CJEU Rules on Distinction between Tort, Contract and Property under the Rome Regulations

On 24 September 2026, the CJEU ruled in Case C‑176/25 [Steizer] on the respective scopes of the lex loci delicti and the lex contractus in a claim of infringement of copyrights where the validity of the assignment of the copyright the plaintiff was challenged on a formal validity ground.

The most interesting part of the case, however, was the argument on the relevance of the law governing the proprietary aspects of the assignment, as already noted by Geert van Calster.

Background

The plaintiff, BT, was a German distributor of accessories for motor vehicles through the internet. The plaintiff hired on the basis of an oral agreement a Polish photographer to take pictures of the accessories for the purpose of using them online.

BT later discovered that the defendant, UI, used the said pictures for marketing purposes online. BT initiated proceedings in a German court claiming infringement of the IP rights that it had over the pictures.

BT prevailed at first instance, but UI appealed and argued that as the contract between the plaintiff and the photographer was governed by Polish law, which required that the assignment of the IP rights to BT be in writing, BT did not hold the relevant rights and thus could not claim that they had been infringed. BT replied that the applicable law to the assignment should be determined under the Rome II Regulation. The Court of appeal of Düsseldorf referred the matter to the CJEU.

Tort and Contract

The CJEU starts its reasoning with the analysis of the claim of infringement of IP rights, which is straightforward. In the absence of previous relationship between the plaintiff and the defendant, the Court characterises the claim as tortious, and thus as falling within the scope of the Rome II Regulation. More precisely, it is a claim of infringement of IP rights, which is thus governed by Article 8(1) of the Regulation and the lex loci protectionis.

The core of the dispute was the law applicable to the defence raised by the defendant, which claimed that the plaintiff did not hold the rights on which it based its claim. The issue was one of formal validity of the assignment of the IP rights, as Polish law requires that such assignment be in writing, and likely governed the provision of services of the Polish photographer to the German plaintiff.

The German plaintiff argued that, in the context of an action for infringement of IP rights, the issue of the formal validity of the assignment of the IP rights should be governed by the same law as the law governing the protection of the IP rights. One argument made by the plaintiff in support of that proposition was that it would be simpler to apply the same law to the entire dispute than different laws (see the Conclusions of AG Emiliou, para. 54).

As pointed out by AG Emiliou, this view ignored the existence of different choice of law rules applicable to different issues, and it more generally ignored the issue of the preliminary question. The validity of the contract was a preliminary question in a dispute mainly concerned with the infringement of IP rights.

The legal treatment of preliminary questions in PIL was debated, but only, to my knowledge, to determine whether the forum should apply its  own choice of law rule to the preliminary question, or the choice of law rule of the legal order designated by the choice of law rule for the main question. Needless to say, this debate had no practical consequences in the present case, since the choice of law rules are the same in Germany and Poland, and the choice of law rule for the main issue designated the law of the forum anyway.

Unsurprisingly, therefore, the CJEU concludes that the issue of the formal validity of the assignement was a contractual one, to be determined pursuant to the Rome I Regulation, and not the Rome II Regulation.

It is interesting to note that the operation of Article 11 of the Rome I Regulation was not straightforward in this case. As noted by AG Emiliou, it is unclear whether the assignment contract had been concluded by both parties in Poland, or whether it could have been considered as a distance contract. This would have made a major difference, since German law could have validated the contract under Article 11(2) in the second case scenario.

Contract and Property

The most interesting issue raised by the case was probably that of the distinction between contract and property.

The actual preliminary question was not so much whether the assignment of the IP rights was valid, but whether the plaintiff was actually the holder of those rights. The formal validity of the assignment was potentially relevant, but only if the assignment had erga omnes effect under the applicable law without further formalities. Even in that case, the formal validity question was a preliminary question to the question of property: some sort of a super preliminary question.

The European Commission had expressly put the issue to the court, together with the plaintiff, by submitting the preliminary issue should not be governed by the Rome I Regulation, but rather by national choice of law rules.

As Geert predicted, the judgment is a bit disappointing. The answer of the court is that the issue of the formal validity of the assignment is a contractual issue, because the issue

“is not a matter relating to the substance itself of the copyright or its intrinsic characteristics, nor is it a matter relating to the right of ownership over the protected work. (§ 49)“

This answer suggests that the scope of the law governing proprietary rights is limited to the determination of the content of such rights. But it is hard to imagine that the law governing a given proprietary right would not govern at least the proprietary aspects of the transfer of such right.

AG Emiliou introduced a more subtle distinction between the contractual and the proprietary aspects of the transfer of proprietary rights and suggested that, in the case at hand, the claim was only concerned with the contractual aspect of the assignment, namely the formal validity of the contract of assignment, but not with its proprietary effects, because the defendant only raised the invalidity of the contract. He relied on a distinction with which Francophone lawyers will be familiar, the distinction between inter partes effect and opposability of the transfer to third parties.

It seems, however, that the debate before the Court had been framed from the perspective of German property law and its separation principle. AG Emiliou understood the said principle as potentially meaning that the formal requirement for the assignment could apply to both the obligational act and the act of disposal of property. He concluded then that this analysis was rejected by the European lawmaker when it adopted Article 14 of the Rome I Regulation which relies on the distinction between inter partes effect (governed by Rome 1) and opposability/third party effects (outside of its scope).

The CJEU sought an argument in support of the application of Rome I in Article 12 of the Rome I Regulation, which provides that the lex contractus governs the nullity of contracts. One wishes it had rather explained which conclusion could be drawn from Article 14.