Concurrence Sàrl v Samsung Electronics France SAS and Amazon Services Europe Sàrl.
Date: 2016-12-21
25


As a preliminary point, it must be noted that Article 5(3) of Regulation No 44/2001 must be interpreted independently, strictly and that the expression ‘place where the harmful event occurred or may occur’ in that provision 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 (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 72 and the case-law cited).
26


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 connecting 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 of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 73 and the case-law cited).
27


In matters relating to tort, delict or quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 74 and the case-law cited).
28


Identification of one of the connecting factors recognised by the case-law set out in paragraph 25 of the present judgment must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability of the person sued do in fact exist, so that only the court within whose jurisdiction the relevant connecting factor is situated may validly be seised (see judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 75 and the case-law cited).
30


As concerns that connecting factor, the Court has already stated not only that the place where the damage occurred 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 of 22 January 2015, Hejduk, C‑441/13, EU:C:2015:28, paragraphs 29 and the case-law cited).
31


Thus, where the protection granted by the Member State of the place of the court seised is applicable only in that Member State, that court only has jurisdiction to determine the damage caused within the Member State in which it is situated (see, to that effect, judgments of 3 October 2013, Pinckney, C‑170/12, EU:C:2013:635, paragraph 45, and of 22 January 2015, Hejduk, C‑441/13, EU:C:2015:28, paragraph 36).
33


Second, it is on the territory of that Member State that the alleged damage occurs. Indeed, in the event of infringement, by means of a website, of the conditions of a selective distribution network, the damage which the distributor may claim is the reduction in the volume of its sales resulting from the sales made in breach of the conditions of the network and the ensuing loss of profits.
34


In that regard, the fact that the websites on which the offer of the products covered by the selective distribution right appears operate in Member States other than that of the court seised is irrelevant, as long as the events which occurred in those Member States resulted in or may result in the alleged damage in the jurisdiction of the court seised, which it is for the national court to ascertain (see, to that effect, judgment of 5 June 2014, Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 57 and 58).
35


In the light of all the foregoing, the answer to the question referred is that Article 5(3) of Regulation No 44/2001 must be interpreted, for the purpose of conferring the jurisdiction given by that provision to hear an action to establish liability for infringement of the prohibition on resale outside a selective distribution network resulting from offers, on websites operated in various Member States, of products covered by that network, as meaning that the place where the damage occurred is to be regarded as the territory of the Member State which protects the prohibition on resale by means of the action at issue, a territory on which the appellant alleges to have suffered a reduction in its sales.