CELEX: 62009CJ0509
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

The present references for a preliminary ruling concern the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001
of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001
L 12, p. 1; ‘the Regulation’) and Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council
of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal
Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1; ‘the Directive’).
The references have been made in two sets of proceedings, between, firstly, X and eDate Advertising GmbH (‘eDate Advertising’)
and, secondly, Olivier and Robert Martinez, on the one hand, and MGN Limited (‘MGN’), on the other hand, concerning the civil
liability of those defendants in respect of information and photographs published on the internet.

Legal context

The Regulation
Recital 11 in the preamble to the Regulation states:
‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on
the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in
which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile
of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’
Article 2(1) of the Regulation, which appears in Section 1 (‘General provisions’) of Chapter II (‘Jurisdiction’) thereof,
provides as follows:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts
of that Member State.’
Article 3(1) of the Regulation provides:
‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out
in Sections 2 to 7 of this Chapter.’
In Section 2, entitled ‘Special jurisdiction’, of Chapter II, Article 5(3) is worded as follows:
‘A person domiciled in a Member State may, in another Member State, be sued:
…
3.      in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

The Directive
The fourth clause in recital 22 in the preamble to the Directive reads as follows:
‘[M]oreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients
of services, such information society services should in principle be subject to the law of the Member State in which the
service provider is established.’
Recital 23 in the preamble to the Directive states:
‘This Directive neither aims to establish additional rules on private international law relating to conflicts of law nor does
it deal with the jurisdiction of Courts; provisions of the applicable law designated by rules of private international law
must not restrict the freedom to provide information society services as established in this Directive.’
Recital 25 in the preamble to the Directive states:
‘National courts, including civil courts, dealing with private law disputes can take measures to derogate from the freedom
to provide information society services in conformity with conditions established in this Directive.’
In accordance with Article 1(1) thereof, the Directive has as its objective to ‘contribute to the proper functioning of the
internal market by ensuring the free movement of information society services between the Member States.’
Article 1(4) of the Directive is worded as follows:
‘This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of
Courts.’
Under Article 2(h)(i) of the Directive:
‘The coordinated field concerns requirements with which the service provider has to comply in respect of:
–        the taking-up of the activity of an information society service, such as requirements concerning qualifications, authorisation
or notification,
–        the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service
provider, requirements regarding the quality or content of the service, including those applicable to advertising and contracts,
or requirements concerning the liability of the service provider’.
Article 3(1) and (2) of the Directive provides:
‘1.      Each Member State shall ensure that the information society services provided by a service provider established on its territory
comply with the national provisions applicable in the Member State in question which fall within the coordinated field.
2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society
services from another Member State.’
Article 3(4) of the Directive sets out the conditions under which Member States may take, in respect of a given information
society service, measures that derogate from Article 3(2).

