EUPillar C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others (Third Chamber) [2011] ECR I-12533

Summary

This case on Art 6(1) of Brussels I was referred to the CJEU in proceedings between Ms Painer (a freelance photographer) and five newspaper publishers (one established in Austria and the rest in Germany) concerning their use of photographs of Natascha K. Painer, in the course of her work, took photographs of Natascha K. (then aged 10). Painer labelled the photographs she produced with her name. Painer sold the photographs for the price of the prints without conferring on third parties any rights over them and without consenting to their publication. After Natascha K. was abducted, the competent security authorities launched a search appeal in which the contested photographs were used. Following Natascha K’s escape from her abductor and prior to her first public appearance, the defendants published the photographs in their newspapers, magazines and websites without indicating the photographer’s name, or indicating a name other than Painer’s as the photographer. They claimed that they had received the photographs from a news agency without Painer’s name being mentioned or with a name other than Painer’s name being indicated as the photographer. Several of those publications also published a photo-fit portrait, created by computer from the contested photographs. Painer sought an order in Austria that the defendants immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the photo-fit. She also applied for an order against the defendants for a payment of the remuneration and damages for her loss. In addition, she applied for an interlocutory injunction on which a ruling was given by the Austrian Supreme Court, by applying the relevant national rules, that the defendants did not need Painer’s consent to publish the photo-fit. The referring court asked the CJEU on the applicability of Art 6(1) of Brussels I where the actions brought against different defendants have identical legal bases. Considering Recital 11, the fact that Art 6(1) is a special jurisdiction rule and its interpretation in C 98/06 Freeport, the CJEU observed that the provision must be strictly interpreted. However, it noted that it is not apparent from the wording of Art 6(1) that the actions against different defendants should have identical legal bases. As regards its purpose, by taking Recitals 12 and 15 into account, the CJEU observed that the rule in Art 6(1) first meets the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately. Secondly, by citing 189/87 Kalfelis and C 51/97 Réunion européenne and Others, it stated that that rule cannot however be applied so as to allow an applicant to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of those defendants is domiciled. It affirmed its interpretation in Freeport that in assessing whether there is a connection between different claims, that is to say a risk of irreconcilable judgments if those claims were determined separately, the identical legal bases of the actions brought is only one relevant factor among others and thus it is not an indispensable requirement for the application of Art 6(1). It thus held that a difference in legal basis between the actions brought against the various defendants, does not, in itself, preclude the application of Art 6(1), provided however that it was foreseeable by the defendants that they might be sued in the MS where at least one of them is domiciled. It added that is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately. AG Trstenjak proposed some reforms to the CJEU’s case law on Art 6(1) but sadly these are not discussed or followed by the Third Chamber.