Verein für Konsumenteninformation v Amazon EU Sàrl

1.

Verein für Konsumenteninformation (VKI), a consumer protection association established in Austria, has brought before the Austrian courts an action for an injunction seeking to prohibit the use by Amazon EU Sàrl, established in Luxembourg, of allegedly unfair terms contained in its general terms and conditions in respect of consumers resident in Austria.

2.

In that context, the Oberster Gerichtshof (Supreme Court, Austria) asks the Court, first, about the law applicable in such an action to the examination of the unfairness of those terms. Must it be determined by applying the conflict-of-law rules in Regulation (EC) No 864/2007 (‘the Rome II Regulation’) ( 2 ), since the applicant association seeks to defend the collective interests of consumers on the basis of a right which has been conferred on it by law, independently of any specific contractual relationship? Or must the law applicable to such an examination be determined by applying the conflict-of-law rules established by Regulation (EC) No 593/2008 (‘the Rome I Regulation’) ( 3 ), in so far as any harm to the collective interests of consumers would originate in contractual relationships between those consumers and the defendant undertaking?

3.

The referring court asks the Court, next, whether a contractual term designating, as the law applicable to a contract concluded in the course of electronic commerce, the law of the Member State where the seller or supplier is established is unfair within the meaning of Directive 93/13/EEC ( 4 ).

4.

Finally, the referring court seeks to ascertain, in essence, under which national law transposing Directive 95/46/EC ( 5 ) the lawfulness must be assessed of contractual terms providing for the processing of personal data by an e-commerce undertaking such as Amazon EU, which directs its activities towards a Member State other than that in which it is established.

5.

Article 1(1) of the Rome I Regulation provides that ‘[t]his Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters …’.

6.

Article 3(1) of that regulation provides that ‘[a] contract shall be governed by the law chosen by the parties’. According to Article 3(5) of that regulation, ‘[t]he existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 10, 11 and 13’.

7.

Article 6 of that regulation, entitled ‘Consumer contracts’, states:

‘1.   Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

and the contract falls within the scope of such activities.

2.   Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.

…’

8.

Article 10(1) of that regulation provides that ‘[t]he existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this Regulation if the contract or term were valid’.

9.

According to Article 1(1) of the Rome II Regulation, it ‘shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters …’.

10.

Article 4 of that regulation is worded as follows:

‘1.   Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

…

3.   Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’

11.

Under Article 6(1) of that regulation, ‘[t]he 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’.

12.

Article 12(1) of that regulation provides that ‘[t]he law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract, regardless of whether the contract was actually concluded or not, shall be the law that applies to the contract or that would have been applicable to it had it been entered into’.

13.

Article 1 of Directive 2009/22/EC ( 6 ) provides:

‘1.   The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to actions for an injunction referred to in Article 2 aimed at the protection of the collective interests of consumers included in the Directives listed in Annex I, with a view to ensuring the smooth functioning of the internal market.

2.   For the purposes of this Directive, an infringement means any act contrary to the Directives listed in Annex I as transposed into the internal legal order of the Member States which harms the collective interests referred to in paragraph 1.’

14.

Point 5 of Annex I to that directive includes Directive 93/13.

15.

According to Article 2(2) of Directive 2009/22, it ‘shall be without prejudice to the rules of private international law with respect to the applicable law, that is, normally, either the law of the Member State where the infringement originated or the law of the Member State where the infringement has its effects’.

16.

Article 3 of that directive defines the ‘entities qualified to bring an action [for an injunction]’ as ‘any body or organisation which, being properly constituted according to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in Article 1 are complied with …’.

17.

Article 3(1) of Directive 93/13 provides that ‘[a] contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’.

18.

According to Article 4(1) of that directive, ‘[w]ithout prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent’.

19.

Article 5 of that directive states:

‘In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7(2).’

20.

Article 7 of that directive reads as follows:

‘1.   Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

2.   The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

…’

21.

The annex to Directive 93/13 contains a list of examples of terms which may be regarded as unfair. Point 1(q) of that annex refers to terms aimed at ‘excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy …’.

22.

Article 4 of Directive 95/46 provides:

‘1.   Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where:

…’

23.

Paragraph 6(3) of the Konsumentenschutzgesetz (Law on consumer protection) of 8 March 1979 (‘the KSchG’) provides that a contractual provision included in general terms and conditions or pre-printed contractual forms is to be ineffective if it is drafted in unclear or unintelligible language.

24.

Paragraph 13a(2) of that law provides that Paragraph 6 is to apply for the purposes of consumer protection, regardless of the law applicable to the contract, where the contract was entered into in the context of the activities of an operator or his agent pursued in Austria and directed towards the conclusion of such contracts.

25.

Amazon EU is an electronic commerce company established in Luxembourg. That company has stated in its written observations that it is a subsidiary of the company Amazon.com, Inc., whose registered office is in the United States. According to the referring court, the group to which Amazon EU belongs does not have an establishment in Austria. Nonetheless, that company concludes online sales contracts with consumers resident in Austria via a German-language website (www.amazon.de).

26.

