تصمیمات قضایی در حقوق بین الملل خصوصی Judicial Decisions on Private International Law

1 Introduction In the general conditions of Amazon Europe Core Sa`rl, a company established in Luxembourg, which owns and exploits Amazon.de, a choice-of-law clause for Luxembourg law is included.1 A similar text was the subject of preliminary questions which the Austrian Supreme Court, the Oberster Gerichtshof (OGH), referred to the Court of the Justice of the European Union (CJEU or the Court). It asked, amongst other things, whether Article 4 Rome II2 governed a collective action started by an Austrian consumer organization, Verein fu¨r Konsumenteninformation (VKI). It sought an injunction to prohibit terms in the general conditions of a Luxembourg company that directed its activities at Austrian consumers through a website in German. VKI considered the clauses to be contrary to the law. To have a better understanding of the issues raised, the facts and the decisions by the Austrian courts at first instance and on appeal will also be discussed. Subsequently, the CJEU’s decision will be commented upon. These comments will focus on the choice-of-law clause in general conditions in business to consumer contracts (b2c contracts). 2 Facts and the Decisions by the Austrian Courts Amazon EU Sa`rl (Amazon),3 a company established in Luxemburg, owned and exploited the website Amazon.de. This website in German addressed consumers, who had their habitual residence in Austria. Moreover, Amazon concluded electronic contracts with those consumers in Austria. Up until mid-2012, it used the general terms and conditions under scrutiny. Term 12 of those terms and conditions concerned a choice of law for Luxembourg law, the legal system of Amazon’s place of establishment.4 VKI started a collective action against Amazon and requested an injunction within the meaning of Directive 2009/225 to prohibit the use of some of the general terms and conditions, because VKI considered them to be against the law.6 The proceedings before the CJEU focused, in particular, on the choice-of-law clause. Since it concerned an international situation, it had to be determined which conflict rule or rules applied in the case of a collective action against a trader who targeted consumers in their country of habitual residence and in which an injunction was sought to prevent the use of allegedly unfair terms. Both the court at first instance and the court of appeal held that this issue fell within the scope of Rome I, the Regulation on the law applicable to contractual obligations.7 However, they applied different provisions.