On the latest round in preparing for jurisdiction review: the Parliament report of September 2012

Readers of this blog will have noticed that one is getting quite excited about the impending review of the Brussels I Regulation, the Jurisdiction Regulation. I have previously reported on the impact of some of the Council’s proposals, in light of their June general approach document. Parliament has now added the ultimate input prior to the vote in First Reading in November.

Tadeusz Zwiefka MEP, the rapporteur on the review, has issued his (draft) Report which, much like the Council in its June 2012 document, regroups Parliament’s suggestions for amendment. Mr Zwiefka’s text largely speaks for itself and I shall not repeat it all here. It is clear that alignment between Parliament and Council is near complete, not all of it, I believe, very wisely so (in particular, on the arbitration exclusion and on the protected categories), as I have reported earlier when reviewing the Council’s general approach.

There is one advantage to having the Parliament’s text: it also includes all recitals (as opposed to the Council’s General Approach document which had some recitals included as footnotes, but not all). This clarifies at least one element, namely the application of the consumer title of the Regulation.

I had suggested earlier, that Council’s (and now also Parliament’s) insertion in Article 16(1) of a possible forum against companies not domiciled in the EU, for consumer’s contracts, does not trump the Council’s re-insertion of Article 4 (now as noted, 4(a)), hence the counterparty would still have to be domiciled in the EU, for the consumer contracts section to apply. Parliament’s recital 11(f) now suggests I was wrong:

‘However, in order to ensure the protection of consumers and employees, to safeguard the jurisdiction of the courts of the Member States in situations where they have exclusive jurisdiction and to respect party autonomy, certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile.’

Were this amendment to go ahead, the condition of ‘directing activities to’ the Member State’ in Article 15 JR, will gain ever more importance for the territorial scope of the Regulation.



Shell holding hauled before Dutch court for infringement of environmental law in Nigeria – All left to be decided

It has been widely reported that Shell’s top holding has been hauled before a Dutch court by a Dutch environmental NGO (Milieudefensie), seeking (with a number of Nigerian farmers) to have the mother holding being held liable for environmental pollution caused in Nigeria. Readers will be aware of Shell being in the docket once or twice these days for so-called ‘corporate social responsibility’ (CSR) issues (see here for relevant links).

The media have been somewhat wrongfooted in reporting on the issue. Establishing jurisdiction in an EU court vis-a-vis a company with seat in the EU, is not exactly rocket science. It is a simple application of the Brussels I Regulation. As readers will be aware, the Court of Justice of the EU has barred national courts from even pondering rejection of such jurisdiction (Owusu: rejection of forum non conveniens considerations).

What is interesting, is the fact that Milieudefensie and the individual applicants are also pursuing the Nigerian daughter company in The Netherlands. In an interim ruling going back to 2009, the court held that the case against the Nigerian daughter may prima facie at least be bundled with the case against the mother holding. I understand however that the bundling issue will be revisited in the proceedings which started yesterday.

Moreover, under the Rome II Regulation, the Dutch court near inevitably will have to apply the lex loci damni i.e. Nigerian law, both against mother and daughter. That not only means that (presumably stricter) EU environmental standards will be out off reach, it also leaves the question  whether under Nigerian law (indeed the same would have been the case under Dutch law), in substance the mother can actually be held liable for activities of its daughter.

Finally, were daughter Shell to be held liable, enforcement would have to be sought in Nigeria. Rejection of such enforcement by Nigerian courts is not unlikely.

One assumes that not many of the legal hesitations signaled above will be of much concern to the NGO involved: publicity for the wider CSR issue is arguably what is sought. This begs the more conceptual question whether overall sustainable development is assisted by having courts in ‘developed’ countries exercise jurisdiction and apply ‘developed’ law to cases such as these.


ps for Dutch readers, I have an op-Ed on the case, in Dutch, here.

USSC denial of certiorari in Chevron /Ecuador brings the case no closer to solution

Postscript 18 March 2014: the US distict Court of New York confirmed an earlier temporary injunction early March 2014 against enforcement in the US. /////

The United States Supreme Court has denied Chevron certiorari in the enforcement leg of the Ecuadorian ruling against the company. The official log may be found here. The Second Circuit Court of Appeal had earlier removed an initial injunction, barring enforcement of the underlying Ecuadorian ruling which granted inhabitants of the affected Amazon area damages of 18 billion USD.

