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2012/05 > Forum Shopping and the Proper Administration of Justice

In private international law, rules of jurisdiction in civil and commercial matters, set out in EU Regulation 44/2001, are organized around the principle of jurisdiction of the defendant’s domicile, except in specific cases where a different connecting factor is justified. Thus, Article 5.3 of the Regulation provides that in tort, a person domiciled in a Member State may be sued, in another Member State, in the Courts of the place where the harmful event occurred or may occur.

In two recent decisions, the Court of Justice of the European Union (ECJ) ruled on the concept of “the place of the harmful event”, in relation to infractions by online releases on the Internet.

In the Wintersteiger decision of April 19, 2012 (ECJ, 19 April 2012, Wintersteinger AG c. Products 4U, Aff. C-523/10), an Austrian company had brought proceedings for infringement against a German competitor, which, by the reservation of a keyword, used the Austrian Company’s corporate name and Trademark on a search engine, via the extension “.de”. The German company, brought before the Austrian courts, had challenged their jurisdiction.

The question was therefore whether the general principle of the competence the Court of the defendant’s domicile should apply, or whether to consider that the use of a trademark on a website, which operates under a top level domain name (in this case “.de”), could establish the jurisdiction of the Austrian Courts as the place of the harmful event.

The ECJ decision recalled that the exception to the jurisdiction of the defendant’s domicile relies on the existence of a “particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred” and indicated that the concept of the place of the harmful event refers to both “the place where the damage occurred” and “the place of the event giving rise to it”. The ECJ also stated that the choice between the Courts of either of these places belongs to the applicant.

In this case, the trademark enjoyed national protection in Austria and the place where the damage occurred was therefore the State in which it was protected, namely Austria, the question of the existence of an infringement of that trademark forming part of the detailed examination of the case on its merits. On the other hand, the advertiser, who instigated the technical process leading to electronic display of the advertisement at issue was at the origin of the damage, and the location of the damaging event was therefore the place of business of the advertiser, namely Germany. It follows from the decision that the plaintiff had a choice between the Austrian and German courts.

In a previous decision dating from 25 October 2011 (ECJ, 25 October 2011, eDate Advertising GmbH, C-509/09 and Olivier Martinez, Robert Martinez c. MGN Limited, C-161/10) relating to an online broadcast in the United Kingdom infringing a personality right in France, the ECJ ruled that the plaintiff could appeal, for redressing all loss suffered, either to the Courts where the materialization of the offense occurred, namely the place of establishment of the company issuing the disputed content, or the place of the event giving rise to the damage, namely the jurisdiction where “the center of (the victim’s) interests is based”, i.e. usually its habitual residence. However, the applicant could also bring proceedings in the Courts of each State in which the content at issue was available. In the latter case, the courts were competent only with respect to the damage caused in their territory.

As the Court points out, the objective of predictability and good administration of justice are the very foundations of the exception laid down in Article 5 of Regulation 44/2001. We observe, however, that leaving the choice to the applicant is likely to go precisely against achievement of that objective.


In Brief: In a decision dated May 2, 2012 (Case C-406/10) the ECJ ruled that the functionality of a computer program, the programming language or the format of data files used in a computer program to achieve some of its functions, do not constitute a form of expression of this program and cannot be protected by copyright within the meaning of the Directive 91/250/EEC, of May 14, 1991, on the legal protection of computer programs.

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