Case law Developments in PIL

October 2022 at the Court of Justice of the European Union

All private international law events at the Court of Justice this month will take place on the same day, namely on 20 October.

To begin with, we will get to know AG Szpunar’s opinion on C-423/21, Grand Production.

The Oberster Gerichtshof (Austria) has lodged a request for a preliminary ruling with two questions on Directive 2001/29/CE (on the harmonisation of certain aspects of copyright and related rights in the information society) alone, and another one on the combined interpretation of provisions of said Directive and of Article 7(2) of the Brussels I bis Regulation, in a claim for injunctive relief of worldwide scope:

I. Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC (…) to be interpreted as meaning that such communication is made by the direct operator (not established in the EU in this case) of a streaming platform, whereby that operator

– alone decides on the content and blacking out of TV programmes broadcast by it and implements them from a technical point of view,

– has sole administrator rights for the streaming platform,

– an influence which TV programmes can be received by the end user via the service, but cannot influence the content of the programmes,

– and is the sole point of control as regards which programmes and content can be watched in which territories and when,

where, in each case,

– the user is provided with access not only to broadcasting content whose online use has been authorised by the respective rightholders, but also to protected content for which rights clearance has not been obtained, and

– the direct operator of the streaming platform is aware that its service also enables the reception of protected broadcasting content without the consent of the rightholders by virtue of the fact that the end customers use VPN services which give the impression that the IP address and device of the end customers are located in areas for which the consent of the rightholder has been obtained, but

– the reception of protected broadcasting content via the streaming platform without the consent of the rightholders was in fact possible for several weeks even without VPN tunnelling?

II. If Question I is answered in the affirmative:

Is the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29/EC to be interpreted as meaning that such communication is also carried out by third parties (having, in this case, their registered offices in the EU) which are related, contractually and/or under company law, to the platform operator described in Question I., and which, without themselves having any influence on the blackouts and on the programmes and content of the broadcasts brought to the streaming platform,

– advertise the operator’s streaming platform and its services, and/or

– offer trial subscriptions to customers that automatically end after 15 days, and/or

– support the customers of the streaming platform as a customer service provider, and/or

– offer on their website paid subscriptions to the streaming platform of the direct operator and then act as the contracting partner of the customers and as the recipient of payment, whereby the paid subscriptions are created in such a way that an express reference to the fact that certain programmes are not available is made only if a customer explicitly indicates at the time of conclusion of the contract that he or she wishes to see those programmes, but, if customers do not express that wish or specifically enquire about such programmes, they are not informed of that fact in advance?

III. Are Article 2(a) and (e) and Article 3(1) of Directive 2001/29/EC, read in conjunction with Article 7(2) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that, in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having competence to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the infringed author?

In a nutshell, the third question seeks clarification regarding the principle of territoriality, in accordance with which the protection claimed by an applicant under Austrian copyright law relates only to Austria, and the applicant can therefore only claim injunctive relief which is limited to Austria.

Two further opinions are scheduled on the same day, one from AG Szpunar and the other from P. Pikamäe.

In C-291/21, Starkinvest, the Tribunal de première instance of Liège is asking the Court of Justice to interpret Articles 4, 7 and 8 of Regulation No 655/2014 establishing a European Account Preservation Order procedure.

In the case at hand, in 2015 the Court of Appeal of Liège had ordered a company incorporated under Irish law, subject to a penalty payment, to stop committing trademark infringements. Some years after the judgement was handed down and (allegedly) served, the claimant issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Now, he has asked a first instance court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in the French bank account of the defendant. The claim is based on penalty payments alleged to be due from the defendant pursuant to the 2015 judgment delivered by the Court of Appeal of Liège.

The national court refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 (…)?

2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 (…) where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?’

In case C-393/21, Lufthansa Technik AERO Alzey, AG Pikamäe has been asked to give an opinion on a request for a preliminary ruling by the Lietuvos Aukščiausiasis Teismas (Lithuania). Four out of five questions concern the notion of ‘exceptional circumstances’ under Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. The fifth question focuses on the relationship between Regulation Brussels Ibis and Regulation No 805/2004 as regards the suspension of enforcement proceedings when the enforceability of a court decision is suspended in the Member State of origin:

‘1.  How, taking into account the objectives of Regulation No 805/2004 (…), inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?