The ruling goes back to Chevron’s acquisition of Texaco, and the pollution caused by Texaco operations in the area affected, in the 1980s and 90s. Many of the corporate social responsibility issues linked to private international law (on which I have work in progress together with Charlotte Luks here and where the USSC heard oral arguments in Kiobel here) are not in fact relevant to this case. Rather, the case throws light on the difficulties which may arise  in trying to enforce a judgment of a third country in a jurisdiction such as the United States. Chevron essentially argue that rule of law principles have been violated in the Ecuadorian rulings on the liability, consequently barring enforcement in the US. Denial of certiorari is quite routine (the USSC being able to cherry pick its cases) and typically signals that the Court sees no new points of law to be settled in the case. Denial has no impact on the merits of the underlying case and reasons for denial of certiorari are never given.  This latest development therefore is exactly that: the latest, however by no means the last.

FYI rule of law considerations, in particular rights of the defense, are one of the very few grounds which may lead an EU court to reject enforcement of a judgment of another EU court, under the Brussels I Regulation.


Review of Insolvency Regulation part of EC Single Market Act II Proposal

The European Commission’s second round (list of intended) of proposals to shake up the Single Market, ‘Single Market Act II’, was presented yesterday, 3 October.  The Commission intends inter alia to shake-up the Insolvency Regulation.

There is one very important limit to the Insolvency Regulation in its current form: it does not harmonise insolvency law. There are substantial differences in the general approach to insolvency proceedings: what level of protection is given to ‘weaker’ creditors, such as employees; whether and how there is State intervention in the proceedings; whether courts play a central role or leave creditors (or certain categories of creditors) in the driving seat; etc. These are not at all addressed by the Regulation.

The Commission now announces that it will table a proposal with two angles:

firstly, what one could call a procedural angle (firmly within the Conflicts area, especially in terms of recognition and enforcement), which would continue the current focus of not harmonising insolvency law (although the last element of these comes close): SIMA II on this angle:

‘We thus need to establish conditions for the EU wide recognition of national insolvency and debt-discharge schemes, which enable financially distressed enterprises to become again competitive participants in the economy. We need to ensure simple and efficient insolvency proceedings, whenever there are assets or debts in several Member States. Rules are needed for the insolvency of groups of companies that maximise their chances of survival. To this end, the  Commission will table a legislative proposal modernising the European Insolvency Regulation.’

secondly, a more substantial angle which would actually aim to create a (step-up to a) European insolvency law: SIMA II on this angle:

‘However, we need to go further. At present, there is in many Member States little tolerance for failure and current rules do not allow honest innovators to fail ‘quickly and cheaply’. We need to set up the route towards measures and incentives for Member States to take away the stigma of failure associated with insolvency and to reduce overly long debt discharge periods. We also need to consider how the efficiency of national insolvency laws can be further improved with a view to creating a level playing field for companies, entrepreneurs and private persons within the internal market. To this end, the Commission will table a Communication together with the revision of the European Insolvency Regulation.’

The Commission effectively already throws in the towel on trying to convince Member States that some kind of harmonised Insolvency laws (especally with a view to installing a ‘right to fail’) ought to be agreed: the second leg of the exercise, as the above extract indicates, will merely consist of a Communication.

The announcement of SIMA II betrays two fundamental options:

Firstly, perhaps understandably, the list of 12 priorities has been compiled on the basis of what the EC thinks is realistically passable before the end of the current Parliament mandate (spring 2014). That inevitably means that some key areas have not been included, one assumes because the EC does not think it realistic to find agreement between Commission, Council and Parliament by 2014.

Further, disappointingly, deregulation does not feature at all in SIMA II. That is most definitely a missed opportunity. There are most certainly areas where reduced rather than increased Union Regulation, in conjunction with European Court of Justice case-law on primary EU law, would do a better job at increasing the Single Market.


Bot AG on negative conflicts of jurisdiction in Gothaer

Plenty of recognition and enforcement issues to ponder in Case C-456/11 Gothaer.

