[Ecommerce] BEUC on Hague convention
Ursula Pachl
ursula.pachl@beuc.org
Tue, 15 Feb 2000 19:51:47 +0100
Below is part of a comment which we sent to the European Commission and the
MS last automn on article 7 (consumer contracts) of the draft convention.
Its aims at bringing the convetnion in line with the proposed EU Brussels
regulation:
"BEUC very much welcomes the initiative undertaken by the Hague conference
to establish a convention on jurisdiction and the effects of judgements in
civil and commercial matters. In the area of globalisation, more than ever
an international legal framework is needed, which ensures that consumers are
protected by certain core consumer rights and standards, regardless where
the business with which they trade is established. To ensure that the
consumers' right to redress and access to justice is guaranteed and that
effective instruments and mechanism to empower consumers to make use of
their rights are in place is a crucial requirement of international consumer
policy.
We believe strongly, that consumers must be entitled to access to their own
courts in cross-border e-commerce cases.
Therefore we very much support the draft Article 7 on consumer contracts,
which aims at ensuring that consumers' as plaintiffs have access to the
courts in their own countries. We consider this to be the basic
pre-condition to ensure consumers confidence in cross-border transactions.
Our remarks below aim in a first instance to ensure that the provisions in
the Hague draft convention reflect the same level of protection as the
European Commission's proposal for a regulation on jurisdiction and
enforcement of judgements in civil and commercial matters (in the
following: "Brussels Convention regulation").
Detailed comments
Draft Article 7 "Contracts concluded by consumers"
1) A plaintiff who concluded a contract for a purpose which is outside its
trade or profession, hereafter designated as the consumer, may bring a claim
in the court for the place where it is habitually resident in a Contracting
State, if
a) The conclusion of the contract on which the claim is based is related to
trade or professional activities that the defendant has engaged in or
directed to that State, in particular in soliciting business through means
of publicity, and
b) The consumer has taken the steps necessary for the conclusion of the
contract in that State
2) A claim against the consumer may only be brought by a person who entered
into the contract in the course of its trade or profession before the court
for the place of habitual residence of the consumer.
3) The parties to a contract within the meaning of paragraph 1 may, by an
agreement which conforms with the requirements of Article 4, make a choice
of forum -
a) If such agreement is entered into after the dispute has arisen, or
b) To the extent only that it allows the consumer to bring proceedings in
another court.
Scope
We welcome the definition of the scope of Article 7 of the draft
convention, which covers all contracts concluded for a purpose which is
outside the plaintiff's trade or profession.
Pre-conditions of applicability
Article 1 paragraph 1 a)
Regarding paragraph 1 a), which foresees that the consumer can pursue action
in his/her own country in case that the defendant has engaged in or directed
(trade or professional activities) to that State, we strongly consider that
this paragraph should be changed regarding the wording "directed to that
State". It should read "directed to those States".
The use of the plural form here is necessary to ensure that typical
e-commerce activities are clearly covered. Business which operate websites
on the I-net, for example, address their offers not only to a specific
market or a specific country, but often to many markets and countries in
Europe or in the world. This should be taken into account in the wording of
this article. Otherwise it could be considered that this Article only
applies in case of specific targeting of one country. The proposed EC
regulation on jurisdiction in its corresponding Article 15 expressively
refers to both cases, namely that the commercial activity is directed to the
state where the consumer resides or is directed to several countries,
including the country where the consumer resides.
For similar reasons, we would ask for a change as regards the wording: " in
particular in soliciting business through means of publicity". The
philosophy of this wording is based on the "old" concept of the Brussels
Convention on the passive and active consumer - the passive consumer being
solicited into the contract by advertising etc.. We consider that the
borders between passive and active consumer are blurred regarding the new
techniques of marketing and that it will be very often difficult to assess,
what is publicity and how the solicitation was structured.
As does the Commission's proposal for a regulation, the Hague conference
draft aims at taking into account the new electronic marketing methods with
which consumers are confronted in e-commerce transactions and which will
decisively change the way in which cross-border contracts are solicited. We
would therefore suggest to adapt the wording to the EC proposal for a
regulation and to provide for application to activities which are directed
to the member states "by any means" . This wording in our eyes covers
technical as well as functional aspects.
