Oberster Gerichtshof; 2018-02-28; 6 Ob 23/18b
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2018:0060OB00023.18B.0228.000
Date: 2018-02-28
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82018AT0228(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person domiciled in Austria (hereinafter ‘the plaintiff’) filed extensive claims for declaratory and injunctive relief, a request for forbearance, accounting and performance against Facebook (hereinafter ‘the defendant’). The defendant allegedly violated multiple data protection provisions of the DSG (1), DPA (2) and Directive 95/46/EC (3)
The international jurisdiction of the Landesgericht für Zivilrechtssachen Vienna (hereinafter ‘the Court of First Instance’) is based on Article 16(1) of the Brussels I Regulation (4) (jurisdiction over consumer contracts). The plaintiff asserts his claims not only in his own name, but also by assignment of claims of several defendants from different Member States (class action).
The defendant raised the plea of lack of international jurisdiction, arguing that the plaintiff, who used the Facebook account not only for private purposes but also for commercial purposes, cannot rely on the consumer jurisdiction.
The Court of First Instance dismissed the action. Commercial use of a Facebook account disqualifies the plaintiff as a consumer. The reasons for the place of jurisdiction of the cedants did not go beyond that of the assignee (plaintiff).
The Oberlandesgericht Vienna (hereinafter ‘the Court of Appeal’) amended the decision on the plaintiff’s appeal on a temporary basis to the effect that it dismissed the action only in respect to the claims which did not concern the plaintiff personally. By relying on consumer jurisdiction, one must personally be a party to the dispute.
Both parties appealed this decision to the Obersten Gerichtshof der Republik Österreich (hereinafter ‘the Supreme Court’).
The appeals were admitted but not upheld.
Following the questions put by the Supreme Court, the Court of Justice of the European Union ruled as follows:
Article 15 of the Brussels I Regulation ‘must be interpreted as meaning that the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement do not entail the loss of a private Facebook account user’s status as a ‘consumer’ within the meaning of that article’.
Article 16(1) of the Brussels I Regulation ‘does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries’.
The Court of Appeal rightly denied the existence of the matter of dispute. The Irish data protection authority (5), first invoked by the plaintiff, carries out only one administrative procedure. It obliges the authority to remedy certain violations of the law, but it cannot decide on civil claims. Thus, this procedure primarily serves public interests. This Irish procedure does not deal with civil or commercial matters within the meaning of the Brussels I Regulation and the Irish Data Protection authority does not act as a court in this context.
The Supreme Court did not uphold the appeal of the plaintiff and defendant.
(1) Datenschutzgesetz (Data Protection Act).
(2) Irish Data Protection Act.
(3) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
(4) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(5) Irish Data Protection Commissioner.