1968 Brussels Convention and EU Council Regulation No 44/2001: Jurisdiction in Consumer Contracts Concluded Online

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00206.x
• Date: 01 January 2004
• Author: Ksenija Vasiljeva
• Published date: 01 January 2004

1968 Brussels Convention and EU Council

Regulation No 44/2001: Jurisdiction in

Consumer Contracts Concluded Online

Ksenija Vasiljeva*

Abstract: This paper addresses the issues on jurisdiction over consumer contracts con-

cluded online in the Member States of the European Union through analysis of the 1968

Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Com-

mercial Matters, which has been transformed into the Regulation recently. The changes

brought by the Regulation to the régime of jurisdiction over consumer contracts in the

European Union include the concept of the company ‘directing its activities towards par-

ticular Member State or States’ as a ground for a consumer to sue such a company in the

country of his domicile. Since the list of criteria that could define the activity as directed

to the particular Member State does not exist so far, the future effect of the Regulation

remains unclear.

I Introduction

The task of this paper is to show the development of EU law through analysis of two

pieces of legislation. The first of these is the 1968 Brussels Convention on Jurisdiction

and the Enforcement of Judgments in Civil and Commercial Matters1(‘the Brussels

Convention’or ‘the Convention’).2The second is the 2000 Council Regulation on Juris-

diction and the Recognition and Enforcement of Judgments in Civil and Commercial

matters3(‘the Brussels Regulation’ or ‘the Regulation’). The former as the name sug-

gests is a private international law instrument, while the latter is a piece of EC legisla-

tion that replaced the former for the 14 EU Member States. The provisions of the

Regulation do not apply to Denmark, which, along with Ireland and the United

Kingdom has decided not to participate in the adoption of measures taken under Title

IV of the Treaty of Amsterdam.

European Law Journal, Vol.10, No. 1, January 2004, pp. 123–142.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Riga Graduate School of Law.

1OJ C 027, (1998) at 1–27 (consolidated version).

2In legal literature the Brussels Convention is often referred as the Brussels I Convention as opposed to

the Brussels II—Convention on Jurisdiction and Recognition and Enforcement of Judgments in Matri-

monial Matters. OJ C 221 (1998), at 2–18; therefore, the Brussels Regulation is also called the Brussels I

Regulation.

3OJ L 012 (2001), at 1–23.

The topic of analysis is application of both Convention and Regulation to consumer

contracts, with the main impact on jurisdiction in contracts concluded through the

Internet.4This is a popular issue for both Community lawyers and private international

law specialists, because of the widely recognised need to provide this new form of busi-

ness with an appropriate legal framework. To increase consumers’ trust into online

transactions was also one of the concerns for the drafters of the Brussels Regulation,5

who attempted to adjust the provisions of the Convention to the demands of new forms

of transaction.

The present paper endeavours to discuss the balance between two diverging interests,

namely, consumer protection and legal certainty for companies pursuing their business

online.

II The Brussels Convention and its Application to Consumer Contracts

The Brussels Convention has been adopted as a private international law instrument

and has been ratified by all Member States. Many legal scholars characterise the Con-

vention as a real success in the process of European integration. Not only had the

national courts of Members States of the European Union been applying the Con-

vention on a regular basis; but, in addition, the European Court of Justice has deliv-

ered preliminary rulings on the interpretation on the Convention. This right was

conferred upon the Court of Justice by the 1971 Protocol,6thus promoting a more uni-

versal application of the Convention throughout the Member States.

Despite the fact that the Convention has ceased to regulate relations between most

of the Member States, it is still important for the purpose of uniform interpretation

and application of the Regulation, since continuity between the Brussels Convention

and this Regulation should be ensured.7The case law of the Court of Justice inter-

preting provisions of the Brussels Convention that were transferred unchanged into the

Regulation should remain a valid source for interpreting the provisions of the Regula-

tion. For this reason, case law of the Court of Justice as well as the Official Reports

on the Convention written by Professor Schlosser8(hereinafter referred to as ‘the

Schlosser Report’) will be used to analyse not only the Convention, but the Regulation

as well.

The well-known international law rule, actor sequitur forum rei,is the general prin-

ciple of jurisdiction of the Brussels Convention.9This means that individuals should

be sued in the court of the place where they are domiciled. This rule may be derogated

European Law Journal Volume 10

124 © Blackwell Publishing Ltd. 2004

4Technically, the terms ‘contracts concluded online’, or ‘contracts concluded through the Internet’, or ‘con-

tracts concluded by electronic means’ are not the same; however, in this paper they will be used inter-

changeably to mean those contracts for conclusion of which it is enough to access the website of the

co-contractor and perform certain steps identified there.

5See Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judg-

ments in Civil and Commercial Matters, OJ C 376 (1999), at 1–17.

6Protocol on the interpretation of the 1968 Convention by the Court of Justice OJ C 027 (1998), at 28–33

(consolidated version).

7Recitals 19 of the Regulation.

8Schlosser Report, at 71. Other official reports on the Convention: the Jenard Report OJ C 59 (1979); the

Evrigenis and Kerameus Report OJ C 298 (1986); The Almeida Cruz, Desanes Real, Jenard Report

OJ C 189 (1990).

9Article 2 of the Convention.