Update May 2019 the Court of Appeal reportedly has referred to the CJEU.
I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.
I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.
First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.
Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.
In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.
Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.