The contracts concluded with those consumers included, until mid-2012, general terms and conditions, twelve clauses of which are the subject matter of the dispute in the main proceedings. In particular, clauses 6, 9, 11 and 12 were worded as follows:

27.

The VKI is a consumer protection association established in Austria and authorised to bring actions for injunctions under Article 3 of Directive 2009/22. It brought before the Handelsgericht Wien (Commercial Court, Vienna, Austria) an action for an injunction against the use of the twelve clauses mentioned above and for publication of any judgment upholding its action for an injunction. According to the VKI, those clauses infringe several Austrian laws, including the KSchG and the Datenschutzgesetz (Law on data protection, ‘the DSG’).

28.

That court allowed the action in relation to eleven of the twelve clauses at issue. It held clause 12 to be invalid pursuant to Article 6(2) of the Rome I Regulation, on the ground that the choice of applicable law cannot have the result of depriving consumers of the protection afforded to them by the law of their State of habitual residence. According to that court, the validity of the other clauses, apart from the provisions on data protection contained in clauses 6, 9 and 11, therefore had to be assessed in accordance with Austrian law. On the other hand, the validity of clauses 6, 9 and 11 had to be assessed under Luxembourg law, in accordance with Directive 95/46.

29.

Both parties appealed against that judgment to the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria). That court confirmed that the law applicable to the examination of the clauses at issue must be determined by applying the rules on conflict of laws laid down in the Rome I Regulation. However, it considered that clause 12 could not be held to be unlawful on the basis of Article 6(2) of that regulation. Instead, pursuant to Article 10(1) of the Rome I Regulation, the assessment of its validity had to be carried out in the light of Luxembourg law. That court therefore set aside the judgment of the court of first instance and referred the case back to the latter so that it could carry out such an assessment. The Oberlandesgericht Wien (Higher Regional Court, Vienna) also stated that, in the event of clause 12 being lawful under Luxembourg law, the Handelsgericht Wien (Vienna Commercial Court) would have to examine the other clauses in the light of that law. It should then make a comparison with Austrian law in order to determine whether Austrian law contains provisions which are more favourable to consumers. The choice of Luxembourg law cannot, under Article 6(2) of the Rome I Regulation, deprive consumers of the protection afforded to them by such provisions.

30.

The VKI brought the case before the Oberster Gerichtshof (Supreme Court, Austria), which decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

31.

The VKI, Amazon EU, the Austrian, German and United Kingdom Governments and the Commission submitted written observations and were represented at the hearing on 2 March 2016.

32.

By its first three questions, the referring court asks the Court to rule on the law applicable ‘to an action for an injunction’ brought by a consumer protection association under a national law transposing Directive 2009/22 and seeking to prohibit a professional from using unfair terms. ( 7 )

33.

First of all, I think it is useful to clarify the scope of those questions by emphasising that any conflict of laws arising in judicial proceedings concerns a specific legal issue. The same proceedings can therefore give rise to several conflicts of laws concerning different issues of law. Each of them must be resolved separately by applying the rules on conflict of laws governing the issue concerned, possibly in favour of different national laws.

34.

Thus, where an action concerns both ‘contractual obligations’ within the meaning of Article 1(1) of the Rome I Regulation and ‘non-contractual obligations’ within the meaning of Article 1(1) of the Rome II Regulation, the law applicable to each of those obligations must be determined according to different rules. ( 8 )

35.

Accordingly, in the present case, it is necessary to identify the law applicable not ‘to the action for an injunction’ but rather to the specific legal issue giving rise to the conflict of laws which the national court seeks to resolve. As is clear from the order for reference, that issue concerns the examination of the unfairness of the terms which the action for an injunction seeks to have prohibited.

36.

Article 2(2) of Directive 2009/22 refers, with respect to the law applicable in actions for injunctions falling within the scope of the directive, to the ‘rules of private international law’ of the forum.

37.

In order to answer the first question, it must first be determined whether the rules of private international law applicable are, in the present case, those laid down in the Rome I Regulation or those laid down in the Rome II Regulation. ( 9 ) That assessment depends on whether the obligations in respect of which the conflict of laws arises are of a contractual or non-contractual nature.

38.

The Court has not yet had occasion to rule on the classification of the obligations relied on in an action for an injunction seeking to prohibit the use of unfair terms for the purposes of defining the respective scopes of the Rome I and Rome II Regulations.

39.

However, regarding the classification of such an action (also brought by the VKI) for the purposes of determining jurisdiction, the Court held, in the judgment in Henkel, ( 10 ) that it is not a ‘matter relating to a contract’ within the meaning of the rule of special jurisdiction laid down in the instrument which preceded Regulation (EC) No 44/2001 (‘the Brussels I Regulation’). ( 11 ) It justified that conclusion by the absence of a contractual relationship between the seller and the consumer protection association, which was acting on the basis of a right conferred by statute for the purpose of prohibiting the use of unlawful terms by the professional. According to the Court, that applies regardless of whether the action is purely preventive in nature or whether it is subsequent to contracts already concluded with certain consumers. ( 12 )

40.

