I have reviewed the AG’s opinion in Hejduk here. The AG’s Opinion was exciting for it cited, even if only in a specific (IP; more specifically copyright) context, the difficulty in identifying locus damni. This, I suggested (realistically optimistic) flagged an obvious concern with the ECJ’s ruling in Bier. However the ECJ in its judgment, issued yesterday, was not having any of this. It applied relevant precedent (all recalled in my earlier posting), did not at all entertain the AG’s concerns with the locus damni assessment, and held that in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.
Plaintiff’s difficulties were of no concern to the ECJ. No surprise perhaps given the Brussels I Regulation’s near-exclusive concern for the position of the defendant.
3 Replies to “Hejduk: Copyright infringement and jurisdiction. The ECJ entertains much less than its AG.”
it’s interesting that you come to the conclusion that the CJEU is concerned with the position of the defendant. It is my opinion that it hasn’t considered his position since Bier (maybe in Wintersteiger). 🙂
After Pinckney and Pez Hejduk the defendant can be sued in any of the 28 member states. And as we saw in Pinckney and Hi Hotel also there where the effects of third party actions occur. This has nothing to do with the original telos of the Brussels I Reg which tries to mantain procedural fairness by prefering the defendant’s domicile.
However the recent judgements of the CJEU can also hardly be considered plaintiff-friendly. By applying the mosaic approach every time it made the situation very difficult for him too.
Thank you Martin. I suppose many are looking for ways to limit the implications of Shevill. (See also Kristina Sirakova’s attempt). I would suggest the real culprit is Bier, rather than Shevill. To be continued! Geert.
I agree. The Court introduced the mosaic approach only to dodge criticism for encouraging forum shopping. The problem lies within the Bier decision which did not foresee Internet torts. I think the solution is to revise Art 5 Nr. 3. Not only by changing the numbers. 🙂 I hope this is where the academic discussion will be heading. We have 7 years (at least I think) till the next recast of Brussels I.