Brussels I and public notice under national law

The case of G/Cornelius de Visser (C-292/10) resembles the Lindner case (C-327/10), on which we reported earlier. The case involves numerous issues, some of which will be dealt with in this post. The factual background of the case simply cannot pass unmentioned. A German girl, Ms G, approached the owner (Mr de Visser) of the domain name www.****.de (I call upon the reader’s imagination here) to show her interest in having photographs taken of herself (their intended use being ‘für eine Party’). The photographs were duly made in Germany and Ms G agreed that they would be published. However, her consent was strictly limited to the pictures being used ‘for a party’, and did not include widespread distribution online.

Taunted by co-workers as she was (according to the judgment she was ‘shown the photographs (…) by work colleagues’), she initiated proceedings in Germany against De Visser. Mr de Visser was registered as owner of the domain with an address in Terneuzen and a postal address in Venlo (both in the Netherlands). It had not, however, been possible to effect service at those addresses in the Netherlands, since both letters were returned marked ‘Unknown at this address’. The Consulate of the Netherlands in Munich stated, on request, that Mr de Visser was not listed in any population register in the Netherlands. To sum up, as was the case in Lindner, the defendant was nowhere to be found. Since both the Hague Convention on the service of documents 1965 and the EU Service Regulation are inapplicable in the case of a defendant with unknown address, the German judge resorted to public notice of the document under German procedural law. This was done by affixing a notice of that service to the bulletin board of the Landgericht Regensburg from 11 February to 15 March 2010. Could this be deemed in conformity with Article 6 ECHR and Article 47 Charter of Fundamental Rights of the EU? The Court held:

56      It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the main proceedings, of ‘service by public notice’ constitutes a restriction of the defendant’s rights of defence. That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, in the absence of such proceedings, that right would be meaningless (see Hypoteční banka, paragraph 53).

57      In contrast to the situation of the defendant, who, when deprived of the opportunity to defend himself effectively, will have the opportunity to ensure respect for the rights of the defence by opposing, in accordance with Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him, the applicant runs the risk of being deprived of all possibility of recourse (see Hypoteční banka, paragraph 54).

58      It is apparent, furthermore, from the case-law of the European Court of Human Rights that the right to a fair trial, guaranteed by Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which corresponds to the second paragraph of Article 47 of the Charter, does not preclude ‘summons by public notice’, provided that the rights of those concerned are properly protected (see Judgment of the European Court of Human Rights in Nunes Dias v Portugal [2003], Reports of Judgments and Decisions 2003-VI).

59      The answer to the first question and the first part of the third question is therefore that European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.

The German court also asked questions regarding jurisdiction under the Brussels I Regulation (Regulation 44/2001/EC) in cases of online infringement of personality rights, and Article 3(1) and (2) of Directive 2000/31/EC. These questions were already answered by the Court in the eDate-case, on which we also reported earlier.

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