Is the Shevill Doctrine Still Up to Date? Some Further Thoughts on CJEU’s Judgment in Hejduk (C-441/13)
By Kristina Sirakova. Kristina is currently a research fellow at the MPI Luxembourg. In this post she takes up again the CJEU’s Hejduk case and provides her (to my mind, quite interesting) insights into the outcome.
After Jonas Steinle commented on the judgment from a wider perspective, the CJEU’s Hejduk case is to be addressed with regard to its ambiguous outcome. On the one hand, the CJEU blindly follows its controversial decision in Pinckney (C-170/12) missing the opportunity to relativize it. On the other hand, the fact that the Court does not adopt a restrictive interpretation of Article 5 (3) of the Brussels I Regulation as proposed by AG Cruz Villalón is to be welcomed.
In his Opinion of 11 September 2014, AG Cruz Villalón very precisely elaborated the core question that arises in the case at hand: How does Hejduk fit into the scheme of eDate Advertising & Martinez (C-509/09 and C-161/10), Wintersteiger (C-523/10) and Pinckney (para. 21 of the Opinion)? According to the AG, none of the three criteria – the center of the alleged victim’s interests, the direction of the website to a specific Member State and the principle of territoriality – should be applied. Therefore, he rather proposed to restrict the scope of Article 5 (3) of the Brussels I Regulation to the place where the tort was committed.
This would be very often the place where the infringer/defendant is established. Therefore, whether jurisdiction is based on Article 5 (3) or Article 2 (1) of the Brussels I Regulation would most likely be irrelevant. This result contradicts the ratio of Article 5 (3) which aims at guaranteeing a jurisdictional balance. The restrictive approach effectively creates a risk that the provision could be deprived of its substance in those cases as the claimant would be entitled to bring his action only before the court at the place of the infringer’s seat irrespective of where the damage occurred.
Fortunately, the Court decided not to follow the restrictive approach. Instead, it applied the principle of territoriality which has already been the key criterion in Wintersteiger with regard to a national trade mark and in Pinckney concerning copyrights. It should be noted, however, that the principle of territoriality also bears some risks (see Opinion of AG Cruz Villalón in Hejduk, paras. 33-40; Opinion of AG Jääskinen in Coty Germany (C-360/12), para. 68; Husovec, IIC 2014, 370). Especially when the mere access to the website is sufficient to establish jurisdiction this opens up the floodgate for forum shopping. The only limitation set by the CJEU – as Jonas Steinle correctly points out in his post – is the mosaic principle created in Shevill (C-98/93).
The mosaic principle has been developed twenty years ago for an offline infringement of personality rights where the harm caused in each Member State could be easily quantified. However, this is not the case with infringements of rights committed via the internet. Here, the application of the mosaic principle causes more practical problems than it solves, therefore it might be worth reconsidering it.
There is thus a need for a criterion limiting the EU-wide jurisdiction which the CJEU created in Pinckney and now in Hejduk. The answer might be eDate Advertising & Martinez (as suggested by Professor Burkhard Hess in his speech ‘The CJEU’s Decision in eDate Advertising and Its Implementation by National Courts’ at the Conference on ‘The Protection of Privacy in the Aftermath of the Recent Judgments of the CJEU – eDate Advertising, Digital Rights Ireland and Google Spain’ hosted at the Max Planck Institute Luxembourg on 29 September 2014, the proceedings of which will be published shortly).
Admittedly, the center of the alleged victim’s interests has also been developed for an infringement of personality rights which, however, occurred in a case of an online infringement. Furthermore, it has to be stressed that personality rights and copyrights share many similarities. They are both ubiquitous rights, the nature of which is inextricably linked to the person itself and are protected in every Member State without the need for registration.
The main advantage of that approach would be, besides creating a balance between a too restrictive and a too extensive interpretation of Article 5 (3) of the Brussels I Regulation/ Article 7 (2) of the Recast, that the claimant would be able to claim the whole damage at one place and would not be forced to initiate various proceedings in order to receive compensation for the same infringement which is almost impossible to be quantified.
Thank you very much for this post. I think that the author was very clear in its explanations. I agree at all with all the importants points. Namely, with the last one, because is the only way the claimant could have to avoid a bad forum shopping and problems of enforcement and also of recognition. Internet has other features, therefore, the infringements committed by this means if should be treat in a different way.
I struggle to see what is wrong with the CJEU’s decision in Hejduk, and the line of cases that preceded it and which it simply followed in this case. Indeed, given that line of authority, I cannot see why the CJEU thought an Advocate General’s Opinion was necessary, particularly when it thought it redundant in the more difficult case of Brogsitter (a procedural decision which resulted in one of the more confusing and unhelpful Regulation references of modern times). The CJEU is right to insist, for the purposes of applying Art 7(2), on a connection between the dispute and the forum Member State consisting either of location of the defendant’s allegedly wrongful conduct or of consequences of that conduct actionable under the (territorially limited) intellectual property law of the forum. Any broader interpretation would undermine the protection afforded to the defendant by Art 4 (Recital (15)) and the function of Art 7 as a narrow exception to that rule based on close connection and the efficient administration of justice (Recital (16)). It is not necessary to interpret Art 7 such that proceedings must always be capable of being brought in a single forum – universality of jurisdiction exists by virtue of Art 4 and (in many cases) the “event giving rise to damage” limb of Bier. To add another head of universal jurisdiction would not facilitate the administration of justice (other than to give the claimant the advantage of suing in another place more likely to be his home forum, again contrary to the objectives and spirit of the Regulation) and would be incompatible with the requirement of a close connection. eDate Advertising is a lamentable decision, which is wholly out of keeping with the structure, objectives and wording of the Regulation (see my note on this site). Even if, however, we are forced to take it as an accurate representation of the law regarding claims for online violation of privacy and personality rights, it is surely not right to say that intellectual property rights and personality rights are two peas in a pod. Copyright is ubiquitous only in the sense that it attaches to the right holder wherever he or she may be in the world, but that can be said of all rights correlating to obligations and hardly advances the argument. It attaches not to the mental processes involved in the creation of original works, but to their manifestation. It protects the exploitation of the copyright work within a particular territory, and (along with other intellectual property rights) is notable for the near universal acknowledgement of its territorial (not ubiquitous) character. A claim for breach of Ruritanian copyright in a particular work is, of course, related to a claim for breach of Arcadian copyright in the same work, but the former claim cannot be said to have a close (or any direct) connection to the Arcadian legal system. Substituting French and German for the above example, the fact that the claimant is domiciled in France and complains of breach of French copyright law does not provide a reason why the French courts should have jurisdiction under the Regulation over a German domiciliary with respect to violation of German copyright by acts in Germany (or elsewhere in the EU). That is the antithesis of the way in which the Regulation works. On the other hand, the same facts provide a very good reason why the French court should have jurisdiction over the French copyright claim, as the CJEU has emphasised.
In the final analysis, the CJEU’s approach here is also beneficial in avoiding a schism between the “real” and “online” worlds, a distinction that is hard to draw and often artificial (the actors are human, after all). If only the CJEU had avoided the temptation in eDate to treat the internet as changing everything, we would be in a much more certain place today.