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C-509/09
In 1993, X, who is domiciled in Germany, was sentenced by a German court, together with his brother, to life imprisonment
for the murder of a well‑known actor. He was released on parole in January 2008.
eDate Advertising, which is established in Austria, operates an internet portal under the address ‘www.rainbow.at’. In the
section ‘Info‑News’, on the pages dedicated to old news, the defendant made access to a report, dated 23 August 1999, available
for purposes of consultation until 18 June 2007. That report, which named X and his brother, stated that they had both lodged
appeals against their conviction with the Bundesverfassungsgericht (Federal Constitutional Court) in Karlsruhe (Germany).
In addition to a brief description of the crime committed in 1990, the lawyer instructed by the convicted men is quoted as
saying that they intended to prove that several of the principal witnesses for the prosecution had not told the truth at the
trial.
X called upon eDate Advertising to desist from reporting that matter and to give an undertaking that it would refrain from
future publication. eDate Advertising did not reply to that letter but, on 18 June 2007, removed the disputed information
from its website.
By his action before the German courts, X calls upon eDate Advertising to refrain from using his full name when reporting
about him in connection with the crime committed. The main contention of eDate Advertising is that the German courts have
no international jurisdiction in the matter. As the action was successful in both lower courts, eDate Advertising continues,
before the Bundesgerichtshof (German Federal Court of Justice), to seek to have the action dismissed.
The Bundesgerichtshof notes that the outcome of the action is dependent on whether the lower courts were correct in holding
that they have international jurisdiction to rule on the dispute pursuant to Article 5(3) of the Regulation.
If the international jurisdiction of the German courts is established, the Bundesgerichtshof states that the question then
arises as to whether German or Austrian law applies. That depends on the interpretation of Article 3(1) and (2) of the Directive.
On the one hand, the country-of-origin principle may have a corrective effect on a substantive law level. The substantive
law outcome under the law declared to be applicable pursuant to the conflict-of-laws rules of the State in which the court
seised is situated is, in individual cases, altered in its content, where appropriate, and reduced to the less stringent requirements
of the law of the country of origin. According to this interpretation, the country-of-origin principle does not affect the
national conflict-of-laws rules of the State in which the court seised is situated and applies – in the same way as the fundamental
freedoms set out in the EC Treaty – only in the context of an individual cost/benefit comparison at a national law level.
On the other hand, Article 3 of the Directive may establish a general principle with regard to conflict-of-laws rules that
leads to the exclusive application of the law in force in the country of origin and the ousting of the national conflict-of-laws
rules.
The Bundesgerichtshof states that if the country-of-origin principle were to be considered to be an obstacle to the application
of law on a substantive level, German private international law would be applicable and the decision under challenge would
then have to be set aside and the action ultimately dismissed, since the applicant’s claim seeking an injunction under German
law would have to be refused. By contrast, if the country-of-origin principle were to be treated as a conflict-of-laws rule,
X’s claim for an injunction would then have to be assessed according to Austrian law.
In those circumstances, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the
Court for a preliminary ruling:
‘1.      Is the phrase “the place where the harmful event ... may occur” in Article 5(3) of [the Regulation] to be interpreted as meaning,
in the event of (possible) infringements of the right to protection of personality by means of content on an internet website,
that the person concerned may also bring an action for an injunction against the operator of the website, irrespective of
the Member State in which the operator is established, in the courts of any Member State in which the website may be accessed,
or
does the jurisdiction of the courts of a Member State in which the operator of the website is not established require that
there be a special connection between the contested content or the website and the State of the court seised (domestic connecting
factor) going beyond technically possible accessibility?
2.      If such a special domestic connecting factor is necessary:
What are the criteria which determine that connection?
Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at the
internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website
to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual
case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting
interests – the applicant’s interest in respect for his right to protection of personality and the operator’s interest in
the design of his website and in news reporting – may actually have occurred or may occur in the State of the court seised?
Does the determination of the special domestic connecting factor depend upon the number of times the website to which the
applicant objects has been accessed from the State of the court seised?
3.      If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient
for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an
objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular
on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually
have occurred or may occur in the State of the court seised and the existence of a special domestic connecting factor may
be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been
accessed from the State of the court seised:
Must Article 3(1) and (2) of [the Directive] be interpreted as meaning:
that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law
they also require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-laws
rules,
or
do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under
the law declared to be applicable pursuant to the national conflict-of-laws rules is altered and reduced to the requirements
of the country of origin?
In the event that Article 3(1) and (2) of [the Directive] has a conflict-of-laws character:
Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or
also the application of the conflict-of-laws rules applicable there, with the consequence that a renvoi under the law of the
country of origin to the law of the target State remains possible?’