Krones AG, a German company whose transport insurers are Gothaer and others, had sold a brewing installation to a Mexican undertaking. Krones engaged Samskip GmbH, the German subsidiary of Samskip Holding BV, a transport and logistics undertaking founded in Iceland and established in Rotterdam (Netherlands), to organise and perform the transport of that equipment from Belgium to Mexico under a bill of lading which contained a term conferring jurisdiction on the courts of Iceland. The consignee and Gothaer and Others brought proceedings against Samskip GmbH in the Belgian courts, alleging that the consignment had been damaged during transport.

The Antwerp Court of Appeal (the actual judgment has not been published, however I do have a copy should you be interested) declared, in the operative part of its judgment, that it had ‘no authority to hear and decide the case’ after finding, in the grounds of the judgment, that the term in the bill of lading conferring jurisdiction on the courts of Iceland was valid and that, while Gothaer and Others could sue as successors in title to Krones AG, they were bound by that term. Antwerp did not, incidentally, clarify whether it found the choice of court clause (again: away from the EU) to be covered by the Jurisdiction Regulation or not. The validity of the clause was not sub judice: only the applicability to the insurers was.

Krones AG and Gothaer and Others brought a fresh action for compensation before the German courts: on what grounds is not mentioned in the documents before the ECJ – one assumes Article 2’s general proviso for domicile of the defendant. The Landgericht Bremen (thanks go to Piotr Stenko for a copy of that judgment) stayed the proceedings and referred to the European Court of Justice, raising the question of the legal effects of the judgment given in Belgium.

Bremen’s questions (reformulated by the AG) essentially were

– whether the term ‘judgment’ within the meaning of Article 32 of Regulation No 44/2001 covers a judgment by which a court of a Member State declines jurisdiction on the ground of an agreement on jurisdiction, even though that judgment is classified as a ‘procedural judgment’ by the law of the Member State addressed.

– If the answer to the first two questions is in the affirmative, it has to be determined whether Articles 32 and 33 of Regulation No 44/2001 must be interpreted as meaning that the court before which recognition is pleaded of a judgment by which a court of an other Member State has declined jurisdiction on the basis of an agreement on jurisdiction is bound by the finding relating to the validity and scope of that agreement which appears in the grounds of the judgment.

Article 32 prima facie is a definitional article (as an aside, I have often found it poor legislative technique not to include all definitions in one of the very first articles of the Regulation but rather scattered throughout ). However given that courts of other Member States have no or very little room for manoeuvre not to recognise and enforce ‘judgments’ given in other Member States, what exactly a ‘judgment’ is, evidently is very relevant.

In Gothaer Bot AG summarises the Court’s case law into three criteria: organic, procedural (closely related to organic), and substantive. Most definitely an attractive way to appreciate Article 32 JR.

The first criterion is organic. The judgment must emanate from a court or tribunal, that is to say, a body which acted independently of the other institutions of the State and impartially.  (…) The second criterion, which cannot be separated from the first, is procedural. It requires that the rights of the defence were observed in the procedure which led up to the adoption of the judgment.(…)  The third criterion is substantive. The judgment is characterised by the exercise of a power of assessment by the judicial body from which it emanates. That criterion means that a distinction must be drawn depending on whether the authority has a decision-making role or restricts itself to a more passive function, consisting for example in receiving the intentions of the parties to the proceedings. (…)’ (at 36 ff)

Consequently, in the AG’s view, a judgment by a court in a Member State, finding that it does not have jurisdiction because of a choice of forum clause pointing away from the EU (in the case at issue: Iceland), is a ‘judgment’ within the meaning of Article 32 JR.

The AG then refers to the usual suspects to underline the consequences of that finding: the principle of mutual trust per Gasser and Turner; the strict lis alibi pendens rule; the high degree of predictability built into the Regulation. Consequently (at 53 of the Opinion) the Regulation in the AG’s view includes among judgments that are capable of being recognised judgments by which the court first seised has ruled on its jurisdiction, whether it has declared itself to have jurisdiction or, on the contrary, has declined jurisdiction.

