This morning the CJEU published its long awaited decision in Pez Hejduk C‑441/13. And now a surprise: it is yet another stubborn confirmation of the Pinckney ruling [which was criticized by me here, here and here]. Why stubborn? Not because I disagree. But because no matter how many Advocate Generals would say this is a bad rule, the Court will stick to its own line. More analysis will follow soon, first some flavor of the decision.
Ms Hejduk is a professional photographer of architecture and is the creator of photographic works depicting the buildings of the Austrian architect, Georg W. Reinberg. As part of a conference organised on 16 September 2004 by EnergieAgentur, Mr Reinberg used Ms Hejduk’s photographs in order to illustrate his buildings, which he was authorised to do by Ms Hejduk. Taking the view that her copyright had been infringed by EnergieAgentur, Ms Hejduk brought an action before the Handelsgericht Wien for damages in the sum of EUR 4 050, and for authorisation to publish the judgment at the expense of the defendant. In order to justify the selection of that jurisdiction, Ms Hejduk relies on Article 5(3) of Regulation No 44/2001. EnergieAgentur raised an objection that the Handelsgericht Wien lacked international and local jurisdiction, claiming that its website is not directed at Austria and that the mere fact that a website may be accessed from Austria is insufficient to confer jurisdiction on that court.
The CJEU first [paras 23-26] examines "the place of act giving rise to the damage" (Handlungsort). It comes to the Wintersteiger-like conclusion that
25 In a case such as that in the main proceedings, the acts or omissions liable to constitute such an infringement may be localised only at the place where EnergieAgentur has its seat, since that is where the company took and carried out the decision to place photographs online on a particular website. It is undisputed that that seat is not in the Member State from which the present reference is made.
26 It follows that in circumstances such as those at issue in the main proceedings, the causal event took place at the seat of that company and therefore does not attribute jurisdiction to the court seised.
In the second step, the court looks [paras 27-37] into "the place where the damage occurred" (Erfolgsort). Here the court explicitly clears any doubts about the fact that it stands firmly behind its Pinckney ruling.
32 It is clear from the Court’s case-law that, unlike Article 15(1)(c) of Regulation No 44/2001, which was interpreted in the judgment in Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740), Article 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seised is situated (see judgment in Pinckney, EU:C:2013:635, paragraph 42).
33 Therefore, for the purposes of determining the place where the damage occurred with a view to attributing jurisdiction on the basis of Article 5(3) of Regulation No 44/2001, it is irrelevant that the website at issue in the main proceedings is not directed at the Member State in which the court seised is situated.
34 In circumstances such as those at issue in the main proceedings, it must thus be held that the occurrence of damage and/or the likelihood of its occurrence arise from the accessibility in the Member State of the referring court, via the website of EnergieAgentur, of the photographs to which the rights relied on by Ms Hejduk pertain.
35 The issue of the extent of the damage alleged by Ms Hejduk is part of the examination of the substance of the claim and is not relevant to the stage in which jurisdiction is verified.
36 However, given that the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that Member State (see, to that effect, judgment in Pinckney, EU:C:2013:635, paragraph 45).