EUPillar Zwab Mediashop SARL v. Auvibel CVBA

Summary

Auvibel is a collective rights management company for the private copying of protected works. It is responsible for the collection and distribution of the payments for copying sound and audiovisual works for personal use. The payments are made to Auvibel by manufacturers, importers or intra-EU purchasers of media that can be used for copying sound and audiovisual works or of devices that make such copying possible when those media and devices are put on the market in Belgium. (See www.auvibel.be) The appellant sells CD-R’s and DVD-R’s online via its website www.zwab.net. The appellant directs its activities to Belgian clients, among others. The home page of the website mentions that the delivery method it uses for Belgium, the delivery costs and the Belgian phone number of the appellant. The orders are executed in Luxembourg. The appellant does not make any payments to Auvibel and it considers that it doesn’t have to. In first instance, the appellant had been condemned to pay contributions to Auvibel subject to a penalty payment of 2,000 EUR per infringement. On appeal, the appellant contests the international jurisdiction of the Belgian courts. The Brussels Court of Appeal agrees with the Court of First Instance that it has jurisdiction on the basis of Art. 86 of the Belgian Code of Private International Law. This Art. 86 governs the jurisdiction over intellectual property cases. The Court of Appeal adds for the sake of completeness that the Belgian courts in any event have jurisdiction on the basis of Art. 5(3) Brussels I. Auvibel’s claim is based on the infringement of Art. 55 of the Belgian Act of 30 June 1994 concerning authors' rights and neighbouring rights. That is a matter relating to tort. The damage occurs in Belgium, since the appellant sells CD-R’s and DVD-R’s to end users established in Belgium, without declaring these sales nor paying the necessary contributions. Short critique The Court of Appeal accepts its jurisdiction on the basis of Art. 86 Belgian Code of Private International Law, and then, “for the sake of completeness”, it states that it also has jurisdiction on the basis of Art. 5(3) Brussels I Regulation. Of course, it should have been the other way around. The EU PIL Regulations take precedence over national PIL rules. The Court of Appeal could also have furnished its judgment by referring to ECJ cases where the Court of Justice confirmed that the “place where the harmful event occurred” also covers the place where the damage took place (most notably, Bier v. Mines de Potasse d’Alsace, case 21/76).