This is clear, the AG suggests where the court declares that it has jurisdiction. However Bot AG suggests it also ought to be the case where the court declines jurisdiction. The court asked to recognise and enforce the judgment, in doing so in cases of the first court refusing recognition, in the AG’s reasoning regains its freedom to review its own jurisdiction under the Regulation. The AG in this respect refers to the need to help avoid negative conflicts: ie one where no court is happy to entertain the claim. As the AG writes at 58,  ‘A conflict of that kind could arise if the court second seised refused to acknowledge the judgment previously given and declined jurisdiction on the ground that the court first seised had jurisdiction.

However in the case at issue, of course, the ‘negativity’ of the conflict is such only between EU courts: an Icelandic court may be happy to (indeed feel itself obliged to) take the case, on the basis of the choice of court clause. I researched whether the Icelandic courts have actually done so – and failed to find a record (although that may be due to my dodgy Icelandic). It is likely though that had they actually done so, traces of that would have surfaced in the Opinion.

This is where the answer to the third question becomes relevant: is the court asked to recognise, bound by the substantial reasons of the court which issued the judgment, as to the rejection of jurisdiction? The AG acknowledges that choice of court in favour of a non-EU court is not covered by Article 23 JR – however the AG refers to a similar proviso in the Lugano Convention to justify essentially the extension of the means and motives of the JR to the facts at issue, This is where I disagree with the Opinion: Iceland may be a party to the Lugano Convention – however jurisdiction of an Icelandic court in casu was not established by virtue of the Lugano Convention. Both parties to the contract at issue were domiciled in the EU and employed the JR’s room for court of choice agreements, to agree forum in favour of an Icelandic court.

Agreements granting jurisdiction to a court outside of the EU, are not covered by Article 23. Whether the courts of an EU Member State on that occasion are entitled to decline jurisdiction in favour of the non-EU court, is unclear. In Owusu, the Court of Justice does not answer this question as it was not asked by the High Court. Léger AG does refer to the issue once or twice in his opinion in Owusu however does not really entertain it – as the question was not sub judice. However it would seem fair to say that under the Owuso approach, the ECJ almost certainly would argue that the courts of an EU Member State, where they have jurisdiction under an alternative ground in the Regulation, have to exercise that jurisdiction. The question is not properly answered by the Commission proposal for review, neither is it in my view by the AG in Gothaer. It is to be expected however that the Court given its flavour for judicial economy, will not even go as far as the AG in pondering so many issues.


Court of Justice confirms relevance of rights of defence in Trade Agency – Exequatur can be denied but only after individual review of the case

Article 34 of the Brussels I Regulation (jurisdiction in civil and commercial matters) enables a court, by way of derogation from the principles and objectives of the Regulation, to refuse to recognize a judgment given by a court of another Member State. The whole starting point of the Regulation and its antecedents was to avoid much recourse to refusal of recognition. Free movement of judgments lies at the very core of the foundations of European private international law.

Little wonder then that the Regulation leaves limited freedom for Member States authorities (including courts) who are asked to recognise and enforce another State’s judgment.

In Case C-619/10 Trade Agency, proceedings were underway between Trade Agency Ltd (‘Trade Agency’) and Seramico Investments Ltd (‘Seramico’) concerning the recognition and enforcement in Latvia  of a judgment in default delivered by the High Court of England and Wales. Saramico had filed suit against Trade Agency for payment of a sum just under 300.000 Sterling. Trade Agency entered no defence and the sum was awarded. Saremico then sought enforcement in Latvia. The Latvian court wondered whether Article 34(1)’s public policy exception, allowed it to deny ‘enforcement’ (what is meant is really ‘exequatur’) given that under the English system, an uncontested claim is summarily granted, without the judgment reviewing and confirming the legal merits of the case.

The UK had pointed out in the hearing at the Court of Justice that a judgment given in default of appearance, such as that given by the High Court in the main proceedings, cannot be obtained until, first, the applicant serves the claim form and the particulars of claim, containing a detailed description of the pleas in law and the material facts, to which the judgment itself impliedly refers, and, second, the defendant, although he has been informed of the legal proceedings instituted against him, does not appear or does not express his intention to submit a defence within the period prescribed.

