Brussels, 28/07/2016 (Agence Europe) - The American e-commerce giant Amazon changed its general terms of sale to comply with the judgment returned on Thursday 28 July by the Court of Justice of the EU, which found that it had maintained an abusive clause in contracts for the sales of goods in the European Union.
Following the opinion of Advocate General Henrik Saugmandsgaard Oe, which was presented to the Court less than two months ago (see EUROPE 11564), Amazon could reasonably conclude that it would not come out the winner in this case (C-191/15). The company therefore did not wait for the definitive judgment of the Court and decided to come into line with the Advocate General's findings, which echoed criticisms from a consumer protection association established in Austria.
The preventative changes made by the company to its conditions for use and its general terms of sale seem to correspond to the judgment returned today by the Court, as it reached the same conclusions as the Advocate General. The clause in these conditions designating Luxembourg law as applicable law was indeed abusive, the Court confirmed, as it gave consumers the impression that the imperative rules of their own country of residence could not be invoked.
Today, the clause has been worded differently. The general terms of sale on Amazon's French website (Article 8 on applicable law) now read: “you may take legal action to assert your consumer rights, in Luxembourg or in the country of the European Union in which you are resident” (our translation). Previously, the second part of the sentence did not exist.
As regards the second question raised in this case, on the applicable law for the processing of personal data carried out by Amazon, the Court again concluded that the applicable law was that of the country in which the person or entity responsible for the data processing is established and where this processing takes place in the framework of the activities of that establishment. Although the Advocate General felt that Amazon complied with that criterion, the Court had its doubts, which must be double-checked by the national court to which the principal case was originally brought.
That court will therefore have to determine whether Amazon processes these data in the framework of the activities of an establishment located in a member state other than Luxembourg (such as Austria or Germany, as the German-language Amazon website covers Austria as well as Germany). If this is the case, then the law of that other state will apply. (Original in French by Jan Kordys)