Posts Tagged Internet sales

Prove it if you can? E-commerce and jurisdiction: the ECJ further completes the jigsaw in Emrek

As tweeted last week, the Court of Justice has clarified the scope of the consumer title of the Brussels-I Regulation in Case C-218/12 Emrek. In Spicheren, a town close to the German border, Mr Sabranovic sells second-hand motor vehicles. He had an internet site on which French telephone numbers and a German mobile telephone number were mentioned, together with the respective international codes. Mr Emrek, who resides in Saarbrücken (Germany) and who learned through acquaintances (not via the internet) of Mr Sabronovic’s business went there and purchased a second-hand motor vehicle.

Subsequently, Mr Emrek made claims against Mr Sabronovic under the warranty before the Amtsgericht (District Court) Saarbrücken. Mr Emrek took the view that, under Regulation No 44/2001, that court had jurisdiction to hear such an action. It was clear from the set-up of Mr Sabranovic’s website that his commercial activity was also directed to Germany. However, it was also clear that the contract that had been concluded was not the result of that direction: Mr Emrek had heard from the business by word of mouth, not the internet.  Must there be a causal link between the means employed to direct the commercial activity to the Member State of the consumer’s domicile, namely the internet site, and the conclusion of the contract with the consumer?

The Court held that requiring such causal link would raise questions of burden of proof. Difficulties related to proof of the existence of a causal link would tend to dissuade consumers from bringing actions before the courts of their domicile and would therefore weaken the protection of consumers pursued by the regulation. However if and when that causal link is in fact established, it would constitute strong evidence which may be taken into consideration by the national court to determine whether the activity of the professional trader is ‘directed at’ the Member State of the consumer’s domicile.

The Court’s judgment could have certainly swayed differently. There are – among other textual – reasons for arguing pro requiring a causal link between the activities directed at the consumer’s place of domicile, and the eventual contract. The ECJ pushes out the consumer protection boat yet a little further.

I can’t quite think of a pun to end this posting. I’ll just end it. Geert.

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Football Dataco: CJEU confirms ‘intended target of information’ criterion as jurisdictional trigger in an internet context

[postscript 5 February 2014: L’Oreal and e-bay settled their dispute (referred to below) out off court in January 2014. Settlement is undisclosed.]

Mere accessibility of data does not suffice to grant jurisdiction under the Database Directive. In Football Dataco, the  CJEU has confirmed the ‘intended target of information’ criterion as a jurisdictional trigger in an internet context.

The Football Dataco judgment has its most immediate impact in the Intellectual property area, however the judgment has generally confirmed the ‘intended target’ criterion as a trigger for jurisdiction in an internet context.

In the trademark sector, the L’Oréal /Ebay litigation led to the CJEU instructing that where goods located in a third State, which bear a trade mark registered in an EU Member State or a Community trade mark and have not previously been put on the market in the EEA or, in the case of a Community trade mark, in the EU, (i) are sold by an economic operator on an online marketplace without the consent of the trade mark proprietor to a consumer located in the territory covered by the trade mark or (ii) are offered for sale or advertised on such a marketplace targeted at consumers located in that territory, the trade mark proprietor may prevent that sale, offer for sale or advertising by virtue of the rules set out in relevant EU legislation. It is the task of the national courts to assess on a case-by-case basis whether relevant factors exist, on the basis of which it may be concluded that an offer for sale or an advertisement displayed on an online marketplace accessible from the territory covered by the trade mark is ‘targeted at’ consumers in that territory: When the offer for sale is accompanied by details of the geographic areas to which the seller is willing to dispatch the product, that type of detail is of particular importance in the said assessment:

The CJEU itself noted in para 64 of its L’Oréal judgment the analogy with the Pammer and Alpenhof litigation [the main judgment for the application of the Jurisdiction Regulation in an internet context].

‘Intended target of information’ as a criterion of applicability was now also confirmed as the criterion for application of the Database Directive, Directive 96/9 in Case C-173/11 Football Dataco (judgment of 18 October 2012): ‘Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess.’

In other words, mere accessibility of data does not suffice to grant jurisdiction under the Database Directive.

Geert.

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