By contrast, it is clear from that judgment that such an action is a matter relating to tort, delict or quasi-delict. Such an action seeks to establish the liability of the defendant ‘in respect of the trader’s non-contractual obligation to refrain in his dealings with consumers from certain behaviour deemed unacceptable by the legislature’. ( 13 )

41.

In the present case, the Court is asked to state whether the same assessment criteria must be used to determine whether the obligations relied on in an action for an injunction are contractual or non-contractual within the meaning of the Rome I and Rome II Regulations.

42.

According to the VKI and the Austrian and United Kingdom Governments, those obligations are non-contractual and fall within the scope of the Rome II Regulation. On the other hand, Amazon EU, the German Government and the Commission maintain in essence that, although the other questions raised in the action for an injunction may concern non-contractual obligations, ( 14 ) the assessment of the unfairness of the terms at issue in that action must be the subject of a separate choice of law under the Rome I Regulation. Under Article 10(1) of that regulation, the lawfulness of the terms must then be assessed in the light of the law which would govern them under that regulation if those terms were valid.

43.

For the reasons set out above, I support the first of those two approaches.

44.

In the first place, the question of the unfairness of the terms at issue does not, in my view, concern contractual obligations.

45.

The legislature has not defined the concepts of contractual obligation and non-contractual obligation within the meaning of the Rome I and Rome II Regulations. ( 15 ) However, the Court has outlined their scope in its judgment in ERGO Insurance and Gjensidige Baltic. ( 16 ) It concluded in that judgment that a contractual obligation denotes a ‘legal obligation freely consented to by one person towards another’. ( 17 ) The concept of non-contractual obligation refers, for its part, to any obligation arising from damage as defined in Article 2 of the Rome II Regulation. ( 18 )

46.

However, the Court has not clarified whether the concept of contractual obligation necessitates a commitment between the parties to the dispute, ( 19 ) as it required, in particular, in the judgment in Henkel, ( 20 ) for an action to be regarded as a matter relating to a contract within the meaning of the rules on conflict of jurisdictions. If that requirement were extended to the concept of contractual obligation, the Rome I Regulation could not govern the determination of the law applicable to the examination of unfair terms in an action for an injunction. The applicant association and the defendant professional are not in fact connected by any contractual obligation.

47.

In that regard, recitals 7 of the Rome I and Rome II Regulations emphasise the need for a consistent definition of the respective material scopes of those regulations and of the Brussels I Regulation. However, in my view, it does not follow from this that the concepts of contractual matter within the meaning of the Brussels I Regulation and contractual obligation within the meaning of the Rome I Regulation must automatically and entirely overlap. Rather, they should be interpreted not in an identical but in a parallel manner.

48.

Having made this clear, I consider that the concept of contractual obligation does not depend on the identity of the parties to the dispute. The classification of an obligation for the purposes of applying the rules on conflict of laws depends on the (contractual or non-contractual) source of that obligation. The identity of the parties to the dispute cannot therefore change the nature of the obligation. ( 21 )

49.

Moreover, as the Commission has observed, the requirement of a commitment between the parties to the dispute, which the Court has stated as a condition for the application of the rule of special jurisdiction attached to the contractual matter, ( 22 ) is based on the consideration that that rule is not foreseeable by a defendant who is not a party to the initial contract, such as a sub-buyer of goods. ( 23 ) In fact, that consideration is not relevant to the determination of the applicable law.

50.

However, although the concept of contractual obligation is not limited to the obligations linking the parties to the proceedings, it implies at the very least an actual and existing commitment — which is absent in this case.

51.

I note in this connection that the Rome I Regulation does not enable designation of the law applicable to obligations which have not yet arisen. ( 24 ) In particular, Article 6 of that regulation applies, according to paragraph 1, only in the case of a contract ‘concluded’ between a professional and a consumer.

52.

Conversely, the Rome II Regulation applies to non-contractual obligations that are ‘likely to arise’. ( 25 ) They include, in particular, obligations arising out of dealings prior to the conclusion of a contract ( 26 ) or out of an act of unfair competition likely to affect the collective interests of consumers. ( 27 )

53.

However, as the Court pointed out in the judgment in Henkel, ( 28 ) an action for an injunction, unlike individual actions (whether they are brought by an individual consumer, a group of consumers or an association acting on their behalf), ( 29 ) is independent of any actual and existing commitment.

54.

It is, first, disconnected from any actual individual conflict between a professional and consumers. ( 30 ) Contrary to what Amazon EU has claimed, the applicant association is not acting in the place of the consumers which it represents, but is acting in the collective interest on the basis of a power conferred by law. The action is therefore aimed at putting an end to acts affecting the legal order arising from the use of unfair terms. It is therefore abstract in nature in so far as it is not based on any specific contractual obligation. ( 31 )

55.

Secondly, an action for an injunction is preventive in nature in that it seeks to prohibit the future use of unfair terms, whether they are contained in contracts already concluded or are likely to be inserted into future contracts. ( 32 ) It is therefore independent of the existence of any commitment already made by one person to another and seeks to prohibit the use by the defendant professional of certain terms drawn up for general use in standard contracts. ( 33 )

56.

