§11.2 Application to third country traders

The application of the CRD to non-EU traders is subject to Regulation (EC) No 864/2007 of the European Parliament and of the Council (158) on the law applicable to non-contractual obligations (Rome II) and Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I). Rome I and Rome II are both applicable in civil or commercial disputes. The CRD provides both for non-contractual obligations (in particular, pre-contractual information requirements, prohibition of ‘pre-ticked’ boxes etc.) and contractual obligations (in particular, the right to withdrawal, rules on delivery of goods and contract confirmation). For non-contractual obligations, in particular the pre-contractual information requirements under the CRD, the applicable law as determined under the Rome II Regulation would be the law of the contract that would apply to it had the contract been concluded (159). Therefore, the same set of criteria is used to determine the applicable law for non-contractual obligations as for contractual obligations in civil and commercial matters under the Rome I Regulation. This means that the applicable law for both contractual and non-contractual obligations would be identical unless agreed otherwise between the parties to the contract. The choice of law agreements are however subject to limitations as set in the Rome I and Rome II Regulations. According to Article 6(1)(b) of the Rome I Regulation, where a consumer concludes a contract with a trader in another country who, by any means, directs his commercial activities to the consumer’s country of residence, the law of the country where the consumer has his or her habitual residence generally governs the contract. The concept of ‘directing’ one’s commercial or professional activities to the country of the consumer is further explained in section 3.1.8 of this guidance. Pursuant to Article 6(2) of the Rome I Regulation, if the contractual parties choose a different law to apply, the choice cannot deprive the consumer of the protection afforded by the legal provisions of the country of consumer’s habitual residence that parties cannot derogate from in their contract. The rights and obligations provided in the CRD constitute such ‘mandatory provisions’ as Article 25 stipulates that consumers cannot waive the rights conferred on them by the national measures transposing this Directive. Accordingly, whenever a third country trader targets consumers in one or more EU Member State(s) that trader must comply with the CRD requirements, in particular the pre-contractual information requirements and the right to withdraw from a contract.

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