Rome II

Article 6

Unfair competition and acts restricting free competition

1. The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.

2. Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply.

3. (a) The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.

(b) When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court.

4. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

Holdings

C-191/1528 Jul 2016

Verein für Konsumenteninformation v Amazon EU Sàrl

Without prejudice to Article 1(3) of Regulations No 593/2008 and No 864/2007, the law applicable to an action for an injunction within the meaning of Directive 2009/22 against the use of allegedly unfair contractual terms by an undertaking established in one Member State and concluding contracts by electronic commerce with consumers resident in other Member States, including the State of the court seised, is determined under Article 6(1) of Regulation No 864/2007. The law applicable to the assessment of a particular contractual term is always determined under Regulation No 593/2008, whether that assessment is made in an individual action or a collective action.

C-191/1528 Jul 2016

Verein für Konsumenteninformation v Amazon EU Sàrl

Under Article 3(1) of Directive 93/13, a non-negotiated term in the general terms and conditions of a seller or supplier which states that an online consumer contract is governed by the law of the Member State where the seller or supplier is established is unfair, in so far as it misleads the consumer into thinking that only that law applies, without informing the consumer that Article 6(2) of Regulation No 593/2008 also gives the consumer the protection of the mandatory provisions of the law that would apply without that term; that is for the national court to ascertain in the light of all the relevant circumstances.