To that end, Article 2(2) of Directive 2009/22 provides that the law applicable in actions for an injunction is, ‘normally, either the law of the Member State where the infringement originated or the law of the Member State where the infringement has its effects’. It is apparent from that provision that the obligations to which this action relates arise not from a contract, but from an infringement of the law. ( 34 )

57.

I conclude from this that the terms whose prohibition is sought in an action for an injunction such as that in the present case do not, in that context, give rise to any contractual obligation within the meaning of the Rome I Regulation.

58.

On the other hand, such an action seeks to establish liability on the part of the professional on the basis of his non-contractual obligation to refrain from using unfair terms in his relations with consumers. It therefore aims to prevent damage in the form of harm to the collective interests of consumers caused by infringement of that obligation. Accordingly, it relates to a non-contractual obligation within the meaning of the Rome II Regulation, and concerns, as is clear from the judgment in Henkel, ( 35 ) a matter relating to tort, delict or quasi-delict within the meaning of the Brussels I Regulation. ( 36 )

59.

In the second place, that approach is supported by the fact that, as regards more specifically the examination of the validity of a choice of law clause, the rules on conflict of laws established by the Rome I Regulation seem to me to be suited only to individual actions.

60.

In that regard, Article 10(1) of that regulation provides that the validity of any term of a contract is determined by ‘the law which would govern it under th[at r]egulation if [that] term were valid’. Under that provision, the lawfulness of a choice of law clause must therefore be assessed in the light of the law chosen by that clause. If that provision applied to the examination of the unfairness of a choice of law clause in an action for an injunction, the professional could unilaterally decide, by inserting such a clause in general terms and conditions drafted in advance of entering into any contractual relationship, ( 37 ) the law applicable to the examination of the validity of those general terms and conditions.

61.

However, I doubt whether such a consequence was intended by the legislature. This is indicated by the wording of Article 3(5) of the Rome I Regulation, according to which ‘the existence and validity of the consent of the parties as to the choice of the applicable law’ are determined, in particular, by Article 10 of that regulation. Article 10(1) also refers to the ‘existence and validity of the contract’. In the context of an action for an injunction, which is of an abstract or preventive nature, there is no consent of the parties or contract whose existence and validity can be assessed. That observation highlights the difficulties that might arise if the Rome I Regulation were regarded as determining the law applicable to examination of the lawfulness of choice of law clauses where they are disconnected from any actual and specific commitment.

62.

In the third place, I consider that the arguments relied on by Amazon EU, the German Government and the Commission in support of the applicability of the Rome I Regulation do not cast doubt on the approach which I advocate.

63.

Those interveners claim, in particular, that the law applicable to the examination of the unfairness of those clauses should be the same in individual actions as in actions for an injunction. Otherwise, that examination might produce contradictory results depending on the type of action.

64.

I doubt whether such symmetry is necessarily required. On the contrary, the possibility that the same clauses might, where appropriate, be examined in the light of the laws of distinct legal systems in an action for an injunction and an individual action appears to me to be inherent in the divergent and complementary nature of those two types of proceedings. ( 38 )

65.

Directive 93/13 also expressly provides for the possibility that the assessment of the unfairness of contractual terms may have a different result depending on the type of action giving rise to it. According to Article 5 of that directive, where terms are alleged to be unfair, the rules of interpretation applicable in individual actions are different from those applicable in actions for an injunction. ( 39 )

66.

In the light of all the foregoing, I consider that the law applicable to the examination of the unfairness of the terms which the action for an injunction brought under Directive 2009/22 seeks to have prohibited must be determined by applying the rules on conflict of laws laid down in the Rome II Regulation.

67.

Secondly, in order to answer the second question referred, the provisions of that regulation governing such determination must be identified.

68.

Article 4(1) of the Rome II Regulation provides, as a general rule, for the application to non-contractual obligations arising out of a tort/delict of the law of the ‘country in which the damage occurs’ (lex loci damni).

69.

Article 6(1) of that regulation provides, as a special rule relating to non-contractual obligations arising out of an ‘act of unfair competition’, for application of the law of the ‘country where competitive relations or the collective interests of consumers are, or are likely to be, affected’.

70.

As is clear from recital 21 of that regulation, Article 6(1) constitutes a lex specialis which, far from being an exception to Article 4(1) of that regulation, clarifies its scope. In other words, the rule laid down in Article 6(1) of the Rome II Regulation gives expression, in the particular area of unfair competition, to the lex loci damni principle.

71.

In my view, Article 6(1) of the Rome II Regulation applies to non-contractual obligations which are likely to arise from an infringement of Directive 93/13 which is to the detriment of the collective interests of consumers.

72.

That interpretation, which appears to follow from the very wording of that provision, is confirmed by the travaux préparatoires relating to it. In that regard, the statement of reasons for the Proposal for the Rome II Regulation explicitly mentions, as matters falling within the scope of that special rule, collective actions for an injunction against the use of unfair terms in consumer contracts. ( 40 )

73.