2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

4. Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

5. Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 (…) to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

The facts of the case can be summarized as follows.

In enforcement proceedings, a bailiff operating in Lithuania is executing an order of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany), on the basis of which an enforcement order and a European Enforcement Order certificate had been issued regarding the recovery of a debt of the debtor for the benefit of the party seeking enforcement.

The debtor applied to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for withdrawal of the European Enforcement Order certificate and termination of enforcement. It claimed that the certificate had been issued unlawfully because the procedural documents of the Local Court, Hünfeld, had not been duly served on it. He also requested the bailiff to stay the enforcement proceedings in the Republic of Lithuania until its claims for withdrawal of the European Enforcement Order certificate and termination of enforcement had been examined in a final procedural decision of the court in Germany.

The bailiff refused to stay the enforcement proceedings, on the basis that the Lithuanian Code of Civil Procedure do not provide for a stay of the enforcement of a final judgment on the ground that claims for withdrawal have been made before a court of the State of origin. The District Court of Kaunas, Lithuania, before which an action regarding this refusal was brought, did not upheld the action. The Regional Court of Kaunas, exercising appellate jurisdiction, set aside the order of the court of first instance, upheld the action brought by the debtor and ordered the stay of the enforcement proceedings pending a full examination of the debtor’s claims by a final judgment of the German competent court.

The other party brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania).

Finally, the Court of Justice will hand down its judgment in case C-604/20, ROI Land Investments, also on 20 October. The Bundesarbeitsgericht (Germany) has requested the interpretation of rules on jurisdiction under the Brussels I bis Regulation, as well as of conflict of law provisions in Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I):

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 (…) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?

2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?

3. If the first question is answered in the negative and the second question in the affirmative:

(a)  Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)  If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

  1. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a)   Is Article 6(1) of Regulation (EC) No 593/2008 (…) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b)   If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

I reported here on the facts of the case. Interestingly, AG Richard de la Tour’s opinion of April 28, 2022, not yet available in English, offers the Court two possibilities. My translation for the first one would be:

1) Article 21, sections 1 and 2, of Regulation (EU) No. 1215/2012 (…) must  be interpreted in the sense that a natural or legal person, whether or not domiciled in the territory of a Member State, with whom an employee has concluded, not his employment contract, but an agreement that forms an integral part of said contract, by virtue of which said person is responsible for fulfilling the obligations of the employer towards the employee, can be classified as “employer” when it has a direct interest in the correct execution of the contract. The referring court must assess the existence of this direct interest globally, taking into account all the considerations of the case at hand.

2) Article 6(1) of Regulation No 1215/2012 must be interpreted as meaning that the application of the jurisdictional rules of national law must be excluded when the conditions of application of Article 21(2) of said Regulation are met.

In the event that the Court of Justice considers the dispute does not fall within the scope of application of Article 21(2) of Regulation No. 1215/2012, Mr. Richard de la Tour suggests answering that:

3) Article 17, paragraph 1, of Regulation No. 1215/2012 and article 6, paragraph 1, of Regulation (EC) No. 593/2008, must be interpreted in the sense that the concept of “professional activity” includes work for another’s account in an employment relationship.

4) Article 17(1) of Regulation No. 1215/2012 and Article 6(1) of Regulation No. 593/2008 must be interpreted as meaning that a letter of comfort that forms an integral part of a employment contract, by virtue of which a person is responsible for fulfilling the obligations of the employer towards the worker, is included in the concept of “professional activity”.

The decision will be delivered by the 3rd Chamber with M. Safjan reporting, sitting together with Ms. Jürimäe, M. Jääskinen, M. Piçarra and M. Gavalec.

Legal Secretary CJEU Full Professor PIL University of Santiago de Compostela (Spain) Senior research fellow MPI Luxembourg (on leave) Usual disclaimer applies

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