, 26-27 October
TEST
The E-Commerce Directive
Art. 3 – Internal Market
1. Each Member State shall ensure that the information society services provided by a service
provider established on its territory comply with the national provisions applicable in the
Member State in question which fall within the coordinated field.
2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to
provide information society services from another Member State.
[…]
TEST
A Conflict with Conflict of Laws?
Art. 1 – Objective and Scope
[…]
4. This Directive does not establish additional
rules on private international law nor does
it deal with the jurisdiction of Courts.
TEST
The Coordinated Field
Art. 2(h) ”coordinated field”
• requirements with which the service provider
has to comply in respect of
– the taking up of the activity of an
information society service,
– the pursuit of the activity of an
information society service.
TEST
Only Public Law?
• Legislative Intent
• Exceptions in annex – e contrario private law is included
• Taking up of an Information Society Service
– qualifications
– authorisation
– notification
• Pursuit of an Information Society Service
– behaviour of the service provider
– requirements regarding the quality or content of the service including those applicable to
advertising and contracts
– requirements concerning the liability of the service provider
TEST
What does the COP do?
• Create a Choice of Law Rule
• Certain Limitations to the Applicable Law (The Exception of
Mutual Recognition)
• Creates Internationally Mandatory Rules (lois d’application
immédiate)
TEST
A Choice of Law Rule?
• Recital 22: ”information society services should
in principle be subject to the law of the
Member State in which the service provider is
established”
• Expectations of actors
• Other ”Internal Market Clauses”
TEST
• Give ”old” private international law rules
precedence
– Art. 20 Rome Convention
– Art. 23 Rome II Regulation
Limitations to the Application of the Designated Law
• The COP in Primary EC Law does not have
PIL character
• Logical Consequence of Article 1(4)
– literal interpretation
– structure of Directive
• If the EC wanted to create a PIL rule it would
have said so explicitly!
• Wrong legal basis
• Result: Günstigkeitsprinzip
TEST
Internationally Mandatory Rules (lois de police)
• Territorial scope of application
– ”self-limiting provisions”
– not a unilateral choice of law rule
• Internationally Mandatory
– satisfies both recital 22 and Art. 1(4)
– e contrario from annex leaving party
autonomy undisturbed
– Ingmar case
TEST
Differences in the scope of the applicable law - dépeçage
• Contract
– Art. 10 Rome I
•
•
•
•
interpretation
performance
damages
limitation
– Art. 2 E-commerce
•
•
•
•
TEST
behaviour
quality
content
liability
• Non-contractual obligations
– Art. 11 Rome II
•
•
•
•
•
•
•
existence of liability
limitation of liability
measures to terminate injury
assesment of damage
assignment
vicarious liability
Limitation
– Art. 2 E-commerce
• requirements concerning the liability
Other problems…
• Barter contracts between service providers
• Contracts both for the provision of services
and goods - cfr. Art. 2(h)(ii)
• Derogations in annex
– Copyright
– Freedom of choice
– Consumer contracts
– Formal validity of real estate contracts
TEST
”forgive them; for they know
not what they do”
Luke 23:34
TEST
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