Wednesday, April 9, 2014

CJEU Confirms Pinckney Ruling

For all the private international law & IP law enthusiast, it might of interest that in the meantime of waiting for Coty Prestige C-360/12 ruling, the CJEU issued its Hi Hotel C-387/12 ruling last week (without an advice from Advocate General). Hi Hotel partially pre-determines the outcome of Coty Prestige with the main message - the attribution of effects under Art. 5(3) Brussels I. will, despite the criticism from the Advocate General, govern our case-law on jurisdiction for the future. In a similar way, Melzer ruling is confirmed. Several points are still not clear, but it is fair to say that Hi Hotel resoundingly confirms Pinckney on attribution. Readers of this blog might know that I on several occasions, similarly as Advocate General, criticized Pinckney

I believe that by enabling to hear a "territory-limited claims" under Art. 5(3) Brussels I. against a defendant, who is not domiciled, and did not act or directly cause an effect by his acts in a state of the court, purely on the basis that that the effect was furthered by somebody else, is a dangerous approach. Despite the fact that the end result might be an empty jurisdiction, i.e. jurisdiction, where no claim can be awarded. I have recently summed up some of my arguments in a comment for IIC (see Husovec, Case Comment on Pinckney, IIC, Volume 46 - 3 Issue, not yet out, so if you are interested, just drop me an email).

From the ruling:

32      Consequently, Article 5(3) of that regulation does not allow jurisdiction to be established on the basis of the place of the causal event with respect to one of the supposed perpetrators of the damage who has not acted within the jurisdiction of the court seised (see Melzer EU:C:2013:305, paragraph 41).

33      However, in contrast to the Melzer case (EU:C:2013:305), in the present case the referring court has not limited its question to the interpretation of Article 5(3) of the regulation for the sole purpose of establishing the jurisdiction of the German courts on the basis of the causal event of the alleged damage.

34      Accordingly, it must also be examined whether, in circumstances such as those at issue in the main proceedings, where several supposed perpetrators of the alleged damage have acted in different Member States, Article 5(3) of Regulation No 44/2001 allows jurisdiction to be attributed, on the basis of the occurrence of the damage, to the courts of a Member State with respect to one of the supposed perpetrators of the damage, even though he did not act within the jurisdiction of the court seised.
This brings me only a little comfort, as the Court does not seem to anticipate prima-facie absurd assertions of such connections (attributions). To the contrary, it indicates that most likely it will not create any qualitative criteria for such an attribution, and that it will leave it completely open for the national courts. I don't think that proving the "empty jurisdiction" on the substantive law level then anyhow helps the defendant, who had to spend some money on his defense. But maybe I am missing something.

35      It should be noted that jurisdiction to hear an action in tort, delict or quasi-delict may be established in favour of the court seised of a claim for a finding of a breach of copyright, where the Member State in which that court is situated protects the rights of copyright relied on by the applicant and the alleged damage may occur within the jurisdiction of the court seised (see Pinckney EU:C:2013:635, paragraph 43).

36      In the main proceedings Mr Spoering is claiming a breach of various rights of copyright, namely the rights to reproduce, distribute and exhibit the photographs in question. It is common ground that those rights are protected in Germany in accordance with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

37      In circumstances such as those at issue in the main proceedings, it must be considered that the fact that damage may occur follows from the possibility of acquiring a reproduction of the work to which the copyright relied on by the applicant attaches in a bookshop located within the jurisdiction of the court seised. As appears from the facts referred to in paragraph 14 above, the handing over of the photographs in question to Phaidon-Verlag of Paris gave rise to the reproduction and distribution of the photographs, and thereby to the possibility that the damage alleged might occur.

38      On the other hand, in so far as the protection afforded by the Member State of the court seised applies only in that Member State, the court seised on the basis of the place where the damage occurs has jurisdiction only to determine the damage caused in the territory of that State (Pinckney EU:C:2013:635, paragraph 45).

39      The courts of other Member States in principle retain jurisdiction, in the light of Article 5(3) of Regulation No 44/2001 and the principle of territoriality, to rule on the damage to copyright caused in their respective Member States, given that they are best placed, first, to ascertain whether the rights of copyright guaranteed by the Member State concerned have in fact been infringed and, secondly, to determine the nature of the damage caused (see Pinckney EU:C:2013:635, paragraph 46).
Let's see what the Coty Prestige will bring.

No comments: