Peter Pinckney v KDG Mediatech AG.
Date: 2013-10-03
18. In that connection, it must be recalled that, according to settled case-law, the Court can decline to rule on a request 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 facts of the main action or to its subject‑matter, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C-11/07 Eckellkamp and Others  [2008] ECR I‑6845, paragraph 28 and Case C-259/12 Rodopi-M 91  [2013] ECR I-0000, paragraph 27).
19. The Court has also held that the justification for a request for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute (Case C-459/07 Elshani  [2009] ECR I-2759, paragraph 42).
23. In order to answer those questions, it must be recalled from the outset that the provisions of the Regulation must be interpreted independently, by reference to its scheme and purpose (Case C‑228/11 Melzer  [2013] ECR I-0000, paragraph 22).
24. By way of derogation from the fundamental principle laid down in Article 2(1) of the Regulation, attributing jurisdiction to the courts of the defendant’s domicile, Section 2 of Chapter II thereof makes provision for certain special jurisdictional rules, such as that laid down in Article 5(3) of that regulation ( Melzer , paragraph 23).
25. In so far as the jurisdiction of the court of the place where the harmful event occurred or may occur constitutes a rule of special jurisdiction, it must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by the Regulation ( Melzer , paragraph 24).
26. The fact remains that the expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of the Regulation 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 ( Melzer , paragraph 25).
27. In that connection, according to settled case-law, the rule of special jurisdiction laid down 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 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 ( Melzer , paragraph 26).
28. Since identification of one of the connecting factors recognised by the case-law, set out in paragraph 26 of the present judgment, is to enable the court objectively best placed to determine whether the elements establishing the liability of the person sued are present to take jurisdiction, only the court before which an action may properly be brought is the court within whose jurisdiction the relevant connecting factor is to be found (see, to that effect, Case C-133/11 Folien Fischer and Fofitec  [2012] ECR I-0000).
32. First, it is clear from that case-law that the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed (see, to that effect, Wintersteiger , paragraphs 21 to 24).
33. Second, the likelihood of the damage occurring in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State (see, Wintersteiger , paragraph 25).
34. Finally, it is clear from that case-law that, in accordance with the objectives set out in paragraph 27 of the present judgment, in order to attribute jurisdiction to a court to hear an allegation of infringement in matters of tort, delict and quasi‑delict, the identification of the place where the alleged damage occurred also depends on which court is best placed to determine whether the alleged infringement is well founded ( eDate Advertising and Martinez , paragraph 48 and Wintersteiger , paragraph 27).
35. In applying those principles, for the purpose of identifying the place where damage allegedly caused via the internet occurred, the Court has distinguished between infringements of personality rights and infringement of intellectual and industrial property rights.
36. Thus, the alleged victim of an infringement of personality rights by means of content placed online, which is protected in all the Member States may, on the basis that the harmful even occurred there, 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 (see, eDate Advertising and Martinez , paragraph 52). Furthermore, 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 alleged victim may choose to bring an action in one forum in respect of all of the damage caused ( eDate Advertising and Martinez , paragraph 48).
37. However, the allegation of an infringement of an intellectual and industrial property right, in respect of which the protection granted by registration is limited to the territory of the Member State of registration, must be brought before the courts of that State. It is the courts of the Member State of registration which are the best placed to ascertain whether the right at issue has been infringed (see, to that effect, with respect to national marks, Wintersteiger , paragraphs 25 and 28).
39. First of all, it is true that copyright, like the rights attaching to a national trade mark, is subject to the principle of territoriality. However, copyrights must be automatically protected, in particular by virtue of Directive 2001/29, in all Member States, so that they may be infringed in each one in accordance with the applicable substantive law.
40. In that connection, it must be stated from the outset that the issue as to whether the conditions under which a right protected in the Member State in which the court seised is situated may be regarded as having been infringed and whether that infringement may be attributed to the defendant falls within the scope of the examination of the substance of the action by the court having jurisdiction (see, to that effect, Wintersteiger , paragraph 26).
42. Thus, unlike Article 15(1)(c) of the Regulation, which was interpreted in Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof  [2010] ECR I-12527, Article 5(3) thereof does not require, in particular, that the activity concerned to be ‘directed to’ the Member State in which the court seised is situated.
43. It follows that, as regards the alleged infringement of a copyright, jurisdiction to hear an action in tort, delict or quasi-delict is already established in favour of the court seised if the Member State in which that court is situated protects the copyrights relied on by the plaintiff and that the harmful event alleged may occur within the jurisdiction of the court seised.
45. However, if the protection granted by the Member State of the place of the court seised is applicable only in that Member State, the court seised only has jurisdiction to determine the damage caused within the Member State in which it is situated.
46. If that court also had jurisdiction to adjudicate on the damage caused in other Member States, it would substitute itself for the courts of those States even though, in principle, in the light of Article 5(3) of the Regulation and the principle of territoriality, the latter have jurisdiction to determine, first, the damage caused in their respective Member States and are best placed to ascertain whether the copyrights protected by the Member State concerned have been infringed and, second, to determine the nature of the harm caused.