§1.2.5 Application of the UCTD to traders established in third countries

Whether the UCTD is applicable to a contract concluded between a consumer resident in an EU Member State and a non-EU and non-EEA trader or professional (105) is determined in principle by Regulation (EC) No 593/2008 (106) (Rome I). Article 6(1) and (2) of the Rome I Regulation provides that: 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: (a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or (b) by any means, directs such activities to that country or to several countries including that country, 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. Therefore, whenever a professional (i.e. a trader or ‘seller or supplier’) from a third country carries on an activity in a Member State or directs its activities to consumers who have their habitual place of residence in a Member State, those consumers will benefit from the protection under the UCTD and the consumer protection rules of their Member State. This applies even where the parties choose the law of the third country as the applicable law. However, Article 5 of the Rome I Regulation contains particular rules for contracts of carriage. In addition, Article 6(2) UCTD provides: Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States. This provision may grant the consumer extra protection since it applies in every case where the law of a third country is chosen but where there is a close connection with a Member State. The conditions of its application are thus broader than those of Article 6 of the Rome I Regulation. Furthermore, the Court has held (107) that, under Article 3(1) UCTD, a contract term whereby a contract concluded with a consumer is to be governed by the law of the Member State in which the seller or supplier is established is unfair if it does not unambiguously specify that consumers can still rely on the mandatory consumer protection rules of the country of their usual residence under Article 6(2) of the Rome I Regulation. Without this specification, it may mislead the consumer by giving him/her the wrong impression that only the chosen law applies to the contract. The same logic must apply where the law of a non-EU Member State is chosen by way of a contract term within the meaning of Article 3(1) UCTD (108).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07