I therefore consider that the scope of Article 6(1) of the Rome II Regulation extends to any act which is likely to alter relations between the participants on a market, whether between competitors or in respect of consumers collectively. ( 41 ) According to that autonomous definition of ‘unfair competition’ within the meaning of that provision, that concept covers the use of unfair terms inserted into general terms and conditions, in so far as this is likely to affect the collective interests of consumers as a category and, therefore, to influence the conditions of competition on the market.

74.

Under Article 6(1) of the Rome II Regulation, the action for an injunction seeking a prohibition on the use of unfair terms in contracts concluded with consumers resident in Austria is, in my view, governed by Austrian law. The collective interests which the action seeks to protect are affected, or are likely to be affected, in the country of residence of those consumers.

75.

The rule of secondary connection laid down in Article 4(3) of the Rome II Regulation does not cast doubt on the conclusion drawn in the preceding paragraph. That provision provides for an exception to the general rule of the lex loci damni where there is a ‘manifestly closer connection’ with another Member State. Under that provision, such a connection might, in particular, arise from a ‘pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict’.

76.

That exception cannot, in my view, apply to situations falling within the scope of a special rule such as that laid down in Article 6(1) of the Rome II Regulation.

77.

In that regard, it is clear from the travaux préparatoires relating to that regulation that the Commission considered that the rules of secondary connection corresponding to those laid down in Article 4(2) and (3) of that regulation ‘are not adapted to this matter [of unfair competition] in general’. ( 42 ) I share that point of view, since Article 6(1) of that regulation aims to protect collective interests — going beyond the context of relations between the parties to the dispute — by providing for a rule specifically adapted to that purpose. However, that objective would be ill-served if that rule were allowed to be frustrated on the basis of personal connecting factors between those parties. ( 43 )

78.

Moreover, the VKI and Amazon EU are not, in the present case, bound by any pre-existing contract (the general terms and conditions being intended only for individual consumers). I also note that, as the action for an injunction is independent of any actual individual dispute between professional and consumers, it can be brought even when the terms whose prohibition is sought have not been used in specific contracts. ( 44 ) In those circumstances, the fact that the terms and conditions provide for the applicability of Luxembourg law does not, in the absence of any pre-existing relationship either between the parties to the dispute or between the professional and certain specific consumers, give rise to a manifestly closer connection with Luxembourg in such an action.

79.

It seems to me that Article 12 of the Rome II Regulation, which the Commission argues should be applied in the alternative, is also irrelevant in that context. This provision, which determines the law applicable to non-contractual obligations arising out of pre-contractual dealings (culpa in contrahendo), assumes, in my view, the existence of actual and specific pre-contractual dealings. However, in view of the abstract and collective nature of the action for an injunction, there are no such dealings. In any event, the action seeks to prohibit, not any culpa in contrahendo, but the use of the contractual terms themselves.

80.

Accordingly, if the approach which I propose were followed in this case, the assessment of the unfairness of the terms which are the subject matter of the action for an injunction would, under Article 6(1) of the Rome II Regulation, be governed by Austrian law — including, in particular, the Austrian legislation transposing Directive 93/13 (namely the KSchG).

81.

On the other hand, in the context of individual actions, that question would be governed, under Article 6(2) of the Rome I Regulation, ( 45 ) by the law chosen by the parties pursuant to clause 12 of the general terms and conditions at issue (assuming that that clause is valid), ( 46 ) namely Luxembourg law. However, that law would apply without prejudice to the protection afforded to consumers by the mandatory provisions of the law which would have been applicable in the absence of choice. ( 47 ) According to Article 6(1) of that regulation, this would be the law of the consumer’s country of habitual residence (in this case, Austrian law).

82.

By the first part of its fourth question, the referring court asks whether a choice of law clause designating the law of the Member State where the seller or supplier is established, such as clause 12 of Amazon EU’s general terms and conditions, is unfair within the meaning of Directive 93/13.

83.

According to Article 3(1) of that directive, a contractual term which has not been individually negotiated is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations, to the detriment of the consumer.

84.

Under Article 3(2) of that directive, a term is always to be regarded as not individually negotiated where it has been drafted in advance by the seller or supplier and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. There is hardly any doubt in my view that that situation covers general terms and conditions such as those at issue in the main proceedings.

85.

Under Article 4(1) of that directive, a term can be regarded as unfair only after a case-by-case examination of all the relevant circumstances, including the nature of the goods or services for which the contract was concluded.

86.

Moreover, Article 5 of that directive provides that, where the terms offered to the consumer are in writing, they must be drafted ‘in plain, intelligible language’. ( 48 )

87.

In accordance with Article 3(3) of Directive 93/13 in conjunction with point 1(q) of Annex I to the directive, terms ‘excluding or hindering the consumer’s right to take legal action’ may, in particular, be regarded as unfair. ( 49 )

88.

It is for the national court to determine whether, having regard to the particular circumstances of the case, a term meets the requirements of good faith, balance and transparency laid down in the above-mentioned provisions. ( 50 ) Nonetheless, the Court has jurisdiction to identify from the provisions of Directive 93/13 the criteria which the national court may or must apply when making such an assessment. ( 51 )

89.