The Court of Justice refused to disallow all scope for the Member State in which enforcement is sought, to refuse such enforcement in light of what seem to be serious procedural requirements under English law. However the court in which exequatur is sought, may only refuse after review of the individual merits of the case: it has to in other words review whether in the case at issue, the defendant knew of the applicant’s statement of claim and decided not to defend himself against it. It may not decide that the English system as such as contrary to public policy in the state of enforcement.

The exequatur procedure of the Brussels I Regulation will be overhauled in the current review. However it is exactly on issues of the rights of the defence, such as those raised in Trade Agency, that a number of Member States continue to insist that exequatur can never be entirely automatic, even among EU Member States.


Mühlleitner: To enjoy protection as ‘consumer’ contracts, contracts need not be concluded at a distance

The Court of Justice has followed the Opinion of the Advocate General (on which I reported here) in Mühlleitner: Article 15(1)(c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not requiring the contract between the consumer and the trader to be concluded at a distance.

Debate on the issue had been provoked by the factual circumstances of Alpenhof. The Court of Justice however stuck to both a literal (no mention of distance contracts in the relevant provision), teleological (protection of consumers) and historical (purpose of the change in the Regulation as compared with the previous text in the Convention) interpretation. The relevant Article now only requires that the trader pursue commercial or professional activities in the Member State of the consumer’s (‘consumer’ is separately defined) domicile or, by any means, directs such activities to that Member State or to several States including that Member State and, secondly, that the contract at issue falls within the scope of such activities.

In the case at issue, Ms Mühlleitner, domiciled in Austria, searched on the internet for a car of a German make which she wished to acquire for her private use. After connecting to the German search platform http://www.mobile.de, she entered the make and type of vehicle she wanted, thereby obtaining a list of vehicles corresponding to the characteristics specified. After selecting the vehicle which corresponded best to her search criteria, she was directed to an offer from the defendants, Mr A. Yusufi and Mr W. Yusufi, who operate a motor vehicle retail business via Autohaus Yusufi GbR (‘Autohaus Yusufi’), a partnership established in Hamburg (Germany).Wishing to obtain more information about the vehicle offered on the search platform, Ms Mühlleitner contacted the defendants, using the telephone number stated on the website of Autohaus Yusufi, which included an international dialling code. As the vehicle in question was no longer available, she was offered another vehicle, details of which were subsequently sent by email. Ms Mühlleitner then went to Germany and, by a contract of sale signed on 21 September 2009 in Hamburg, bought the vehicle, taking immediate delivery of it. The contract therefore was not concluded at a distance.

The judgment is a good illustration of the need to consult the EU’s preparatory works, with reference being made to input into the legislative process by Parliament, Council and Commission alike.


Court confirms limitations to the evidence Regulation in Lippens

Postscript: The Hoge Raad issued its final ruling, following the ECJ’s judgment, in June 2013. Most of Lippens’ arguments had become redundant following the ECJ’s judgment. The Hoge Raad rejected his argument that to hear him in The Netherlands would be an infringement of Article 6 ECHR’s right to fair trial.

In Case C-170/11 Lippens, the Court has today confirmed the limitations to the scope of application of the evidence Regulation, Regulation 1206/2001. The request for a preliminary ruling was referred by the Hoge Raad der Nederlanden (Supreme Court) (Netherlands) in substantive proceedings brought before a Dutch court against defendants domiciled in Belgium, the provisional hearing of whom as witnesses was requested by the applicants. The persons concerned wanted to be heard in French in their country of residence (Belgium) by means of an application to be addressed by the court hearing the proceedings to the Belgian judicial authorities under Regulation No 1206/2001. The Dutch court rejected that application, stating that the hearing should take place in the Netherlands and summoning the witnesses to appear before it under national procedural law.

The core question therefore was whether the evidence Regulation governs the obtaining of evidence in civil and commercial cases by one Member State from another exclusively and exhaustively or whether it leaves room for other means of access to such evidence.

Following the Opinion of Jääskinen AG, the Court confirmed that the evidence Regulation offers the national courts assistance, should they wish to request the co-operation of the authorities of other Member States to obtain evidence outside of their territory, but they they are not obliged to take the Regulation route should they consider their national procedural laws to suffice (or indeed offer a better alternative). In the case at issue, Lippens et al also appeared as parties in the Dutch proceedings. Dutch procedural law allows for the summoning of parties as witness. The Dutch courts therefore of course prefer the efficiency of those national proceedings given that the witnesses in such cases are already present (or represented), rather than having to take the roundabout way of the evidence Regulation.

