EUPillar NV Luxafoil v BV De KOCK Glasfolie - A/12/0904

Summary

The plaintiff sues the defendant for damages for misleading advertisements and unfair trade practices. The plaintiff has a business in sunblinds. In 2011, the plaintiff launched a television ad campaign. Shortly afterwards, anonymous messages started popping up on several internet fora (clubvan30.nl, bouwinfo.be and trosradar.nl), discrediting the plaintiff. The plaintiff accuses the defendant of having posted these messages. The defendant contests the international jurisdiction of the court over the facts of the case which happened in the Netherlands. In the defendant’s view, the court’s jurisdiction is limited to the messages on the website bouwinfo.be, thereby excluding the Dutch websites trosradar.nl and clubvan30.nl. Art. 5(3) Brussels I Regulation grants jurisdiction, in matters relating to tort, to the courts for the place where the harmful event occurred or may occur. It is assumed that torts committed over the internet fall within the definition given by the ECJ in the Kalfelis case (“The term 'matters relating to tort, delict or quasi-delict' must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a 'contract' within the meaning of Article 5(1)”). In the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. The place where a person has the centre of his interests corresponds in general to his habitual residence. The alleged infringement originates in The Netherlands, but ends in Belgium, more precisely in Sint-Niklaas, where the plaintiff has its registered office and suffers the consequences of the alleged unfair trade practices. Short critique The Dendermonde Commercial Court correctly applies the Kalfelis (C-189/87), Bier v. Mines de Potasse (C-21/76), eDate and Martinez (Joined Cases C-509/09 and C-161/10) cases of the ECJ.