Posts Tagged Pammer Alpenhof
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.
Of rocks and hard stones for national courts – Villalon AG in Mühlleitner: No need for restrictive approach to the protective jurisdictional grounds for consumers in Brussels I
Villalon AG has opined in Case C-190/11 Mühlleitner [Opinion as yet not available in English].
Article 15 of the Brussels I ‘Jurisdiction’ Regulation, offers protective jurisdictional rules for consumers, provided one or two conditions are met. Article 15(1)(c) [statutory law likes its subdivisions) offers the generic criterion for application:
1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if: (…)
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.’
In Pammer /Alpenhof, Alpenhof had argued amongst others that that its contract with the consumer is concluded on the spot and not at a distance, as the room keys are handed over and payment is made on the spot, and that accordingly Article 15(1)(c) of Regulation No 44/2001 cannot apply. The Court of Justice had answered this with the very paragraph which has now tempted the Oberster Gerichtshof – Austria, into the preliminary review, para 87:
‘ In that regard, the fact that the keys are handed over to the consumer and that payment is made by him in the Member State in which the trader is established does not prevent that provision from applying if the reservation was made and confirmed at a distance, so that the consumer became contractually bound at a distance.’
This paragraph seemed to suggest ‘at a distance’ as the trigger for the application of Article 15(1)(c) which in turn led to the preliminary question:
Does the application of Article 15(1)(c) [ ] presuppose that the contract between the consumer and the undertaking has been concluded at a distance?
Villalon AG replied on 24 May, making specific reference to the history of Article 15, in particular with reference to the old text, under the Brussels Convention. That old provision seemed to imply that where the consumer’s contracting party had encouraged him to leave his Member State of domicile so as to conclude the contract elsewhere, the consumer could not make recourse to the protective regime. Other changes to the relevant title, too, suggested if anything that Council and Commission’s intention with the new provisions was definitely not to limit their scope of application: had they intended to do so, the AG suggests, the Institutions would have limited Article 15’s scope to contracts concluded at a distance. Court of Justice case-law hints at the same need for a wide approach [in particular, Ilsinger, where the Court of Justice held that the scope of Article 15(1)(c) appears ‘to be no longer being limited to those situations in which the parties have assumed reciprocal obligations.’]
The AG concludes with the suggestion that the reference to ‘distance’ in para 87 of Alpenhof refers to a factual circumstance, rather than a condition for application.
To many the conclusion may seem obvious, and the issue covered by acte clair (meaning the national court could have referred to the arguably obvious meaning of the provision, not to have to refer to the Court of Justice). In particular, the COJ has repeatedly emphasised the relevance of the consumer title in the Jurisdiction Regulation. On the other hand, however, the same Court has been quite anxious to give national courts detailled and specific instructions on the application of tiny details in the Regulation, making application of the acte clair doctrine quite difficult: many things one thought were clear, have been answered by the Court in unexpected ways.
National courts therefore are caught between the proverbial rock and the hard stone. Either they refer profusely, thereby feeding the cycle of micromanagement. Or they make extended use of acte clair, thereby risking unequal application of the Regulation (and potentially European Commission irk). On the issue of Article 15(1)(c) at least, the former would seem to prevail: in Slot, Case C-98/12 (hitherto still pending), the German Bundesgerichtshof has asked essentially the same question.