Be careful with your choice of law provisions in EU consumer contracts
On July 28, 2016, the Court of Justice of the European Union (ECJ) held that a choice of law provision in a e-commerce website's terms and condition could be unfair to consumers. Verein für Konsumenteninformation v. Amazon EU Sàrl, Case C-191/15. In this case, the 2012 version of the Terms and Conditions of Amazon Germany's website (amazon.de) contained a choice of law provision requiring Luxembourg law. Case C-191/15, at ¶ 30. Applying the Unfair Terms in Consumer Contracts of 1993, Directive 93/13/EEC, the ECJ found the choice of law provision could be unfair if it leads Austrian consumers to believe that only Luxembourg law applies when in fact, the consumer has certain mandatory rights under Austrian law. The ECJ then sent the case back to the Austrian court, which had asked the ECJ to examine this question, for a determination as to whether the choice of law provision was unfair. What does this mean for you? If you have a choice of law provision in your EU consumer contracts, you should examine those provisions carefully to determine whether you need to add some qualifying language about the consumer not waiving any rights under their national laws.