The CJEU today held in Case C-572/14 Austro Mechana. I reported earlier on the AG’s Opinion (which was issued not too long ago). That post also refers readers to Tobias Lutzi‘s analysis. He points quite correctly (indeed entirely correctly) to the issue of dovetail between (now) Article 7(1) and 7(2). Given the interplay between Handte and Kalfelis, is an obligation between parties which is not contractual, necessarily one in tort? I.e. do these two dovetail? Following Kalfelis itself, the answer must be no: an action falls under Art. 7(2) if it ‘seeks to establish the liability of a defendant’ and is ‘not related to a “contract” within the meaning of Article 5(1)’ (para 56). Therefore one must seek to establish the liability of the defendant, and not just review whether the claim is contractual or not.
In the case of collection of copyright levies for private use (where consent of the copyright holder is not sought and a compensatory levy is imposed by national law instead, in accordance with relevant instructions in EU copyright law), one would intuitively say that no ‘liability’ is established against the distributor of copyrighted materials to whom effectively collection of a State-imposed duty is outsourced.
In the present case, the action brought by Austro-Mechana seeks to obtain compensation for the harm arising from non-payment by Amazon of the remuneration provided for in Austrian law. That failure to collect , the Court holds (at 44) constitutes a harmful event within the meaning of Article 7(2). At 50: ‘Austro-Mechana’s claim seeks to establish the liability of the defendant, since that claim is based on an infringement by Amazon of the provisions of the UrhG imposing that obligation on it, and that that infringement is an unlawful act causing harm to Austro-Mechana.’
The Court therefore does not dismiss the first criterion of the Kalfelis formula (‘establishing liability’). Yet it surely stretches it. The Court’s initial formulation of a two-pronged condition of application, therefore has not disappeared. However if the criterion of establishing liability is too readily accepted, the relevance of the initial formulation is certainly fading.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 18.104.22.168.