Joined Cases C-509/09 and C-161/10

eDate Advertising GmbH

v

X

and

Olivier Martinez and Robert Martinez

v

MGN Limited

(References for a preliminary ruling from the Bundesgerichtshof and from the tribunal de grande instance de Paris)

(Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive 2000/31/EC – Publication of information on the internet – Adverse effect on personality rights – Place where the harmful event occurred or may occur – Law applicable to information society services)

Summary of the Judgment

1.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website – Place where the harmful event occurs – Definition

(Council Regulation No 44/2001, Art. 5(3))

2.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Special jurisdiction – Jurisdiction in tort, delict or quasi-delict – Infringement of personality right by means of content placed online on an internet website

(Council Regulation No 44/2001, Art. 5(3))

3.        Approximation of laws – Electronic commerce – Directive 2000/31 – Provisions concerning the internal market – Obligation, for the Member States, not to make the suppliers of services subject to stricter requirements than those laid down by the Member State in which that service provider is established – Scope

(European Parliament and Council Directive 2000/31, Art. 3)

1.        The rule of special jurisdiction laid down, by way of derogation from the principle of jurisdiction of the courts of the place of domicile of the defendant, in Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.

However, when a victim relies on a personality right by means of content placed on an internet site, in so far as the scope of the diffusion of content place online is in principle universal, the difficulties in giving effect to the criterion relating to the occurrence of damage due to the diffusion of information require the connecting criteria to be adapted in such a way that the victim of such an infringement may bring an action, in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred.

Given that the impact which material placed online is liable to have on an individual’s personality rights may best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice. That place corresponds in general to the habitual residence of the victim, but it may also be a Member State where the victim does not habitually reside, in so far as other factors, such as the pursuit of a professional activity, may establish the existence of a particularly close link with that State.

The jurisdiction of the court of the place where the alleged victim has the centre of his interests is in accordance with the aim of predictability of the rules governing jurisdiction also with regard to the defendant, given that the publisher of harmful content is, at the time at which that content is placed online, in a position to know the centres of interests of the persons who are the subject of that content. The view must therefore be taken that the centre-of-interests criterion allows both the applicant easily to identify the court in which he may sue and the defendant reasonably to foresee before which court he may be sued.

(see paras 40-41, 46-50)

2.        Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

(see para. 52, operative part 1)

3.        Article 3 of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, must be interpreted as not requiring transposition in the form of a specific conflict-of-laws rule. Nevertheless, in relation to the coordinated field, Member States must ensure that, subject to the derogations authorised in accordance with the conditions set out in Article 3(4) of that directive, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

(see para. 68, operative part 2)