At the outset, the premiss on which the VKI’s argument appears to be based must be rejected, namely that clause 12 of the general terms and conditions at issue stipulates that the contract is exclusively subject to Luxembourg law, without consumers being able to benefit from the protection afforded to them by the mandatory provisions of the law of their State of residence. In my view, such an interpretation is not apparent from the wording of that clause. It cannot, merely because it does not expressly refer to the protection conferred on consumers by Article 6(2) of the Rome I Regulation, deprive them of that protection. This is so because that protection follows directly from that legislative provision limiting the freedom of contract of the parties. Consumers can therefore rely on it without it also having to be reflected in the form of a contractual obligation. ( 52 )

90.

Having clarified the scope of that clause, it is necessary to determine whether the disadvantages which it might cause for consumers reach the threshold of a significant imbalance in the parties’ rights and obligations within the meaning of Article 3(1) of Directive 93/13.

91.

In my view, a choice of law clause designating the law of the Member State where the seller or supplier is established cannot be regarded as unfair merely because, by definition, it is liable, first, to make it more difficult for an average consumer residing in another Member State to bring an action and, secondly, to be more favourable to the professional’s defence.

92.

It is true, as the VKI and the United Kingdom Government have argued, that similar considerations led the Court to consider, in the judgment in Océano Grupo Editorial and Salvat Editores, ( 53 ) that a term conferring exclusive jurisdiction on the courts of the country of the seller or supplier’s principal place of business fell within point 1(q) of the annex to that directive. However, I am of the view that that conclusion cannot be applied by analogy to a choice of law clause such as that at issue in the main proceedings, which has different effects from those of a term conferring jurisdiction.

93.

In principle, EU legislation expressly authorises choice of law clauses, even where they have not been individually negotiated. Article 6(2) of the Rome I Regulation establishes (subject to the reservation mentioned in the second sentence of that provision) the possibility for the parties of agreeing the law applicable to a consumer contract. That provision does not draw a distinction according to whether or not the clause has been individually negotiated. Regarding clauses which have not been individually negotiated, ( 54 ) the fifth and sixth recitals of Directive 93/13 indicate, moreover, that the legislature specifically envisaged the possibility of concluding contracts governed by the law of a Member State other than that in which the consumer is resident, while recognising the need to protect the consumer against the use of unfair terms in such a scenario.

94.

In those circumstances, I consider that a choice of law clause designating the law of the Member State where the seller or supplier is established is unfair only in so far as it displays certain specific characteristics, inherent its wording or context, which cause a significant imbalance between the parties’ rights and obligations.

95.

In particular, the unfairness of such a term may result from wording which does not meet the requirement of being drafted in plain and intelligible language, as laid down in Article 5 of Directive 93/13. As is clear from the case-law, in the light of the consumer’s weak position vis-à-vis the seller or supplier, as regards in particular his level of knowledge, that requirement must be interpreted broadly. ( 55 ) The Court has also stated that it is essential that the consumer be informed of the consequences of contractual terms. ( 56 ) In view of those considerations, that requirement implies, in my view, that the term should not be such as to mislead the average consumer as to the substance of his rights.

96.

In the present case, the term at issue must, in particular, be sufficiently transparent regarding the possibility for the consumer of relying on the mandatory provisions of the law of his State of residence, guaranteed by Article 6(2) of the Rome I Regulation. The degree of transparency required for that purpose depends on all the relevant circumstances of the case. ( 57 )

97.

I note in that regard that consumer contracts often concern modest amounts, ( 58 ) in particular in the context of electronic commerce. In those circumstances, the average consumer has little incentive to bring a court action against the professional. ( 59 ) A choice of law clause designating the law of a Member State other than that in which the consumer is resident is likely to further reduce the incentive to bring such an action.

98.

Moreover, it seems to me likely that the average consumer is not sufficiently informed of the protection afforded to him by Article 6(2) of the Rome I Regulation. He will therefore rely, in principle, on the wording of the choice of law clause alone. Yet the possibility for the consumer of relying on the protection conferred on him by the mandatory laws of his State of residence takes on considerable practical importance.

99.

First, those laws include a significant number of provisions on which the consumer can rely, including national provisions transposing the European Union acquis in the area of consumer protection, in particular concerning electronic commerce. ( 60 ) As is clear from the directives governing that field, those provisions are in principle mandatory. ( 61 )

100.

Next, the laws of the State in which the consumer is resident are generally more familiar and accessible to him (if only for linguistic reasons) and therefore easier to rely on than those of the Member State where the seller or supplier is established. I would add, in that connection, that Article 6(2) of the Rome I Regulation does not, in my view, make the consumer’s enjoyment of ‘the protection afforded to him by provisions that cannot be derogated from by agreement’ by virtue of the law of his country of residence subject to the condition that those provisions provide, substantively, for a higher level of protection than the protection that he would enjoy under the legislation of the chosen legal order. ( 62 ) In my view, Article 6(2) of that regulation therefore enables the consumer to rely entirely on the mandatory provisions of the law of his State of residence, whether or not they are more favourable than the provisions of the chosen law from the point of view of their substance. ( 63 )

101.