Article 1 paragraph 1 b)
On Article 1 b) : We would ask to delete this provision. There is not need
to maintain this cumulative pre-condition in e-commerce transactions as well
as in the traditional forms of trade. This pre-condition is inspired by
the current article 13 Brussels convention. By contrast it has been dropped
by the new draft regulation.
Article 3
On Article 3 b)
We are very skeptical regarding the permissibility on choice of forum
clauses in consumer contracts and in any case consider that choice of forum
clauses in consumer contracts can only be permitted if they allow for an
additional ground of jurisdiction. This is not clear regarding the wording
of this provision. Therefore we suggest to amend the wording as follows:
"To the extent only that it allows the consumer to bring proceedings in
another court, in addition to the court referred to in paragraph 1. "
In this context we would like to mention further that the Hague conference
in co-operation with the University of Geneva in September 19999 organised a
"Round table" on the questions of Private international law raised by
e-commerce. The general draft recommendations arising from this Round Table
suggest that, whenever the plaintiff is an individual (consumer or
eventually SME), in addition to the place of business or habitual residence
of the defendant, an alternative ground of jurisdiction should be the place
of business or the habitual residence of the consumer (whether the consumer
is "active" or "passive"). We would ask to follow this recommendation in any
further negotiations on the draft convention.
Other comments
We would like to mention, that Article 6 of the draft convention
("Contracts") states that, - apparently for business to business
transactions only - , in case of supply of goods and probably also in the
most cases of the supply of services, the business plaintiff can bring an
action against the supplier in the country where the goods/services where
provided to. This will very often be the country where the plaintiff is
established. Therefore this provision reflects an unconditional country of
destination approach, which in this unconditional form, is not provided for
consumers in Article 7. We wonder, why business is more protected than
consumers are?"
END
-----Original Message-----
From: James Love [mailto:love@cptech.org]
Sent: Tuesday, February 15, 2000 6:04 PM
To: Torres, Frank
Cc: ecommerce
Subject: Re: [Ecommerce] Hague Convention on Jurisdiction and Foreign
Judgments
"Torres, Frank" wrote:
>
> Some of the FTC staff would like to meet with consumer groups about the
> Hague Convention. If anyone is interested, please let me know. It is my
> understanding that there is an effort to remove some language on
> jurisdiction that I understand is favorable to consumers. They are
> suggesting that negotiations be delayed until everyone has a chance to
fully
> contemplate what any changes will do. I understand that there is a
meeting
> scheduled for later this month in Ottawa.
>
> Please let me know if you are interested in meeting with the FTC on this
> issue, or if you have any thoughts on whether delaying negotiations is in
> our interests or not.
>
> Thanks. Frank.
Vergil and I will attend the FTC meeting.
I found the text below in the press release, it seems pretty important.
I would be pleased if anyone has further details of this proposal:
5. For business-to-consumer transactions, further assessment is
required in the light of all the interests involved. Particularly,
during the second plenary, Professor Catherine Kessedjian proposed to
avoid the traditional dichotomy between the "country of origin" (i.e.
that of the seller or provider) and the "country of reception" (i.e.
that of the consumer). She proposed to start with a process of
site-certification along the lines of the work done within the icc and
other private organisations. This certification process should include
minimum substantive rules of protection for the consumer including
warranties, and a fair and easy dispute resolution mechanism which could
possibly be free of charge to the consumer. When a site has obtained the
certification label, it could provide for the application of the law of
the country of origin and for the courts of that country for the
residual cases which could not be solved by the dispute resolution
mechanism part of the certification. If a site has not been certified,
then the law and the courts of the consumer's location would be
competent.
=======================================================
James Love, Director | http://www.cptech.org
Consumer Project on Technology | mailto:love@cptech.org
P.O. Box 19367 | voice: 1.202.387.8030
Washington, DC 20036 | fax: 1.202.234.5176
=======================================================
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