The  ECJ moreover conceded that in its current state, the evidence Regulation with its strict conditions and delays, is likely to be less efficient than national proceedings.

A finding of the Regulation as being exhaustive in the field of cross-border obtaining of evidence in civil and commercial cases, would have been very surprising. However it is good to have the ECJ confirm it, for its interpretation of the scope of European private international law is extensive indeed.


The Council on the validity of choice of court agreements

The Council in June issued its ‘General Approach‘ on the review of the Brussels I Regulation /the Jurisdiction Regulation . The General Approach is the backbone of what will be the Council Common Position, once the European Parliament has held its ‘first reading’ (which is now scheduled for November 2012, after having been postponed twice: from January 2012 it had already been moved to June). I commented here on the arbitration exception and here on the protected categories.

In its General Approach on the review of the Brussels I Regulation, the Council of the EU proposes the following with respect to choice of court agreements:

If the parties, regardless of domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.

The Commission had proposed ‘substance’ rather than the words ‘substantive validity’. The Council also suggest inserting a recital as follows:

The question as to whether a choice of court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity should be decided in accordance with the law of that Member State. The reference to the law of the Member State of the chosen court should include the conflict of laws rules of that State.

Finally, the Council prooses to add a fifht para to Article 23 as follows:

5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.’

Both the Council and the Commission proposal address the elephant in the room: Article 23 of the Jurisdiction Regulation lists a number of requirements establishing consent to choice of court agreements, however it does not address any conditions for the validity of the underlying agreement. The majority of ECJ authority would seem to favour having the validity of the forum clause to be exclusively determined by the conditions of Article 23. I would however submit that the material validity of the forum clause under the curent version of the JR ought to be determined by the lex contractus.

The result of the discussion is unsatisfactory, as in practice it leaves it up to the Member States to decide how to address the substantive validity of choice of court agreements. This is now addressed by the Commission in its proposal for review of the JR: the proposal introduces a harmonised conflict of law rule on the substantive validity of choice of court agreements, thus ensuring a similar outcome on this matter whatever the court seized. The Council amendment aims at making the solution clearer still.

Oddly, the Council adds renvoi to the mix (see ‘The reference to the law of the Member State of the chosen court should include the conflict of laws rules of that State.’). EU private international law, for good (mostly practical) reasons typically excludes renvoi. I am not entirely sure that adding it here has any merit.

Note that in line with the Hague Convention on Choice of Court Agreements, it will no longer be necessary for at least one of the parties to be domiciled in the EU, for an agreement giving jurisdiction to a court in the EU to be covered by the JR.


‘Damage’, Brussels I and internet sales – Determining jurisdiction in copyright cases and material carriers in CJEU Pinckney.

In Case C-170/12 Pinckney, on 11 April 2012, the French Cour de Cassation referred the following question for preliminary review with the Court of Justice (Case C-170/12)

 Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters  to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,

–           the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,


–           does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?

Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?

As excellently summarised by Stephen Vousden here, the Cour de Cassation is assuming two CoJ precedents need to be distinguished from Pinckney:

Case C-324/09, L’Oréal, which concerns the territorial scope of the EU’s trademark laws and revolves around websites ‘targeting’ consumers as opposed to merely being accessible to them; and

Cases C-509/09 and C-161/10 eDate Advertising and Martinez (‘Kylie Minogue’), in which the Court added the connecting factor ‘centre of interests’ for internet infringements of personality right. As I reported here, the Court of Justice in Wintersteiger confirmed that the connecting factor ‘centre of interests’ in Kylie Minogue and eDate Advertising only holds for infringement of personality rights in an internet context. Trademark violation is distinguished, on the grounds that rebus sic stantibus intellectual property rights are protected on a territorial basis. In Pinckney, which also concerns intellectual property, the Cour de Cassation moreover points out that the offending item was in fact a material carrier: a vinyl record, illegally compiling songs.

Plenty of factual elements therefore, complicating the finding of ‘place of the harmful event’ /damage under Article 5(3) Brussels I.


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