Referring court and Member State
Germany, First Instance, Landgericht Regensburg
Summary
This case concerns the interpretation of Arts 4(1), 5(3), 26 and 34(2) of Brussels I. It was referred to the CJEU in proceedings between Ms G and Mr de Visser concerning an action for liability arising from the uploading onto an internet site of photographs in which she appears partly naked. Mr de Visser was the owner of a domain name and ran the internet site in question with an address and a postal address in the Netherlands. Ms G was interested in the internet site and the services offered by Mr de Visser and contacted him for that reason. Subsequently, Mr de Visser took her photographs in Germany to be used for a party. Ms G never agreed that those photographs should be published and putting those photographs online was never discussed with her. After learning of the online display of the photographs, she brought proceedings in Germany. Although there were many factors indicating that the defendant was in the EU, that was not absolutely certain and the court referred some questions to the CJEU, including the applicability and interpretation of Brussels I in this case. As regards Brussels I, the referring court asked whether Art 4(1) of Brussels I precludes the application of Art 5(3). The CJEU referred to C-327/10 Hypoteční banka where it had found that where the domicile of a defendant who is a MS national is unknown, the application of the uniform jurisdiction rules of Brussels I meets the essential requirement of legal certainty and the objective, pursued by Brussels I, of strengthening the legal protection of persons established in the EU, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued. Citing para 42 of C-327/10 Hypoteční banka, it continued that the expression ‘is not domiciled in a MS’, used in Art 4(1) means that application of the national rules rather than the uniform rules of jurisdiction is possible only if the court seised of the case holds firm evidence to support the conclusion that the defendant, a citizen of the EU not domiciled in the MS of that court, is in fact domiciled outside the EU. Accordingly, it observed that in the absence of such firm evidence, the international jurisdiction of a court of a MS is established under Brussels I when the conditions for application of the jurisdiction rules laid down therein are met. The CJEU stated that this analysis is also valid as to Art 5(3). It accordingly found that Art 4(1) of Brussels I does not preclude the application of Art 5(3) to an action for liability arising from the operation of an internet site against a defendant who is probably an EU citizen but whose whereabouts are unknown if the court seised of the case does not have firm evidence to support the conclusion that the defendant is in fact domiciled outside the EU. The CJEU also ruled that Art 26(2) of Brussels I must be understood as requiring a court seised of a matter within the scope of that Regulation not to issue a default judgment unless it is satisfied “that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant”. The interpretations in this case were consistent with the CJEU’s previous decision, taken by the same five judges in the First Chamber, in C-327/10 Hypoteční banka. However, it took 21 months for the CJEU to give a ruling in this case.