eDate Advertising GmbH and Others v X and Société MGN LIMITED.
Date: 2011-10-25
32. 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).
33. 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).
35. 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.
38. 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).
39. 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).
40. 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).
41. 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).
42. 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).
43. 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).
45. 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.
46. 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.
48. 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.
49. 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.
50. 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-i nterests 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).
52. 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
54. 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).
55. 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).
65. 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).
66. 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.
68. 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.
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