TEST The E-commerce Directive and Private International Law Michael Hellner The Hague, 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” Give ”old” private international law rules precedence –Art. 20 Rome Convention –Art. 23 Rome II Regulation

TEST 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 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

TEST 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