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8 Nov 2000, Spain

Dear Dr. Ecommerce,

I have a question concerning what Directive 2000/31/EC calls "coordinated field" and its possible impact on the application of the Rome Convention on applicable law to contractual obligations, taking also into account that Directive 2000/31/EC provides that the activity of the service provider must be ruled by the laws making up the "coordinated field" of his/her country of establishment. If the "coordinated field" includes, not only the obligations imposed on the service provider by the national law which implements Directive 2000/31/EC, but others in force in his/her country of establishment regarding, inter alia, advertising, contracts and liability, to what extent this provision is not affecting the rights of parties and especially those of consumers, as regards the law applicable to their contracts, stated in the Rome Convention? Directive 2000/31/EC declares that those rights will be respected (article 1.4 and indents 5 and 6 of the Annex, in relation to article 3.3), but I can´t figure out how the principle of country of origin and the Rome Convention are going to live together without conflicts. Perhaps, all my doubts come from a misunderstanding of the concept of "coordinated field". Could you explain plainly to me what does it mean? Thank you very much in advance.

Best wishes,

Gema.

Dear Gema:

I asked ace e-lawyer Corinna Schulze your question. She replies:

"I think that your definition of 'coordinated field' is too strict. Paragraph 21 of the 'Introduction' lays down what the scope of the coordinated field is. It does say inter alia that the coordinated field covers requirements to on-line advertising and on-line contracting etc, but to my understanding it concerns only the information which must be given by the provider to the consumer/the other party before the contract is concluded. (see Article 10 and 11) and not the applicable law or the choice of law itself.

The Annex and also, for example, Paragraph 55 make it very clear that there are certain areas (eg. IPR, private autonomy and contractual obligations concerning consumer contracts) where the Directive will not apply.

The 'country of origin' principle provides only that service providers are subject to the law of the Member State in which they are established but does not affect their choice of law/private autonomy which means that the Rome Convention and the principle can live together very well.

You can find more information under http://www.drecommerce.com/dontpanic.html
(especially under: which law is applicable/contracts)"

Good luck,

Dr. Ecommerce