Case C‑161/10
Before the Tribunal de grande instance de Paris (Paris Regional Court), the French actor Olivier Martinez and his father,
Robert Martinez, complain of interference with their private lives and infringement of the right of Olivier Martinez to his
image by reason of the posting, on the website accessible at the internet address ‘www.sundaymirror.co.uk’, of a text in English,
dated 3 February 2008, entitled ‘Kylie Minogue is back with Olivier Martinez’, with details of their meeting.
On the basis of Article 9 of the French Civil Code, which provides that ‘everyone has the right to respect for his private
life’, the present action has been brought against MGN, a company governed by English law, which publishes the website of
the British newspaper the
Sunday Mirror
. That company raises the objection that the Tribunal de grande instance de Paris lacks jurisdiction as there is no sufficient
connecting link between the act of placing the text and images at issue online and the alleged damage in French territory,
whereas the applicants, by contrast, take the view that such a connecting link is unnecessary and that, in any event, there
is such a link.
The national court states that, where the internet is the medium for a harmful event, that harmful event can be deemed to
have occurred in the territory of a Member State only if there is a sufficient, substantial or significant link connecting
it with that territory.
The national court takes the view that the answer to the question whether a court of a Member State has jurisdiction to deal
with an action alleging infringement of personality rights committed via the internet, from a website published by a person
domiciled in another Member State and essentially intended for the public in that other Member State, does not follow clearly
from the terms of Articles 2 and 5(3) of the Regulation.
In those circumstances, the Tribunal de grande instance de Paris decided to stay the proceedings and to refer the following
questions to the Court for a preliminary ruling:
‘Must Articles 2 and 5(3) of [the Regulation] be interpreted to mean that a court or tribunal of a Member State has jurisdiction
to hear an action brought in respect of an infringement of personality rights allegedly committed by the placing online of
information and/or photographs on an internet site published in another Member State by a company domiciled in that second
State – or in a third Member State, but in any event a State other than the first Member State:
–        on the sole condition that the internet site can be accessed from the first Member State,
–        on the sole condition that there is, between the harmful act and the territory of the first Member State, a link which is
sufficient, substantial or significant and, in that case, whether that link can be created by:
–        the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all
hits on that page,
–        the residence, or nationality, of the person who complains of the infringement of his or her personality rights or, more generally,
of the persons concerned,
–        the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s
intention to address specifically the public of the first Member State,
–        the place where the events described occurred and/or where the photographic images put on line were taken,
–        other criteria?’
By order of 29 October 2010, the President of the Court of Justice, in accordance with Article 43 of the Rules of Procedure
of the Court, decided to join Cases C‑509/09 and C‑161/10 for the purposes of the oral hearing and the judgment.

Admissibility
The Italian Government expresses the view that the questions submitted in Case C‑509/09 should be declared inadmissible for
lack of relevance to the dispute in the main proceedings. An injunction, it argues, is an emergency judicial instrument and
therefore presupposes current harmful behaviour. It is, however, evident from the presentation of the facts in this case that
the behaviour regarded as harmful was no longer current at the time when the application for an injunction was made, given
that the operator of the website had already removed the information in dispute prior to the commencement of proceedings.
It should be recalled in this regard that, according to settled case-law, in proceedings under Article 267 TFEU, it is solely
for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent
judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary
ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently,
where the questions referred concern the interpretation of European Union law, the Court of Justice is, in principle, bound
to give a ruling (see Case C‑52/09
TeliaSonera Sverige
[2011] ECR I‑0000, paragraph 15 and the case-law cited).
The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite
obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action
or its purpose, inter alia where the problem is hypothetical (see
TeliaSonera Sverige
, paragraph 16).
It does not, however, appear that, in the case in the main proceedings, the application for an injunction became devoid of
purpose by reason of the fact that the website operator had already removed the information in dispute before proceedings
were commenced. Indeed, as is set out at paragraph 18 of this judgment, the injunction application was successful in the two
lower courts.
In any event, the Court has already noted that, in the light of its wording, Article 5(3) of the Regulation does not require
the current existence of damage (see, to that effect, Case C‑167/00
Henkel
[2002] ECR I‑8111, paragraphs 48 and 49). It follows that an action seeking to prevent a repetition of behaviour regarded
as wrongful comes within the scope of that provision.
In those circumstances, the reference for a preliminary ruling must be held to be admissible.

