The Geoblocking Regulation and party autonomy in the conflict of laws: A formalist view on the European Court of Justice's approach towards directing activities on the internet
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In the ‘ Geoblocking Regulation ’ of 28 February 2018, the EU legislator forbids traders acting in cross - border situations to use discriminatory measures that may hinder foreign customers in concluding contract s with them. The regulation aims to support the creation of a ‘ digital single market ’ , but is said to conflict with art. 17(1)(c) of the Brussels I Regulation (recast) (BIR(r)) and art. 6(1)(b) Rome I Regulation (RIR) . These provisions stat e that the applicable law and competent court in consumer contracts are those of the Member State of the consumer ’ s domicile / residence if the trader at issue has directed his business activities to that Member State. Although art. 1(6) of the Geoblocking Regulation states that a trader ’ s compliance with the regulation shall not be regarded as constituting such directing of activities, the main opinion in legal circles is that the regulation amounts to a restriction of party autonomy and ma y even create a de facto obligation to conclude contracts with foreign consumers . Considering case law of the European Court of Justice (ECJ) on directing activities on the internet , it is argued that the means of ‘ geoblocking ’ – blocking foreign customers from entering a certain website – is indispensable for traders in avoiding the accusation of ‘ directedness ’ , and thereby in preserving their legal certainty. In private international law, the consequence of the Geoblocking Regulation may therefore be that traders have no control anymore over the irdirecting of activities to other Member States. Considering the above, the goal of this thesis was to find out how the Geoblocking Regulation should be reconciled with the private international legal framework in which it is to be incorporated , if party autonomy is to be upheld by the ECJ . The research makes use of two theoretical frameworks, which both pertain to at least one of the conflicting laws mentioned . Firstly, the research delves into the position of party autonomy in EU law generally, that is in primary EU law, and more specifically the Charter of Fundamental Rights (CFR) . In the end, this part of the research gives a positive - law view on the conception of party autonomy that should be applied to the relationship between the Geoblocking Regulation and artt. 17(1)(c) BIR(r) and 6(1)(b) RIR. Secondly, the research discusses the position of party autonomy as it is classic ally understood in the field of private international law. Although the B IR(r) and R IR are part of EU law, the ir origins are much older. For this reason, the discussion arrived at the theory of legal formalism , according to which private law has its own distinct rationality, corrective justice , and so - called ‘ objective connecting factors ’ in private international law should be seen as presuppositions concerning the will of the parties in the private international law process. Having worked out both theoretical frameworks and the Geoblocking Regulation and ‘directed activity’ criterion separately, the re search focused on the goal of reconciliation. For this, a third framework was needed to overcome clashes between the former two . This third theoretical framework was sought in the formalism articulated by Lon Fuller. Fuller addressed the importance of the rule of law, separated by him into eight desiderata, for the existence of law as such. Thanks to Fuller’s theory, th e principle of p art y autonomy that follows from the Charter of Fundamental Rights is liberated from the instrumental principles that underlie general EU law and brought in line with the formalist principles of private international law . Primary EU law and private international law could then be reconciled, after which it was possible to reconcile the specific rules laid down in the Geoblocking Regulation and artt. 6(1)(b) RIR and 17(1)(c) BIR(r). The conclusion of the thesis amounts to a paradox . In trying to reinforce the position of consumers in the digital single market , the EU legislator forces the judiciary into a position in which they must re interpret the ‘directed activity’ criterion in a way that threatens to undermine consumer protection in its entirety. In cases where the trader would otherwise need to rely on geoblocking in order to make clear his intention not to direct activities towards the consumer’s Member State, he should now have the opportunity to avoid directing activities by merely placing warnings on his website, such as disclaimers and drop - down menus. Given consumers’ own responsibility as autonomous beings under formal ism , traders cannot be held responsible for a consumer’s failure to understand a clear and intelligible ‘warning sign’. In order to counter the possibility of abuse of law , then, the ECJ should resort to a ‘ dis - targeting approach ’ and develop rules by which to evaluate traders’ good faith in appealing to ‘warning signs’. A list of factors by which to determine the directedness of web sites then remains relevant, if only in a different manner than before.