[postscript 4 February 2014: the Cour de Cassation held on 22 January 2014, following the ECJ’s lead.]
Pro memoria: the case concerns an alleged infringement of a copyright which is protected by the Member State of the court seised (France), that court questioning its jurisdiction to hear an action to establish liability brought by the author (who lives in France) of a work against a company established in another Member State (Austria), which has in the latter State (Austria) reproduced that work on a material support which is subsequently marketed by companies (Crusoe and Elegy) established in a third Member State (the UK) through an internet site which is also accessible in the Member State of the court seised (France).
The Court of Appeal at Toulouse) held that the Tribunal de grande instance de Toulouse lacked jurisdiction on the ground that the defendant is domiciled in Austria and the place where the damage occurred cannot be situated in France, and that there was no need to examine the liability of Mediatech and Crusoe or Elegy in the absence of any allegation of collusion between them and Mediatech. The Cour de Cassation referred to the ECJ.
The ECJ concisely sets out its case-law in intellectual property rights vs personality rights infringements – I will not repeat the exercise here. It emphasises the (in my view conceptually wrong) link between applicable law and jurisdiction in the case of special jurisdictional rules. Unlike the AG, however, the court does not withhold ‘focus and target’ of the website as a criterion for jurisdiction. ‘(T)he possibility of obtaining a reproduction of the work to which the rights relied on by the defendant pertain from an internet site accessible within the jurisdiction of the court seised‘ (emphasis added) suffices. However if locus damni is the only jurisdictional ground for that Member State, that court, per the Shevill rule, only has jurisdiction to adjudicate on the damage caused in that Member State.
No doubt the IP community will chew a bit more on the judgment. The patchwork of litigation possibilities in IP infringement cases remains a challenge.