Privacy Protection In Electronic Communications

Profession:Kaltons Solicitors

From March 2002 a new regime dealing with questions of jurisdiction shall come into force throughout Europe replacing the Brussels Convention. In short form it is known as the 'Brussels 1 Regulation', the long form of which is 'Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters' ('Brussels 1'). Among other things, Brussels 1 will deal with the question of jurisdiction for electronic consumer contracts.

Brussels 1 provides for the 'free movement' of judgments in civil and commercial matters in the EU. Its policy is to ensure that rules of jurisdiction and enforcement of judgments are dealt with consistently in the EU.

Put simply, jurisdiction refers to the court of a country in which an action can be brought. This is an important question to ponder even before matters get to the stage of litigation, because even if a litigant has a strong case and the 'law' is favourable to him, if the court to which he turns does not have jurisdiction to hear the case, all is lost!

Contracts In General (i.e. B2B as well as B2C contracts)

In respect of contracts in general, Brussels 1 provides that a person domiciled in a member state can be sued in the courts of the place of performance of the obligation. And place of performance, significantly, is stated to be in the case of sale of goods, the place in a member state where, under the contract, the goods were delivered or should have been delivered. In the case of services, however, the place of performance is defined as 'the place in a Member State where, under the contract, the services were provided or should have been provided'.

The one comment that can be made here is that while the place of performance for a 'real' contract may be easy to ascertain, it may not be so in the case of on-line sales.

On-Line Consumer Contracts (i.e., B2C contracts only)

In the case of on-line consumer contracts - in addition to the rules that apply to contracts in general as dealt with above - Articles 15 and 16 of Brussels 1 state that if (1) it is a contract for the sale of goods on instalment credit terms; or (2) for a loan repayable by instalments or any other form of credit, made to finance the sale of goods; or (3) the contract has been concluded with an on-line seller who carries out business in the consumer's domicile state or targets the consumer's state; the consumer can sue the seller either in the courts of...

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