The European Court of Justice (ECJ) has ruled on a question of jurisdiction under the Brussels Regulation (44/2001/EC) in proceedings for copyright infringement.
The Brussels Regulation sets out a system for the allocation of jurisdiction and for the reciprocal enforcement of judgments. Persons domiciled in an EU member state are to be sued in that state, subject to certain exceptions (Article 2, Brussels Regulation) (Article 2). In relation to a tort, a person may also be sued in the courts of the place where the harmful event occurred or may occur (Article 5(3), Brussels Regulation) (Article 5(3)).
S sued H in Germany for copyright infringement on the basis that H had passed the photos to the publisher. H challenged the jurisdiction of the German court, pointing out that the harmful event occurred in France if the photographs were passed to the publisher's French office.
The German Federal Court of Justice referred to the ECJ the question of whether, under Article 5(3), the harmful event occurred in member state A if the tort forming the subject matter of the proceedings, or from which the claims were derived, was committed in member state B and consisted of the participation in the principle tort committed in member state B.
The ECJ confirmed that the expression "place where the harmful event occurred or may occur" in Article 5(3) was intended to cover both the place where the damage occurred and the place of the causal event giving rise to the damage, so H could be sued in the courts of either of those two places, at S's option.
Both H and the publisher were considered to have caused the alleged harmful event (the copyright infringement). However, H acted in France, and was therefore outside the jurisdiction of the court in which it was sued. Where only one of several supposed perpetrators of the alleged damage was sued in a court within whose jurisdiction it had not acted, the causal event would not occur within the jurisdiction of that court for the purposes of Article 5(3). Therefore, Article 5(3) would not allow jurisdiction to be established on that basis.
However, where there are several supposed perpetrators of the damage allegedly caused to the rights holder, Article 5(3) allows jurisdiction to be established, in relation to just one of the perpetrators, on the basis of the place where the alleged damage occurred, provided that the damage might occur within the jurisdiction of the court seised.
On the facts, the delivery of the photographs by H to the publisher in France gave rise to the reproduction and distribution of the photographs, and therefore the possibility that the alleged damage might occur in Germany. However, the court seised on the basis of the place where the damage occurred had jurisdiction only to rule on the damage caused in the territory of that member state.
The decision suggests that, while the so-called causation limb (using the place of the causal event giving rise to the damage) cannot be used to establish jurisdiction under Article 5(3) if the defendant did not act in the jurisdiction, it is sufficient to establish jurisdiction (on the basis of the place where the damage occurred) where the reproduction and distribution of the allegedly infringing work gives rise to the possibility that damage might occur within the jurisdiction. This should increase the flexibility of potential options when choosing where to sue foreign defendants within the EU.
Jurisdiction under Article 5(3) is limited to damage caused within that member state. If S had sued the publisher under Article 2, on the basis of its domicile in Germany, jurisdiction would not have been so limited.
Case: Hi Hotel HCF SARL v Spoering C-387/12.
First published in the April 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.