Finally, the importance of the possibility for the consumer of relying on such protection is further increased by the fact that certain EU consumer protection directives provide for only a minimum level of harmonisation. ( 64 ) Other directives allow the Member States to maintain or adopt national rules on certain aspects falling within their scope. ( 65 ) The Member State in which the consumer is resident may therefore confer on him broader protection than that provided for in those directives and the laws transposing them in the chosen legal order.

102.

In those circumstances, I consider, like the VKI and the United Kingdom Government, that the failure to refer, in clause 12, to the possibility for the consumer of relying on the mandatory laws of his country of residence is liable to give the consumer the false impression that only the law chosen under that clause is applicable to the contract. If such a consumer is misled in that manner, he may be deterred from bringing an action on the ground, principally, of lack of familiarity with the consumer protection laws of the chosen legal order. ( 66 )

103.

Consequently, that clause seems to me to be capable of creating a significant imbalance between the parties’ rights and obligations, and therefore to be unfair within the meaning of Article 3(1) of Directive 93/13, which it will be for the referring court to ascertain.

104.

Amazon EU has objected that a finding that such a clause is unfair would impose on operators the excessively burdensome obligation of listing all the relevant mandatory laws of the consumer’s State of residence so as to make it possible to choose the law applicable to the contract. In order to dispel any confusion in that regard, I would point out that that finding would not result in such an obligation. It would merely require them to choose a wording clearly indicating in the choice of law clause that it operates without prejudice to the protection afforded to consumers by the mandatory laws of their State of residence, without it being necessarily required to list those laws.

105.

By the second part of its fourth question, the referring court asks the Court to rule on the law applicable to the processing of personal data by an e-commerce undertaking which directs its activities to a Member State other than that in which it is established. The referring court asks whether, in the present case, such processing is governed only by the law of the Member State in which Amazon EU is established (which is Luxembourg) or also by Austrian law, as that company targets consumers resident in Austria via its German-language website.

106.

This question is referred to the Court in so far as the VKI has claimed that clauses 6, 9 and 11 of Amazon EU’s general terms and conditions are contrary to the DSG, which transposes Directive 95/46 into Austrian law. ( 67 ) In the light of that context, the referring court in fact harbours doubts regarding the national law transposing that directive in the light of which the lawfulness of those clauses must be examined in an action for an injunction.

107.

Consideration of the wording and context of that question together also shows that the referring court assumes that the law applicable to such an examination must be identical to the law applicable to any processing of data carried out by Amazon EU under those clauses.

108.

None of the interveners has disputed that premiss. I also support it. Article 4 of Directive 95/46 lays down specific rules for identifying the national law transposing it which governs a particular case of data processing. ( 68 ) Those special rules also designate, in my view, the law applicable to the examination of the lawfulness of the terms providing for such processing. ( 69 )

109.

According to the travaux préparatoires for Directive 95/46, Article 4 of the directive seeks, as a whole, to prevent the same data processing operation from being governed by the laws of more than one Member State. ( 70 ) That directive is founded on the idea that the harmonisation which it puts in place affords an equivalent level of data protection throughout the EU. It therefore imposes on Member States an obligation of mutual trust precluding the same processing operation from being made subject to various national laws and thereby hindering the movement of the data concerned. ( 71 )

110.

That provision therefore performs a dual role: ( 72 )

111.

That said, it is clear from Article 4(1)(a) of Directive 95/46 that the applicability of a transposition law of a Member State to the processing of personal data requires two conditions to be met:

112.

The second condition proves, in practice, to be decisive where an undertaking has establishments in more than one Member State. ( 75 ) It then makes it possible to determine which of the laws of those Member States governs the processing operation concerned: only the law of the Member State of the establishment in the context of whose activities that operation is carried out will be applied. ( 76 )

113.

It is not disputed in this case that clauses 6, 9 and 11 of the Amazon EU’s general terms and conditions provide for ‘processing of personal data’ falling within the scope of Directive 95/46. ( 77 ) It must therefore be assessed whether such processing is intended to be carried out ‘in the context of the activities’ of an ‘establishment’ of that company in Austria, in Luxembourg or (although that possibility has not been raised either by the referring court or by the interveners) in Germany.

114.

With regard to the existence of an Amazon EU establishment in Austria, I would point out from the outset that the concept of ‘establishment’, within the meaning of Article 4(1)(a) of Directive 95/46, has an autonomous meaning. ( 78 )

115.

According to recital 19 of that directive, that concept implies ‘the effective and real exercise of activity through stable arrangements’. That recital states that ‘the legal form of such an establishment … is not the determining factor in this respect’. It also states that, when a single controller is established on the territory of several Member States, he must ensure that each of the establishments fulfils the obligations imposed in the national law applicable to its activities.

116.