Consideration of the questions referred

Interpretation of Article 5(3) of the Regulation
By the first two questions in Case C‑509/09 and the single question in Case C‑161/10, which it is appropriate to examine together,
the national courts ask the Court, in essence, how the expression ‘the place where the harmful event occurred or may occur’,
used in Article 5(3) of the Regulation, is to be interpreted in the case of an alleged infringement of personality rights
by means of content placed online on an internet website.
In order to answer those questions, it should be borne in mind, first, that, according to settled case-law, the provisions
of the Regulation must be interpreted independently, by reference to its scheme and purpose (see, inter alia, Case C‑189/08
Zuid‑Chemie
[2009] ECR I‑6917, paragraph 17 and the case-law cited).
Second, in so far as the Regulation now replaces, in the relations between Member States, the Convention of 27 September 1968
on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the
successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), the
interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of the
Regulation whenever the provisions of those Community instruments may be regarded as equivalent (
Zuid‑Chemie
, paragraph 18).
It is settled case-law that 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 the Regulation 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 (
Zuid‑Chemie
, paragraph 24 and the case-law cited).
It must also be borne in mind that the expression ‘place where the harmful event occurred’ is intended to cover both the place
where the damage occurred and the place of the event giving rise to it. Those two places could constitute a significant connecting
factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful
in relation to the evidence and the conduct of the proceedings (see Case C‑68/93
Shevill and Others
[1995] ECR I‑415, paragraphs 20 and 21).
In relation to the application of those two connecting criteria to actions seeking reparation for non-material damage allegedly
caused by a defamatory publication, the Court has held that, in the case of defamation by means of a newspaper article distributed
in several Contracting States, the victim may bring an action for damages against the publisher either before the courts of
the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction
to award damages for all of the harm caused by the defamation, or before the courts of each Contracting State in which the
publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction
to rule solely in respect of the harm caused in the State of the court seised (
Shevill and Others
, paragraph 33).
In that regard, the Court has also stated that, while it is true that the limitation of the jurisdiction of the courts in
the State of distribution solely to damage caused in that State presents disadvantages, the plaintiff always has the option
of bringing his entire claim before the courts either of the defendant’s domicile or of the place where the publisher of the
defamatory publication is established (
Shevill and Others
, paragraph 32).
Those considerations may, as was noted by the Advocate General at point 39 of his Opinion, also be applied to other media
and means of communication and may cover a wide range of infringements of personality rights recognised in various legal systems,
such as those alleged by the applicants in the main proceedings.
However, as has been submitted both by the referring courts and by the majority of the parties and interested parties which
have submitted observations to the Court, the placing online of content on a website is to be distinguished from the regional
distribution of media such as printed matter in that it is intended, in principle, to ensure the ubiquity of that content.
That content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any
intention on the part of the person who placed it in regard to its consultation beyond that person’s Member State of establishment
and outside of that person’s control.
It thus appears that the internet reduces the usefulness of the criterion relating to distribution, in so far as the scope
of the distribution of content placed online is in principle universal. Moreover, it is not always possible, on a technical
level, to quantify that distribution with certainty and accuracy in relation to a particular Member State or, therefore, to
assess the damage caused exclusively within that Member State.
The difficulties in giving effect, within the context of the internet, to the criterion relating to the occurrence of damage
which is derived from
Shevill and Others
contrasts, as the Advocate General noted at point 56 of his Opinion, with the serious nature of the harm which may be suffered
by the holder of a personality right who establishes that information injurious to that right is available on a world-wide
basis.
The connecting criteria referred to in paragraph 42 of the present judgment must therefore be adapted in such a way that a
person who has suffered an infringement of a personality right by means of the internet 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 might
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, referred to in paragraph 40 above.
The place where a person has the centre of his interests corresponds in general to his habitual residence. However, a person
may also have the centre of his interests in a Member State in which he 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 (see Case C‑144/10
BVG
[2011] ECR I‑0000, paragraph 33) 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 Case
C‑533/07
Falco Privatstiftung and Rabitsch
[2009] ECR I‑3327, paragraph 22 and the case-law cited).
Moreover, instead of an action for liability in respect of all of the damage, the criterion of the place where the damage
occurred, derived from
Shevill and Others
, confers jurisdiction on courts in 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.
Consequently, the answer to the first two questions in Case C‑509/09 and the single question in Case C‑161/10 is that Article
5(3) of the Regulation 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.

