Case law: when does a website focus on a particular country?
More and more online retailers also want to sell internationally. This is a relatively simple step. One of the most important things is to ensure that you are discoverable across the border, but this is not without (legal) consequences. Pointing a website to a certain country has two important legal consequences for the webshop
More and more online retailers also want to sell internationally. This is a relatively simple step. One of the most important things is to ensure that you are discoverable across the border, but this is not without (legal) consequences.
Pointing a website to a certain country has two important legal consequences for the webshop. Firstly, the consumer may summon the merchant in the country where the consumer lives and secondly, in principle, the law of that country also applies. You must then comply with the rules of that particular country. The question is then; when does a website focus on a particular country? This is important because as a shop you do or do not have to deal with the rules of the country where the customer lives.
The rules derive from private international law. These are the rules that determine which court is competent to judge a dispute and which law applies to an agreement. Webshops that sell to business customers (B2B) have the opportunity to make mutual agreements about this and do not have to apply in the introduction. This contribution therefore only concerns online sales with consumers (B2C).
In 2010, the European Court of Justice discussed the question of when a website focuses on a country. The mere fact that a website is consultable in the country where the consumer lives is insufficient to speak of 'focus on'. A website only focuses on a certain country 'if there are indications that the company intended to win the consumers of that country as a customer'. What are indications that a shop is targeting a particular country?
Indications that a website is targeting a specific country
1) State that the goods are offered in a country
Think of the specific mention of the shipping / delivery times for, for example, Germany or a self-made country list (choice) from which a consumer can choose in the ordering process.
2) Advertise with search engine
Also paying a search engine service (such as Google) to show users who type certain keywords to show an advertisement for the products or services of the entrepreneur is an indication.
3) Combination of secondary factors
The above factors are obvious indications that the commercial activities focus on a country. But also a combination of secondary factors can provide evidence. This is, for example, the mention of a telephone number with an international prefix, the use of a different top level domain than that of the country where the entrepreneur is located (or the use of a generic top level domain such as .com or .eu). These may be directions that start in that other country or include testimonials from international customers on the website.
These factors are probably not enough in themselves, but possibly together. For example, having a. The top level domain is probably not sufficient. Registration could also only be to protect domain name hijackers, for example if .the only redirect to the .nl. But in combination with German text though.
4) Language or currency
If a website can also be consulted in another language or can be paid with another currency, then this is also an indication that the commercial activities focus on a country.
Finally, the intermediary who represents an online retailer can also influence this. For example, an Italian shop that sells via ebay.de (country-specific top level domain and website in German language). The agreements of Germans then fall under German law.
When it comes to the question whether the commercial activities of a web shop are focused on a particular country, it is the entrepreneur's will to focus his activities on one or more countries. The fact that a website can only be consulted in a specific country is insufficient for this. But to explicitly mention another country or to advertise it in a search engine on a country are clear indications of that will. Various 'small' instructions can also form this evidence. Web retailers who want to sell internationally should therefore take this into account. It is being maintained nationally. A website that focuses on Germany, for example, but does not comply with this law, then risks a German fine.
*) This article is also published on the Webwinkelrecht.nl website