Jurisdiction to Enjoin a Foreign Website in the EU, Part II
On January 15th, 2009, the same division of the court ruled on another injunction issued in the same case against foreign based defendants. In the first case, the injunction was addressed to the website itself, Zeturf Ltd. This time, it was addressed to the companies hosting the site, Bell Med Ltd and Computer Aided Technologies Ltd.
The issue before the court was again whether the French court had jurisdiction to settle a financial penalty accompanying the injunction. The penalty was a French astreinte, that is a sum of money that the defendant must pay per day of non compliance with the injunction. At this stage of the proceedings, the defendants challenged the jurisdiction of the French court to calculate the amount owed to the plaintiff and order its payment (liquider l’astreinte), not the jurisdiction of French courts to issue the injunction and the threat of the penalty in the first place.
As in the first case, the Cour de cassation answered that the French court had jurisdiction as the court of the place where the injunction was to be performed. Trial judges had found that the injunction was to be performed in France (see the end of my previous post on this).
This is pretty much what the court had ruled in its first decision. But this time, it gave a legal basis: both article 22-5 of the Brussels I Regulation and the French rule granting international jurisdiction in enforcement matters to the court of the place of the enforcement (art. 9, para. 2, of French Decree of July 31st, 1992).
This is a puzzling decision: one wonders how both article 22 of the Brussels I Regulation and any provision of French law could found the jurisdiction of French courts at the same time.
If one forgets article 9 of the French 1992 Decree, the judgment is interesting because it decides that the liquidation of an astreinte belongs to enforcement matters for the purpose of the European law of jurisdiction. What about the issuance of an injunction under penalty of an astreinte?
If one were English and took one’s cue from the Masri cases, one would simply say that if the French court had such jurisdiction over the merits, sufficient to allow it to find that there was a wrong and to make the original order, in the first place, it has all the jurisdiction it needs to make the orders which are necessary or desirable to give effect to its judgment in the second place.
Fair enough, but if “giv[ing] effect to its judgment” means enforcing it (which, I would argue, it should not always mean), then the French court must be limited by Article 22-5 of the Regulation.
The issuing of an injunction under the penalty of forfeiting an ‘astreinte’ cannot be considered as ‘enforcement’. The ‘liquidation’ of the astreinte can, because the ‘juge d’execution’ (nomen est omen) ascertains that the injunction has not been complied with, that the astreinte is forfeited and the amount. The forfeit itself is considered as an enforcement according to French law and the law of the Benelux-countries. The Brussels I Regulation doesn’t say anything about forfeiting the astreinte (doesn’t define ‘enforcement’ at all), only the enforcement of a forfeited astreinte in another country bound by the regulation (art. 49).
I may agree with most of what you say, but it must be stressed that the traditional position of French scholars on the issuing of injunctions under astreinte is that it does belong to enforcement. In recent years, however, quite a few young scholars have argued to the contrary.