Pez Hejduk v EnergieAgentur.NRW GmbH.
Date: 2015-01-22
16. As a preliminary point, it should be noted, first, that Article 5(3) of Regulation No 44/2001 must be interpreted autonomously and strictly (see to that effect, judgment in Coty Germany , C‑360/12, EU:C:2014:1318, paragraphs 43 to 45).
17. It is only by way of derogation from the fundamental principle laid down in Article 2(1) of Regulation No 44/2001, attributing jurisdiction to the courts of the Member States in which the defendant is domiciled, that Section 2 of Chapter II of that regulation makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of that regulation (judgment in Coty Germany , EU:C:2014:1318, paragraph 44).
18. It is clear from the Court’s case-law that the expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (judgment in Coty Germany , EU:C:2014:1318, paragraph 46).
19. In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of that regulation is based on the existence of a particularly close linking factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgment in Coty Germany , EU:C:2014:1318, paragraph 47).
20. Since identification of one of the linking factors recognised by the case-law referred to in paragraph 18 above thus establishes the jurisdiction of the court objectively best placed to determine whether the elements establishing the liability of the person sued are present, it follows that only the court in whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in Coty Germany , EU:C:2014:1318, paragraph 48 and the case-law cited).
22. In that regard, it must be observed that, although copyright rights must be automatically protected, in particular in accordance with Directive 2001/29, in all Member States, they are subject to the principle of territoriality. Those rights are thus capable of being infringed in each Member State in accordance with the applicable substantive law (see judgment in Pinckney , C‑170/12, EU:C:2013:635, paragraph 39).
23. In the first place, it must be stated that the causal event, defined as the event which gives rise to the alleged damage (see judgment in Zuid-Chemie , C‑189/08, EU:C:2009:475, paragraph 28), is not relevant for the purpose of attributing jurisdiction to the court before which a case such as that in the main proceedings has been brought.
24. In a situation such as that at issue in the main proceedings, in which the alleged tort consists in the infringement of copyright or rights related to copyright by the placing of certain photographs online on a website without the photographer’s consent, the activation of the process for the technical display of the photographs on that website must be regarded as the causal event. The event giving rise to a possible infringement of copyright therefore lies in the actions of the owner of that site (see, by analogy, judgment in Wintersteiger , C‑523/10, EU:C:2012:220, paragraphs 34 and 35).
29. In that regard, the Court has stated not only that the place where the alleged dam age occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed, but also that the likelihood of damage occurring in a particular Member State is subject to the condition that the right whose infringement is alleged is protected in that Member State (see judgment in Pinckney , EU:C:2013:635, paragraphs 32 and 33).
32. It is clear from the Court’s case-law that, unlike Article 15(1)(c) of Regulation No 44/2001, which was interpreted in the judgment in Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740), Article 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seised is situated (see judgment in Pinckney , EU:C:2013:635, paragraph 42).
36. However, given that the protection of copyright and rights related to copyright granted by the Member State of the court seised is limited to the territory of that Member State, a court seised on the basis of the place where the alleged damage occurred has jurisdiction only to rule on the damage caused within that Member State (see, to that effect, judgment in Pinckney , EU:C:2013:635, paragraph 45).
37. The courts of other Member States in principle retain jurisdiction, in the light of Article 5(3) of Regulation No 44/2001 and the principle of territoriality, to rule on the damage to copyright or rights related to copyright caused in their respective Member States, given that they are best placed, first, to ascertain whether those rights guaranteed by the Member State concerned have in fact been infringed and, secondly, to determine the nature of the damage caused (see, to that effect, judgment in Pinckney  EU:C:2013:635, paragraph 46).