By Justin Jütte
In Bolagsupplysningen OÜ, Ingrid Ilsjan v Svensk Handel AB (BOÜ/Ilsjan) the Court of Justice of the European Union (ECJ) ruled that a legal person can bring an action for damages and request the correction and removal of allegedly defamatory information before the courts of the Member State where that person has its centre of interests. The ECJ, however, also ruled that an action for removal of certain incorrect information and removal of comments by way of an injunction can, cannot be initiated in every Member State where the website was accessible. With this ruling the Court implicitly confirms its jurisprudence on the special rule of jurisdiction under Article 7(2) of Regulation No 1215/2012 (Brussels I Regulation (recast)) for online infringements of personality rights. Unfortunately, it did not address the changes AG Bobek suggested in this respect in his Opinion (discussed here). Continue reading
By Bernd Justin Jütte
In his opinion in Case C-194/16 Advocate General (AG) Bobek suggests limiting the jurisdictional competence for infringements of personality rights of legal and natural persons on the Internet to two venues: the place of the domicile of the publisher and the centre of interest of the company whose personality rights have been infringed. If the Court were to follow the AG, this would mark a departure from the rule established in eDate/Martinez, which gives the injured party also the choice to litigate in all 28 Member States of the EU. If the Court were to adopt this position, parallel litigation in multiple fora would be precluded and judicial competence would be limited to such courts that have a true link to the dispute. Continue reading
Conference “International Litigation in Europe: the Brussels I Recast as a panacea?”
Verona University, 28-29 November 2014. Deadline for registration: 20 November 2014.
Workshop “L’ordre juridique de l’Union européenne sous l’angle de son action extérieure/The Legal Order of the European Union from the Perspective of Its External Action”
University of Luxembourg, 24 November 2014. (Free) registration required.
The Treaty of Lisbon and EU Criminal Law – Five Years On
University of Innsbruck, 1 December 2014. (Free) registration required.
Third REALaw Research Forum “Judicial Coherence in the European Union”
University of Utrecht, 30 January 2015. Deadline for abstract submission: 1 December 2014.
13th Jean Monnet Seminar “EU Law and Risk Regulation”
Inter-University Center, Dubrovnik, 19-25 April 2015. Deadline for paper proposal submissions: 15 January 2015.
In its Solvay/Honeywell judgment (C-616/10) of 12 July, the CJEU decided on several important issues regarding the Brussels I Regulation. Those active in international commercial litigation, particularly patent infringement proceedings, will be interested in this case. The questions in Solvay concern the application of several ‘Brussels I’ rules of jurisdiction to cross-border patent infringement proceedings. The CJEU gets the chance to clarify some questions-left-open related to the 2006 cases GAT v. LuK (C-4/03 ) and Roche v. Primus (C-539/03). Unfortunately, the ruling in Solvay itself also leaves several questions unanswered. I wonder especially whether it was necessary for the CJEU to ‘reformulate’ the questions put before it. I’m afraid it looks like the ‘reformulation’ has obscured the view of what is really going on here.
Another episode in the line of cases before the Court concerning Google AdWords. The Intellectual Property battle over the use of trademarks as keywords for the purpose of triggering advertisements on Google’s search result pages can be seen in the cases (most notably) C-236-238/08 Google/Louis Vuitton, C-558/08 Portakabin, C-324/09 L’Oréal/eBay and C-323/09 Interflora. The recently handed down judgment in the case Wintersteiger (C-523/10) however, concerns the interpretation of the notion ‘place where the harmful event occurred or may occur’ in Article 5(3) Brussels I Regulation in cases of alleged Trademark infringement through registration of a Google AdWord.
An Austrian company, Wintersteiger, initiated proceedings in Austria for infringement of its Austrian Trademark ‘Wintersteiger’ by a German company, Products 4U. Products 4U had reserved the Trademark ‘Wintersteiger’ as Google Adword for Google’s German top-level domain (www.google.de). Wintersteiger argued that the Austrian judge could assume jurisdiction under Article 5(3) since the website google.de is also accessible in Austria. On appeal, the Austrian Oberster Gerichtshof (OGH) asked the Court which criteria are to be used to determine jurisdiction under Article 5(3) to hear an action relating to an alleged infringement of a trademark through the use of a Google AdWord on the website operating under a top-level domain different from that of the Member State where the trademark is registered…
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: Continue reading
Section 4 of the Brussels I Regulation (Regulation 44/2001/EC) contains special rules of jurisdiction over consumer contracts, generally designed to protect the weaker party (i.e. the consumer). According to Article 16 (2), the professional party may sue the consumer only in the courts of the Member State where the consumer is domiciled. Does this provision also apply to consumers who left their last known domicile and are simply nowhere to be found? Does the Brussels I Regulation preclude the use of provisions of national law which enable proceedings to be brought against persons of unknown address? These, essentially, were the questions referred to the Court in the case of mr Lindner (C-327/10). A Czech bank brought proceedings in the Czech republic against Lindner, a German national. It appeared Lindner had left his last known domicile in the Czech republic before the proceedings against him were brought. The Czech courts tried to track him down, to no avail. The court held:
55 – (…) in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union;
– that regulation does not preclude the application of a provision of national procedural law of a Member State which, with a view to avoiding situations of denial of justice, enables proceedings to be brought against, and in the absence of, a person whose domicile is unknown, if the court seised of the matter is satisfied, before giving a ruling in those proceedings, that all investigations required by the principles of diligence and good faith have been undertaken with a view to tracing the defendant.
Last October, the grand chamber of the Court ruled in the joined cases of eDate and Martinez (C-509/09 and C-161/10) on the interpretation of Article 5(3) of the Brussels I Regulation (Regulation 44/2001/EC) in cases of alleged infringement of personality rights by means of content placed on an internet website. Article 5(3) grants jurisdiction to the court of the place where the harmful event occurred or may occur.
In earlier case law, Fiona Shevill, the Court had held that in case of defamation by means of a newspaper article distributed in several Member States, Article 5(3) must be interpreted as giving the victim a choice between fora. Firstly, the victim may bring the action before the courts of the Member State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation. Secondly and alternatively, the victim may bring the action before the courts of each Member State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, and which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (paragraph 33 of Shevill). Could these criteria be applied in cases where the defamatory content was published on the internet?