PIL instrument(s)

Case number and/or case name

BGH, 28.6.2012 – I ZR 35/11

Details of the court

Germany, Third Instance

Articles referred to by the court

Date of the judgement

27 June 2012

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff is a photographer who took pictures of the defendant’s hotel in France (Nice). The parties had agreed on that point. The defendant who paid for this work used these photos in a brochure about the hotel as well as on the hotel’s website. A few years later the plaintiff saw his photos in an architecture magazine in a book store in Cologne used by the publishing company ‘Phaidon’ based in Berlin. The photos also were used by the publisher ‘Taschen’ based in Cologne. The plaintiff claims that the defendant infringed his copyright on the photos by submitting them to others. He claims for omission, for information and for declaration saying that the defendant is liable in damages. The Regional Court and the Higher Regional Court confirmed the international jurisdiction of German courts. The Federal Court of Justice came to the conclusion that the proceedings have to be stayed because in order to obtain a preliminary ruling concerning the interpretation of Art. 5 no. 3 Brussels I. Among to the court the place where the tort was committed by the principal (here: the publishing company ‘Phaidon’: Germany) could also be relevant for the question where the tort was committed by the participant (here: the defendant). It stated that the same consideration could be applied to the aspect of the place where the harm arose. The present case concerns the interpretation of an act of a European institution in terms of Art. 267 TFEU. The interpretation that is preferred by the court would mean an extension of the Regulation’s scope of application. Also, the court argued that Art. 5 No 3 Brussels I aimed for a proper administration of justice and included the assumption that the regional responsible court is able to consider the tort and the corresponding extent of the damage in the best way. This is settled case law (see CJEU judgment Shevill, C-68/93). The national court aims for a transmission of these principles to the present case. Therefore it is in view of Art. 267 TFEU reasonably required submitting the issue to the CJEU.