Interpretation of Article 3 of the Directive
By its third question in Case C‑509/09, the Bundesgerichtshof asks whether the provisions of Article 3(1) and (2) of the Directive
have the character of a conflict-of-laws rule in the sense that, for the field of private law, they also require the exclusive
application, for information society services, of the law in force in the country of origin, to the exclusion of national
conflict-of-laws rules, or whether they operate as a corrective to the law declared to be applicable pursuant to the national
conflict-of-laws rules in order to adjust it in accordance with the requirements of the country of origin.
Those provisions must be analysed by taking account not only of their wording, but also of the context in which they occur
and the objectives pursued by the rules of which they are part (see Case C‑156/98
Germany
v
Commission
[2000] ECR I‑6857, paragraph 50, Case C‑306/05
SGAE
[2006] ECR I‑11519, paragraph 34, and Case C‑162/09
Lassal
[2010] ECR I‑0000, paragraph 49).
In that sense, the enacting terms of a European Union act are indissociably linked to the reasons given for it, so that, when
it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑298/00 P
Italy
v
Commission
[2004] ECR I‑4087, paragraph 97 and the case-law cited, and
Lassal
, paragraph 50).
The Directive, which was adopted on the basis of Articles 47(2) EC, 55 EC and 95 EC, has the objective, as set out in Article
1(1) thereof, of contributing to the proper functioning of the internal market by ensuring the free movement of information
society services between the Member States. Recital 5 in the preamble lists, as legal obstacles to the proper functioning
of the internal market in that field, divergences in legislation and legal uncertainty as regards which national rules apply
to such services.
For the majority of the aspects of electronic commerce, however, the Directive is not intended to achieve harmonisation of
substantive rules, but defines a ‘coordinated field’ in the context of which the mechanism in Article 3 must allow, according
to recital 22 in the preamble to the Directive, information society services to be, in principle, subject to the law of the
Member State in which the service provider is established.
In that regard, it must be noted, firstly, that the law of the Member State in which the service provider is established includes
the private law field, which is apparent from, inter alia, recital 25 in the preamble to the Directive and from the fact that
the annex thereto sets out the private-law rights and obligations to which the Article 3 mechanism does not apply. Secondly,
the application thereof to the liability of service providers is expressly provided for by the second indent of Article 2(h)(i)
of the Directive.
A reading of Article 3(1) and (2) of the Directive in the light of the abovementioned provisions and objectives shows that
the mechanism provided for by the Directive prescribes, also in private law, respect for the substantive law requirements
in force in the country in which the service provider is established. In the absence of binding harmonisation provisions adopted
at European Union level, only the acknowledgement of the binding nature of the national law to which the legislature has decided
to make the service providers and their services subject can guarantee the full effect of the free provision of those services.
Article 3(4) of the Directive confirms such a reading in that it sets out the conditions under which Member States may derogate
from Article 3(2), which must be regarded as being exhaustive.
The interpretation of Article 3 of the Directive must, however, also take account of Article 1(4) thereof, according to which
the Directive does not establish additional rules on private international law relating to conflicts of laws.
In that regard, it must be noted, firstly, that an interpretation of the internal market rule enshrined in Article 3(1) of
the Directive as meaning that it leads to the application of the substantive law in force in the Member State of establishment
does not determine its classification as a rule of private international law. That paragraph principally imposes on Member
States the obligation to ensure that the information society services provided by a service provider established on their
territory comply with the national provisions applicable in the Member States in question which fall within the coordinated
field. The imposition of such an obligation is not in the nature of a conflict-of-laws rule designed to resolve a specific
conflict between several laws which may be applicable.
Secondly, Article 3(2) of the Directive prohibits Member States from restricting, for reasons falling within the coordinated
field, the freedom to provide information society services from another Member State. By contrast, it is apparent from Article
1(4) of the Directive, read in the light of recital 23 in the preamble thereto, that host Member States are in principle free
to designate, pursuant to their private international law, the substantive rules which are applicable so long as this does
not result in a restriction of the freedom to provide electronic commerce services.
It follows that Article 3(2) of the Directive does not require transposition in the form of a specific conflict-of-laws rule.
The provisions of Article 3(1) and (2) of the Directive must, however, be interpreted in such a way as to guarantee that the
coordinated approach chosen by the European Union legislature will effectively allow the free movement of information society
services between the Member States.
In this regard, it must be recalled that the Court has already ruled that it must be possible to apply mandatory provisions
of a directive that are necessary to achieve the objectives of the internal market notwithstanding a choice of different law
(see, to that effect, Case C‑381/98
Ingmar
[2000] ECR I‑9305, paragraph 25, and Case C‑465/04
Honyvem Informazioni Commerciali
[2006] ECR I‑2879, paragraph 23).
In relation to the mechanism provided for by Article 3 of the Directive, it must be held that the fact of making electronic
commerce services subject to the legal system of the Member State in which their providers are established pursuant to Article
3(1) does not allow the free movement of services to be fully guaranteed if the service providers must ultimately comply,
in the host Member State, with stricter requirements than those applicable to them in the Member State in which they are established.
It follows that Article 3 of the Directive precludes, subject to derogations authorised in accordance with the conditions
set out in Article 3(4), a provider of an electronic commerce service from being made subject to stricter requirements than
those provided for by the substantive law in force in the Member State in which that service provider is established.
In light of the foregoing, the answer to the third question in Case C‑509/09 is that Article 3 of the Directive 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 the 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.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national courts,
the decisions on costs are a matter for those courts. Costs incurred in submitting observations to the Court, other than the
costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.
Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 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.
2.
Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’),
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 Directive 2000/31, 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.
[Signatures]
*
Languages of the cases: German and French.