In the effort to outline a uniform scenario on electronic commerce and to flatten differences between national rules governing jurisdiction in civil and commercial matters, the European Union is endeavouring to issue a remarkable number of legislative proposals. With this regard the Commission has lately proposed a draft Council Regulation (Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters COM(1999) 348, published on July 14, 1999) aimed to replace and update the Brussels Convention of 1968 and the Protocol to it, with a view to take account, amongst others, of new forms of commerce which did not exist in 1968. Such an update is deemed necessary given the increasing use of means of distance communication in current negotiations; the transborder development of electronic commerce; and the pressing Council's concern to protect the consumer, as the weaker party to the contract. The draft of the Council Regulation in question has already given grounds for debates amongst the lobbies of consumers on one side and e-commerce traders on the other, above all for the industry's anxieties to develop electronic commerce and complications and restraints which may arise out of the adoption of the Council Regulation for e-traders and owners of virtual shops. The main topic of discussion derives from the full adoption of the country of destination rule, set forth in Article 15 of the draft, as to the establishment of the jurisdiction on disputes arising out of business to consumer (B2C) contracts.

Current legal scenario

The current legal scenario as to jurisdiction in business to consumer contracts is provided for by Article 13 and subsequent Articles of the Brussels Convention of 1968. By virtue of such provisions, the consumer may choose to bring proceedings against the other party to the contract in the country of his own domicile or alternatively in the counterparty's country if the contract entered into is a sale of goods on instalment credit terms (Article 13.1) or a contract for loans repayable by instalments and similar credit arrangements to finance the sale of goods (Article 13.2). With reference to any other contract for the supply of goods or services, a consumer is entitled to bring an action in the country of his own domicile, upon condition that the conclusion of the contract was preceded by a specific invitation addressed to the consumer or by advertising carried out in the consumer's domicile country and provided that the consumer took in that state the steps necessary for the conclusion of the contract itself (Article 13.3).

Needless to say that the rules laid down by the Brussels Convention are not always straightforwardly applicable with regard to e-commerce and contracts concluded on an internet environment. How to establish, in fact, whether the promotion and the offer of goods or services via an interactive website are carried out in the consumer's domicile country? Is it sufficient that a website is accessible by a consumer from his own country? Or is it necessary for there to be other requirements? Some legal writers hold that in order to ascertain, for example, whether the activity of an e-trader through a virtual shop may be regarded as an activity directed to a particular state or to a group of states, attention should be paid to the language used in the website, the currency used to list the prices, the shipping charge for orders placed from a particular country or any other element from which it could be inferred that the website was addressed to that particular country. Quid iuris in case of lack of certain clues? By the same token, doubts may arise as to determination of the place where the consumer has carried out the steps leading to the conclusion of a contract in an internet environment. It is not yet of clear understanding to establish, for example, whether an order of goods placed on-line may be deemed as effected in the consumer's country when the provider's server is located in a different country. In view of the many ways in which all the said circumstances do not allow to firmly lead to a certain solution it is clearly the purpose of the proposal of the Council Regulation in question.

The draft of Council Regulation: the "country of destination rule"

If adopted in the current text, the Council Regulation will provide, among other things, that the courts of the E.U. Member State in which a consumer is habitually resident will have jurisdiction over E.U. based sellers and suppliers of goods and services
 regardless of the existence of all the requirements provided for by Article 13.3 of the Brussels Convention. As anticipated above, the criteria laid down in Article 13.3 of the Brussels Convention have been reframed by Article 15 of the proposed Council Regulation so as to take account of developments in marketing techniques. According to the new Regulation, the consumer is entitled to bring proceedings against the other party to a contract in his own domicile, not only with respect to "any
 other contracts for the supply of goods or a contract for the supply of services", but with regard to any kind of contract, when the transaction is concluded with a person pursuing business activities in the state of the consumer's domicile or directing such
 activities towards that state, provided the contract in question falls within the scope of such activities. The new Article on jurisdiction over consumer contracts broadens the possibility of the application of the consumer's country jurisdiction, inasmuch as it is no more required that there is either a specific invitation addressed to the consumer, or an advertising activity prior to the conclusion of the contract, or the taking by the consumer of all the steps leading to the conclusion of the contract itself in the state of his domicile. Therefore the consumer's jurisdiction applies also when placement of the order or acceptance of an offer is effected in a state other than the consumer's domicile. Such circumstance is of relevant importance considering that it is aimed to eschew the negative consequences deriving from the inaccurate wording of former Article 13(3) which did not cover the case in which the said steps are performed outside the consumer's state. In relation to e-commerce the "country of destination rule" would mean that the proprietor of an interactive website based in an E.U. Member State would be subject to the jurisdiction of any E.U. Member State where his website was accessible (i.e. potentially every Member State), and therefore, subject to the laws of every such Member State, unless it is able effectively to restrict the access of consumers located in particular countries. With this last regard it is to be considered that consumers' contracts are regulated by mandatory provisions almost in all E.U. countries which apply regardless of the governing law chosen by the parties. The owner of a virtual shop, even if he resorted to forms and terms uniform for any potential client accessing his website, will have to contend with potential litigation in every Member State. Therefore, disputes essentially identical as to "petitum" and grounds of the relevant claim, may give rise to as many judgments as there are countries involved, given the differences between national rules. It is of clear
understanding how such a situation may hamper the sound and homogeneous operation of the internal market.

Conclusions

In the light of the above it is clear that all the said provisions, even if they are easier to be applied, may hinder an e-trader from setting up a sole website addressed to the European Market regarded as a whole. The European suppliers of goods or services
 may be bound in fact to set up as many virtual shops as there are European countries, each complying with the particular legal provisions of the country to which it is addressed and specifically refraining consumers from other countries from accepting offers made therein. In principle, the aim pursued by the Commission is unobjectionable. But is that an adequate way to pursue the consumer's protection? Indeed, the draft of the Council Regulation in question, while it does not guarantee an actual better protection for the consumers, creates quite a few complications and restraints for e-traders thwarting them from their commercial plans and restraining the development of the new economy. Consumer protection may have been reached instead by, for example providing the effective use of out-of-court schemes for dispute settlement by electronic means, a solution already provided in the draft E.U. Directive on certain legal aspects of electronic commerce in the internal market (COM(1999)427 final) as to disputes between Information Society service provider and its recipients. Such settlement may constitute a far more effective way to protect consumers, assuring a simpler and more expeditious procedure.