Internet, consumer contracts and private international law: what constitutes targeting activity test?

Abstract

ABSTRACT A foreign business is subject to consumer jurisdiction and applicable law rules provided in Articles 17–19 Brussels Ibis Regulation and Article 6 Rome I Regulation only if it conducts commercial activities targeted at the consumer’s home country. This paper aims to answer the question what constitutes targeting activity test, especially in the context of the Internet and E-commerce, for the purpose of applying such pro-consumer private International law rules. To this end, it is necessary to examine the non-exhaustive list of factors given by the CJEU in the influential Pammer and Hotel Alpenhof judgment. This paper argues that no single factor is decisive, instead, an overall assessment should be conducted. Moreover, the targeting test should perhaps be supplemented by the dis-targeting test, which focuses more on the ring-fence mechanism. In this regard, apart from asking consumers individually about their whereabouts, it can be done by exploiting geo-location and geo-blocking technologies to technologically block unsolicited consumers.