In the light of those provisions, the Court adopted in the judgment in Weltimmo ( 79 ) a broader interpretation of the concept of ‘establishment’, considering that it extended to ‘any real and effective activity — even a minimal one — exercised through stable arrangements’, regardless of the legal form adopted. It stated in that judgment that ‘in order to establish whether a company, the data controller, has an establishment, within the meaning of that directive, in a Member State other than the Member State or third country where it is registered, both the degree of stability of the arrangements and the effective exercise of activities in that other Member State must be interpreted’. ( 80 )

117.

The Court then entrusted to the national court the task of determining, having regard to those principles, whether the company in question had an establishment in Hungary in the light of a number of criteria. First, the Court asked the national court to take into account that the activity concerned consisted of the running of property dealing websites concerning properties situated in Hungary, which were written in Hungarian — so that the running of those websites was mainly, if not entirely, directed towards that Member State. Secondly, the Court pointed out that there was present in Hungary a representative responsible for recovering debts resulting from that activity and for representing that company in proceedings relating to the data processing concerned, as well as the opening of a bank account and the use of a letter box in Hungary. ( 81 ) I would also note that the Court’s statement of those criteria implies that an establishment in Hungary could not exist merely because those websites were accessible there.

118.

It is for the referring court to determine, in the light of that case-law and taking into account all the relevant circumstances of the present case, whether Amazon EU has an establishment in Austria. The Court may, however, provide the referring court with some guidance to help it make its assessment, such as that proposed below.

119.

First, the fact that Amazon EU is registered and has its principal place of business in Luxembourg and does not have a branch or subsidiary in Austria does not preclude it from having an establishment there within the meaning of Directive 95/46.

120.

Next, it is clear from the order for reference that Amazon EU enters into relations and concludes contracts with Austrian consumers via its German-language website. In my view, in particular in the light of the case-law set out in points 116 and 117 of this Opinion, that factor is not in itself sufficient ground for the existence of an establishment of Amazon EU in Austria in the absence of other factors capable of establishing that that company has ‘stable arrangements’ there.

121.

Finally, I do not rule out the possibility that, as the VKI has claimed, any after-sales service, such as a complaints service, intended for customers resident in Austria might constitute an establishment in Austria. However, such a finding cannot in itself justify the applicability of the DSG.

122.

Even assuming the existence of such a service and its classification as an establishment, it would still need to be established that the processing of data provided for in the terms at issue is intended to form part of the activities of the service within the meaning of the second condition laid down in Article 4(1)(a) of Directive 95/46.

123.

The Court has had occasion to verify fulfilment of that condition in its judgment in Google Spain and Google. ( 82 ) It adopted a broad interpretation, holding in essence that it was satisfied because the activities of the operator of a search engine established in the United States (for the purposes of which the processing of data at issue was operated) and the activities of promoting and supplying advertising space carried out by its establishment in Spain were ‘inextricably linked’. ( 83 )

124.

I doubt, however, whether that approach can be applied to the present case. Apart from other factual differences, that case differs from the present case in that it was a matter of assessing, in that case, whether the processing of data concerned was covered by the framework for protection established by Directive 95/46 (through the Spanish law transposing it). It was, in my view, from that perspective that the Court interpreted broadly the second condition laid down in Article 4(1)(a) of that directive in order to prevent such processing from escaping the obligations and guarantees provided for in the directive. ( 84 )

125.

In the present case, on the other hand, it must be determined which, among several national laws transposing the directive, is intended to govern the data processing operations provided for in the terms at issue. This means identifying the establishment in the context of whose activities those operations are most directly involved. However, it appears to me at first sight, subject to verification by the referring court, that the operations provided for in clauses 6, 9 and 11 of Amazon EU’s general terms and conditions are not directly linked to any after-sales service provided by Amazon EU in Austria.

126.

Assuming that the referring court considers that Amazon EU does not have an establishment in Austria or that, in any event, the processing operations provided for in those clauses do not form part of the context of the activities of such an establishment, it is still necessary to examine, in the light of the two conditions laid down in Article 4(1)(a) of Directive 95/46, whether those operations are governed by the law of another Member State and, if so, to identify that law.

127.

Neither the referring court nor the interveners doubt, in that regard, that Amazon EU has an establishment in Luxembourg. However, it might be asked whether the processing operations provided for in those clauses are more closely connected to the activities of an establishment of that company in Germany. The company establishes links with Austrian consumers via the website with the German domain name www.amazon.de. Clause 6 of Amazon EU’s general terms and conditions also states that ‘Amazon.de’ will check, evaluate and exchange — that is to say, process — the personal data of customers. ( 85 ) In the light of such evidence, the applicability of German law might be envisaged. However, the order for reference does not contain any other factual evidence relating to Amazon EU’s activities in Germany.

128.

In those circumstances, it will be for the referring court to ascertain, also in the light of the case-law set out in points 116 and 117 of this Opinion, whether Amazon EU has an establishment in Germany within the meaning of Article 4(1)(a) of Directive 95/46. If that question is answered in the affirmative, that court will have to examine whether the processing operations provided for in the clauses concerned are intended to be carried out in the context of the activities of that establishment or those of Amazon EU’s establishment in Luxembourg.

129.

In the light of all the foregoing, I propose that the Court answer the questions referred for a preliminary ruling as follows: