Case study on Torts, majority of tortfeasors and taking of evidence Cross-border civil litigation Project Using EU Civil Justice Instruments: Development of training materials and organisation of test seminars (Agreement No. JUST/2013/JCIV/AG/4686) This publication has been produced with the financial support of the Civil Justice Programme of the European Union. The contents of this publication are the sole responsibility of ERA and can in no way be taken to reflect the views of the European Commission.
Topic 1 Cross-border civil litigation Case study on Torts, majority of tort-feasors and taking of evidence 1 Case study D is a well-known, famous and popular French actress. She works in different places all over the world, notably the United Kingdom, Spain, Portugal, France and Germany. She owns a flat in Paris, France, where she has her domicile and habitual residence. During a vacation in her private house in Portugal, a journalist working for the B-publisher observes D secretly, takes a picture of her and composes the following article in Lisbon, Portugal, in his hotel room: Look at D in her bikini; she should be ashamed to show her body! All the fame and popularity seem to ruin her. She is not the pretty and charming woman she used to be. Next to the article is a picture of D, showing her in her bikini in the garden of her private house in Portugal. The journalist sends the article to the publisher B. The statutory seat of B is located in Berlin, Germany. B publishes the article, written in German and available in English, French and Portuguese on 15 February 2015 via its website. It is accessible from any country and is read by various persons in Germany, United Kingdom, Portugal and France. D feels insulted by the article. She claims that neither is there any truth to its content nor did she agree to the publication of her picture. Due to this article, an important contract for an advertisement starring D was cancelled, as she does not fit the clients expectations anymore. D feels that her right to personality has been infringed and wants to sue B for compensatory damages caused by the violation of her right to personality resulting in a loss of reputation in the countries where the article was read (Germany, Portugal, United Kingdom, and France). Yet she is unsure where she may bring such a proceeding. Question 1: Which courts have international jurisdiction for an action for compensatory damages for the violation of D s right to personality against B? Question 2: Assume that C, a publisher with his statutory seat in Rome, Italy, is a business partner of Publisher B. They are of the opinion that they should both benefit from this once of a lifetime opportunity. After B has written the article in Germany, C translates parts of the article into Italian, adds other pictures of D and new comments on her. Afterwards, he publishes it in Italian on his own website on the same day as B. As in the first case, D s advertisement contract is subsequently cancelled due to the articles (both the publications of C and B were causal to the cancellation). (a) D is outraged. She consults her attorney and asks if she can sue B and C together for recovery of her damages in Germany, as she does not want to fight on several fronts. (b) In addition, as she sees the risk of retaliating articles by B if she drags him into court,
further alienating her German fans, and at the same time the risk of being defeated by C if she sues him on his Italian home turf, she asks her attorney if she could also sue only C in a German court. The attorney tentatively answers to the affirmative on the ground that, under domestic German tort law, B and C would be regarded as joint tortfeasors, each of them responsible for the entire consequences of their act. Therefore, if there is a forum for the claim against B in Germany, so there is one for a claim against C. Will German courts accept their international jurisdiction for the action against C? Question 3: D is also involved in another legal process before the courts of the Netherlands. In this process she lodged an application for a witness hearing of Mr X. Mr X lodges an application before the same court for a letter of request so that he could be heard by a French-speaking judge in Belgium where he resides. His application is rejected on the basis of Article 176 I of the WBR (Dutch law), under which the Dutch judge who is to hear a witness who is resident abroad has the discretion but not the obligation to issue a letter of request. The judge is of the opinion that witnesses must in principle be heard by the court before which the substantive proceedings are pending and that, in the instant case, no special circumstances justify making an exception to this rule in favour of Mr X, particularly as it is opposed by D. A hearing in Belgium cannot be justified on linguistic grounds, as X will have the possibility of being assisted by an interpreter at the hearing in the Netherlands. X argues that Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (in the following Regulation No 1206/2001), in particular Article 1 (1) thereof, shows that a judge wishing to hear a witness who resides in another Member State must always, for that form of the taking of evidence, use the methods put in place by the Regulation. The court argues the judge would have the power to use the methods provided by his own national procedural law such as summoning the witness to appear before him. Who is right? 1 Developed by Prof. Dr. Gerald Mäsch, Chair for Private Law, Commercial and Business Law, Private International Law and Comparative Law and is Director of the Institute for International Commercial Law, University of Münster. Bettina Gausing, Doctoral student and research assistant at the Chair for Private Law, Commercial and Business Law, Private International Law and Comparative Law. Vanessa Goetz, Articled clerk in the Cologne Higher Regional Court district. 2
Question 1: International jurisdiction for the claim of D against B The common European choice of (tort) law rules of the Rome II Regulation do not apply to defamation cases, Art. 1 (2) g) Rome II. Consequently, each competent court resorts to its national conflict rules, possibly applying a different substantive law than the courts of another member State. Therefore, the question whether the defamed party has the choice between several courts in different countries (forum shopping), and if so, between which ones, gains great importance. A) Applicability of the Brussels Ibis Regulation The international jurisdiction is determined by the Brussels Ibis Regulation, if the publication of the newspaper article on the homepage of B falls within the Regulation s scope of application. I) Material scope of application The publication on the homepage of B might constitute a violation of D s rights to personality, which is a matter of tort 1 and thus a civil matter and does not fall within the derogations of Art. 1 (1) Brussels Ibis. Therefore, Brussels Ibis is applicable at its material level. II) Temporal scope As the article was published in February 2015, the Brussels Ibis Regulation is applicable in time, since D cannot but institute procedures against B after 10 January 2015 (Art. 81 and 66 (1) Brussels Ibis). III) Geographical scope of application As defendant B is domiciled in Berlin, Germany (if the defendant is a company, i.a. its statutory seat is deemed its domicile, Art. 63 (1) a) Brussels Ibis), and as the facts of the case are characterized by several foreign elements (e.g. the plaintiff s connections to France and Portugal), the case falls within the geographical scope of application. Brussels Ibis thus applies to the case. B) Exclusive jurisdiction The exclusive jurisdictions of Art. 24 Brussels Ibis and Art. 25 Brussels Ibis do not apply. C) General of jurisdiction 1 Cf. Case C-68/93 Fiona Shevill v. Presse Alliance SA. [1995] ECR I-415; Case C-509/09 and C- 161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v MGN Limited [2011] ECR I-10269. 3
Pursuant to Art. 4 (1) Brussels Ibis, the general place of jurisdiction is the defendant s domicile. As the statutory seat (Art. 63 (1) a) Brussels Ibis) of the Company B is located in Berlin, D has the opportunity to sue B in German courts, Art. 4 (1) Brussels Ibis. There are no indications that B s central administration (b) or principal place of business (c) are located in another country. D) Special jurisdiction in tort An (additional) international jurisdiction could be based on the provision on special jurisdiction in tort, Art. 7 (2) Brussels Ibis. According to Art. 7 (2) Brussels Ibis, a person domiciled in a Member State may be sued in another Member State in matters relating to tort in the courts for the place where the harmful event occurred or may occur. I) Matter relating to tort, delict or quasi-delict The publication of the article must constitute a tort, delict or quasi-delict. The CJEU applies a negative and autonomous definition: Tort, quasi-delict and delict cover all actions which seek to establish liability of a defendant and which are not related to a contract within the meaning of Art. 7 (1) Brussels Ibis. 2 Tort and contract are therefore construed as mutually exclusive alternatives, thus there is no overlap between (1) and (2). 3 In general, the concept of tort pursued by Art. 7 (3) Brussels Ibis is broad in scope. 4 Particularly, it covers not only situations where an individual has personally sustained damage, but also the undermining of legal stability by the use of unfair contract terms. 5 The listing of tort, delict and quasi-delict does not widen the scope of application, but is only due to linguistic denominations. 6 D brings an action against B for compensation for the violation of her rights to personality caused by the publication of the article on B s homepage. There is no contractual relationship between D and B. The publication on the homepage could constitute a violation of the rights to D s personality which is a tort in the sense of Art. 7 (2) Brussels Ibis. 7 II) Courts for the place where the harmful event occurred or may occur As a result, D can sue B in the courts of the place where the harmful event occurred or may occur. 2 Cf. Case C-167/00 Verein für Konsumenteninformation v. Karl-Heinz Henkel [2002] ECR I-8111 para 36. 3 Cf. Case C-189/87 Kalfelis [1988] ECR I-5565 para 16; Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 238; Staudinger/Leible, EuZPR, EuIPR (4 th edition 2016), Art. 7 Brüssel Ia-VO note 109. 4 Case C-21/76 Handelskwekerij G.J. Bier BV v. Mines de Potasse d Alsace SA [1976] ECR I-1735 para 15-19; Case C-167/00 Verein für Konsumenteninformation v. Karl-Heinz Henkel [2002] ECR I- 8111 para 42. 5 Case C-167/00 Verein für Konsumenteninformation v. Karl-Heinz Henkel [2002] ECR I-8111 para 42. 6 Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 244. 7 Cf. Case C-68/93 Fiona Shevill v. Presse Alliance SA. [1995] ECR I-415; Case C-509/09 and C- 161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v MGN Limited [2011] ECR I-10269. 4
There is no definition to be found in the Regulation of the place where the harmful event occurred. However, in a long line of decisions the CJEU has established that this place can be understood as either the place where the harmful event giving rise to the damage occurred (Handlungsort) or as the place where the damage occurred (Erfolgsort). 8 This is referred to as the principle of ubiquity. With its understanding, the CJEU took into account that the sense of Art. 7 (2) Brussels Ibis is to give a choice to the plaintiff between the general place of jurisdiction (Art. 4 (1) Brussels Ibis) and the special jurisdiction of Art. 7 (2) Brussels Ibis. In certain cases there is a particularly close link between the dispute and the court of jurisdiction. Concerning torts, both places can be particularly relevant to the questions of facts and of evidence. It would therefore not be pertinent to decide for either one and exclude the other one from the choice of the plaintiff. 9 Moreover, the place where the event giving rise to the damage occurred, will, in many cases, be found at the same place as the domicile of the defendant. Then the plaintiff s option to choose between Art. 7 (2) Brussels Ibis and Art. 4 (1) Brussels Ibis would in effect come to nothing which is contrary to the purpose of Art. 7 (2) Brussels Ibis. 10 In case these two places fall apart ( multi-state delict ), the plaintiff can choose between them. 11 If either the place where the harmful event giving rise to the damage occurred or the place where the damage occurred is to be found in a non-member State, Art. 7 (2) Brussels Ibis is still applicable although the choice of the plaintiff is limited to the places of event within the European Union (Kropholler/v.Hein, Europäisches Zivilprozessrecht [9 th edition 2011], Art. 5 EuGVO note 82; Staudinger, IPrax 2010, 140 [141]). 1) The place where the harmful event giving rise to the damage occurred ( Handlungsort ) There are two different events that could be seen as the event giving rise to the damage which is the cancellation of the contract due to the loss of reputation of D. On the one hand, the event of uploading the article on the homepage of B was causal to the spread of the article and brought it to public attention. It enabled anyone to take knowledge of the content of the article. This event took place in Germany. 8 Case C-21/76 Handelskwekerij G.J. Bier BV v. Mines de Potasse d Alsace SA [1976] ECR I-1735 para 15 ff.; 24,25; Case C-189/08 Zuid Chemie v. Philippo s Mineralenfabriek NV/SA [2009] ECR I- 6917 para 24; Case C-68/93 Fiona Shevill v. Presse Alliance SA [1995] ECR I-415 para 20. 9 Case C-21/76 Handelskwekerij G.J. Bier BV v. Mines de Potasse d Alsace SA [1976] ECR I-1735 para 8-12, 15-19; Kropholler/ v.hein, Europäisches Zivilprozessrecht (9 th edition 2011), Art. 5 EuGVO note 82. 10 Case C-21/76 Handelskwekerij G.J. Bier BV v. Mines de Potasse d Alsace SA [1976] ECR I-1735 para 20. 11 Case C-21/76 Handelskwekerij G.J. Bier BV v. Mines de Potasse d Alsace SA [1976] ECR I-1735 para 24 f. 5
On the other hand, the enquiries and the writing of the article took place in Portugal. In the chain of cause, this event was prior to the event of publication. According to the jurisdiction of the CJEU, in cases of violation of one s right to personality through print media, the causal place is the place of the statutory seat of the publisher, despite other places during the process of production and distribution, as the statutory seat of the publisher is the place where the article harming the victim s personality was spread. 12 Although in the present case B does not employ print media but the internet, the same understanding must apply here. 13 This understanding counteracts an endless expansion of possible places of action. 14 As the statutory seat of B is in Berlin, Germany, this is also the place where the harmful event giving rise to the damage occurred. The production of the article in Portugal therefore does not have any effect. 2) The place where the damage occurred ( Erfolgsort ) The place where the damage occurred is the place where the event giving rise to the damage produced its harmful effects upon the victim. 15 The determination of the place where the damage occurred creates difficulties especially in cases of violation of one s right to personality by the media. In its Shevill-decision 16 the CJEU held that in the case of defamation by means of a newspaper article distributed in several Member States the place where the damage is considered to comprise are all the places within the EU where the contribution harming the victim s personality was distributed and where the victim claims to have suffered injury to his reputation, meaning where the victim is known ( mosaic principle ; Shevill-doctrine ). However, the plaintiff s chance to sue is restricted before the court of the place of distribution and alleged injury as he can only claim the damage caused in this particular Member State, 17 resulting in the consequence that the plaintiff either claims his partial damage in all the states where damage was caused, or he decides to sue for the total damage in the state of the place where the event giving rise to the damage occurred (of course the plaintiff still has the option to bring his entire claim before the courts of the defendant s domicile). Even though this theory gives an advantage to the defendant and limits the choice of court of the plaintiff, a compromise between the conflicting interests had to be made in order to prevent a universal jurisdiction. According to the Shevill-doctrine of the CJEU, the place where the damage occurred can be any place within the EU where the article harming the personality of D was distributed and where D claims to have suffered injury to her reputation. Nonetheless, with the growing use of the internet as a publishing media, new questions arise. The worldwide access to the contribution allows theoretically any place in the world 12 Case C-68/93 Fiona Shevill v. Presse Alliance SA [1995] ECR I-415 para 24. 13 Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 52. 14 Musielak/Voit/Stadler, ZPO (12 th edition 2015), Art. 5 EuGVO af note 24a. 15 Case C-68/93 Fiona Shevill v. Presse Alliance SA. [1995] ECR I-415 para 28. 16 Case C-68/93 Fiona Shevill v. Presse Alliance SA. [1995] ECR I-415 para 33. 17 Case C-68/93 Fiona Shevill v. Presse Alliance SA. [1995] ECR I-415 para 33. 6
to be the place of distribution. In the present case, D could claim to be known all over Europe and as the article was accessible from any Member State, any court would have jurisdiction. In its edate-decision, the CJEU recognized that the placing online of content on websites is to be distinguished from the regional contribution of media such as printed matter in so far as the content may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the publisher. 18 Approaches to modify the theory were made e.g. requiring a special domestic connection to the forum state, either as a subjective criterion referring to the intention of the publisher, or as an objective criterion in the sense that a collision of conflicting interests between the applicant s interest in respect for his right to protection of personality and the operator s interest in the design of his website and in news reporting may actually have occurred or may occur in the State of the court seized. 19 Nevertheless, the CJEU stuck to its original doctrine: The principles remained untouched, the theory was only adapted. In addition to the possibilities of legal actions given by Shevill, the person having suffered an infringement of a personality right by means of the internet may bring an action in respect of all of the damage caused in the forum where the alleged victim has his centre of interests, as this will be the place where the publication usually has the worst effects. The centre of his interests corresponds in general to his habitual residence, but it may also be in another place if other factors such as the pursuit of a professional activity establish a particularly close link with this place. 20 This adaption is in accordance with the aim of predictability of the rules governing jurisdiction 21 also with regard to the defendant who is as the publisher in a position to know the centre of interest of the person that the content placed online is about. Therefore, the criterion of the centre of interest allows both, the applicant to identify the court in which he may sue, and the defendant to reasonably foresee before which court he may be sued. 22 18 Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 45 f. 19 Question for a preliminary ruling under Art. 267 TFEU of the German Bundesgerichtshof, court order of 10 November 2009, Az. VI ZR 217/08= GRUR 2010, 261 (263); decided in Case C-509/09 and C- 161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 24. 20 Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 48 f. 21 Cf. Case C-144/10 Berliner Verkehrsbetriebe BVG [2011] ECR I-3961 para 33; recital 15 and 16 of Brussels Ibis; Rauscher/Leible, EuZPR, EuIPR (4 th edition 2016), Art. 7 Brüssel Ia-VO note 130. 22 Case C-533/07 Falco Privatstiftung and Rabitsch [2009] ECR I-3327 para 22; Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 50. 7
Apart from this chance to claim all damages before one court, the plaintiff may still bring his action for partial damage before the courts of each Member State in the territory of which content placed online is or has been accessible. 23 Please note: Recital 16 Sentence 3 of Brussels Ibis underlines the importance of the predictability of the jurisdiction for the plaintiff concerning cases of infringement of the right to personality through the internet. It is doubtful if the edate decision can lead to such clarity (v.hein, RIW 2013, 97 [100]). Yet, as the Rome-II Regulation might be amended and then include a conflicting rule concerning the infringement of personal rights (see the order of the European Parliament on the Amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations [Rome II], P7_TA (2012) 0200, available at: http://www.europarl.europa.eu/sides/getdoc.do?pubref=-//ep//text+ta+p7-ta- 2012-0200+0+DOC+XML+V0//DE, last downloaded 9 February 2016), the regulatory authority probably did not wish to anticipate this amendment with Brussels Ibis (v. Hein, RiW 2013, 97 [102]). The article of B was accessible in any Member State of the EU. Following the edatedecision, all of the Member States can therefore be seen as places of distribution. It is not necessary that there is a special connection between the contested content or the website and the State of the court seized beyond technically possible accessibility. 24 D is known in all Member States from which the article is accessible. She claims a loss of reputation in Germany, UK, Portugal and France. As the article is available in these four languages and was read in the respective countries, she can bring her action for compensatory damage before the courts in these states. As D has her habitual residence in Paris, France, this is her centre of main interest. She could therefore claim the whole damage before French courts. E) Result As a result, D can proceed against B before the courts of general jurisdiction in Germany, Art. 4 (1) Brussels Ibis, as well as before the courts for the place where the harmful event giving rise to the damage occurred or before the courts for the place where the damage occurred, Art. 7 (2) Brussels Ibis. If D decides to sue in the courts for the place where the harmful event giving rise to the damage occurred, she can sue B in Germany and claim the total damage. 23 Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez, Robert Martinez v. MGN Limited [2011] ECR I-10269 para 52. 24 Case C-509/09 and C-161/10 (joined cases) edate Advertising GmbH v. X and Olivier Martinez,Robert Martinez v. MGN Limited [2011] ECR I-10269 para 52. 8
If D decides to sue in the courts for the place where the damage occurred, she can sue the total damage in French courts. She can also claim the partial damages in the UK, France and Portugal, if she brings an action in each Member State where the damage occurred. Question 2: International Jurisdiction of the German courts for the action of D against C a) Common action against D and C Note: In this case, D sued for the damage which is the cancellation of a contract due to her loss of reputation. Nevertheless, it is not necessary that damage was actually sustained in the past, as this follows from the last clause of Art. 7 (2) Brussels Ibis ( or may occur ) (Case C-167/00 Verein für Konsumenteninformation v. Karl-Heinz Henkel [2002] ECR I-8111 para 46-49). A) Applicability of the Brussels Ibis Regulation The applicability of the Brussels Ibis Regulation is given as above. B) General jurisdiction As publisher C is a company, its statutory seat is deemed to be its domicile, Art. 63 (1) a) Brussels Ibis which is in Rome, Italy, not in Germany. C) Special jurisdiction on tort Whether on the facts of the case German courts have jurisdiction over C on the grounds that they constitute the forum loci delicti commissi (the courts of the place where the harmful event occurred) under Art. 7 (2) Brussels Ibis is not easy to determine: The question arises whether it is possible to attribute B s action that took place in Germany to C (see below). D) Jurisdiction under Art. 8 (1) Brussels Ibis (close connection to the claim against B) There is no need to solve the enigma of Art. 7 (2) Brussels Ibis if it is possible to extend the German courts jurisdiction over C s co-defendant B to C under Art. 8 (1) Brussels Ibis. German courts have jurisdiction over B because of his domicile in Germany (Art. 4, 63 Brussels Ibis). From this follows German jurisdiction over C when D s claims against both of them are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. This is easily demonstrated here: The question at the heart of both claims is whether B s article and photo which he passed on to C violate D s personality rights. The fact that C adds other pictures of 9
D and new comments on her seems not to alter this question in regard to C, but could merely be a source of additional sorrow for D. As a result, D can sue C together with B in Germany under Art. 8 (1) Brussels Ibis. b) Jurisdiction in Germany over B as a sole defendant A) Applicability of the Brussels Ibis Regulation The applicability of the Brussels Ibis Regulation is given as above. B) General jurisdiction As publisher C is a company, its statutory seat is deemed its domicile, Art. 63 (1) a) Brussels Ibis which is in Rome, Italy, not in Germany. C) Special jurisdiction in tort An (additional) international jurisdiction could also be determined by a special jurisdiction on tort, Art. 7 (2) Brussels Ibis. According to this provision, a person domiciled in a Member State may be sued in another Member state in matters relating to tort, delict or quasi-delict in the courts for the place where the harmful event occurred or may occur. I) Matter relating to tort, delict or quasi-delict The publication of the article by C is (as the publication by B) a violation of D s right to personality and therefore constitutes a tort in the sense of Art. 7 (2) Brussels Ibis. II) Courts for the place where the harmful event occurred or may occur As a result, D can sue C in the courts for the place where the harmful event occurred or may occur. 1) Place where the damage occurred ( Erfolgsort ) Following the Shevill-doctrine and the edate-decision mentioned above, D can either sue for the partial damage in each Member State (Germany, UK, France, Portugal) with various claims or she can sue for the whole damage at the place of her centre of interest, which is in Paris, France. 2) Place where the event giving rise to the damage occurred ( Handlungsort ) 10
In such cases, where a privacy right is violated by a media through the internet, the place, where the event giving rise to the damage occurred, is deemed to be the statutory seat of the publisher. 25 The statutory seat of C is in Rome, Italy. D could therefore sue C in Italy. 3) Majority of tort-feasors As publisher C and publisher B work as joint participants, the question arises whether D can hold both of them liable at the place where only one of them acted, or in other words, whether D can sue C in Germany as well, because publisher B as his joint participant is to be sued in Germany as the place where B acted ( Handlungsort ). The advocate of D proposed an application of the rule known in German law under 830 BGB. He wants to impute the action of publisher B to publisher C and on this ground sue publisher C before German courts although publisher C did not act in Germany. The question if all tort-feasors can be held liable at the place where only one of them acted was disputed for a long time. 26 Some legal authors did not understand Art. 7 (2) Brussels Ibis as being confined to acts of the principal himself but requiring acts by the defendant or those for which he is in law responsible. 27 Whereas the CJEU referred to Art. 8 (1) Brussels Ibis under which it is possible to sue persons before a court although they have not acted within its jurisdiction to support his reasoning, 28 Art. 8 (1) Brussels Ibis is not necessarily an argumentum e contrario 29. Also, the connecting factor as a condition of Art. 8 (1) Brussels Ibis would in many instances rely on information to which the plaintiff has no access and would also generate uncertainty. Yet, dividing activity must not lead to results different from those which would be found if a single tort-feasor had acted. Affirming the applicability of Art. 7 (2) Brussels Ibis though would create the need of a European concept of who can be regarded as an accomplice. 30 Finally, the CJEU decided this question in his Melzer-decision. 31 The German Court asked if Art. 5 (3) Brussels I (Art. 7 (2) Brussels Ibis) permits the court of the place where a harmful event occurred (which is imputed to one of the presumed perpetrators of damage who is not a party to the dispute) to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seized. 32 The German law allows such a possibility by a reciprocal attribution to the place where the event occurred in 830 ss. 1 BGB. Could this rule be applied to the case? The CJEU denied this question. It pointed out that the question did not concern the identification of the place where the damage occurred (which was in Germany, Erfolgsort ) but the interpretation of the place of the event giving rise to the damage ( Handlungsort ). 33 The event (giving rise to the damage) cannot be regarded as taking place at the place of an act allegedly committed by another person if this other person acted as a joint participant of the sued person. The CJEU 25 See Question 1 D III 1. 26 See Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 282 ff. 27 Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 282; v. Hein, IPrax 2006, 460 (461). 28 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 39. 29 Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 283. 30 See Magnus/Mankowski/Mankowski, Brussels Ibis Regulation (2016), Art. 7 note 286. 31 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported). 32 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 19. 33 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 29. 11
did not see that a reciprocal attribution to the place where the event giving rise to the damage could change the fact that the sued person did not himself act within this jurisdiction. Even though the person acting within the jurisdiction of the court and the person sued were connected as joint participants, this fact could not constitute jurisdiction of that court. 34 As there is no concept common to the national legal systems of the Member States and the European Union enabling imputation of one perpetrator to the other, allowing such an imputation would probably lead the national court to refer to its national law (as the German Court did). That would be contrary to the objective of legal certainty; it would not allow the defendant to reasonably predict the court before which he might be sued. 35 Such an imputation would also go beyond the situation expressly envisaged in the Brussels Ibis Regulation and as a result it would be contrary to its general scheme and objectives. 36 III) Result In conclusion, D can claim the total damage of C either in French courts as this is the place where the damaged occurred and where she has her centre of main interest, or in Italian courts as this is the place of the event giving rise to the damage occurred and also the place of general jurisdiction (Art.4 (1) Brussels Ibis). She can claim the entire damage from C in Germany as well if she names him co-defendant alongside B. Please note: The Melzer-case did not concern a violation of the right to personality, but a claim of a German client against a brokerage concern in the UK who allegedly was an accomplice of the firm soliciting the client. It remains to be seen if the CJEU decides differently in a case concerning the violation of personal rights, notably in interaction with the Shevill-doctrine. Please note also: In his recent decision (Case-360/12 Coty Prestige Lancaster Group GmbH v. First Note Perfumes NV judgment of 5 June 2014 [not yet reported]), the CJEU sustained its ruling of Melzer concerning the determination of the place of the event giving rise to the damage (Coty, para 50). However, in Coty the CJEU allows the imputation of the acts of an accomplice for the determination of the place where the damage occurred (Coty, para 55 f.); see for this decision also Hackbarth, GRUR- Prax 2014, 320. Question 3: Taking evidence under Regulation No 1206/2001 34 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 37. 35 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 34. 36 Case C-228/11 Melzer v. MF Global UK Ltd judgment of 16 May 2013 (not yet reported) para 36. 12
The question is whether the Dutch Court can summon and hear witness Mr X according to its national law, or if the Dutch Court is obliged to follow the procedure laid down in Regulation No 1206/2001. The question concerns the interpretation of Regulation No 1206/2001 37, in particular Art. 1 (1) thereof. Scope of application of Regulation No 1206/2001: The Regulation No 1206/2001 entered into force on 1 January 2004. According to its Art.1 (1), it is applicable in civil or commercial matters where a court of a Member State, in accordance with the provisions of its legislation, (a) either requests the competent court of another Member State to take evidence or (b) takes such evidence directly in the latter State. The scope ratione materiae is limited to two methods of taking evidence: The first method is the taking of evidence by the requested court in accordance with Articles 10 to 16 of Regulation No 1206/2001, following a request from the requesting court of another Member State (option a). The procedure follows the lex fori of the requested court, Art. 10 (2) Regulation No 1206/2001. Coercive measures are regulated in Art. 13 Regulation No 1206/2001. Requests can be refused for different reasons foreseen in Art. 14 Regulation No 1206/2001 e.g. due to legal privileges Art. 14 (2) Regulation No 1206/2001. The second method is the taking of evidence directly by the requesting court in another Member State, the detailed rules for which are set out in Article 17 of the Regulation (option b). It may only take place if it can be performed on a voluntary basis without the need for coercive measures. Where the taking of evidence implies the hearing of a person, the requesting court has to inform that person about the voluntary character of the hearing. The taking of evidence follows the law of the Member State of the requesting court, Art. 17 (3) Regulation No 1206/2001. Apart from the Regulation No 1206/2001, there also exists the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. According to its Art. 21 (1), Regulation No 1206/2001 prevails. In cases involving non-contracting-states, the Hague Convention remains applicable. In relation to Denmark, the Regulation No 1206/2001 does not apply, cf. Art. 1 (3). The answer can already be found with regard to the wording of Art. 1 (1) Regulation No 1206/2001 which sets out the precondition of a request to another court for the regulation s 37 For further general remarks see Rauscher/v. Hein, EuZPR, EuIPR (4 th edition 2015), Einl. Art. 1 EG- BewVO note 1 ff.; Geimer, Internationales Zivilprozessrecht (7 th edition 2015), p. 902. 13
applicability, thus the Regulation only applies once a request is made and does not hold an obligation to follow the Regulation whenever it is possible. 38 This interpretation is also supported by the Regulation s objective to make the taking of evidence in a cross-border context simple, effective and rapid. Generally prohibiting the Court in a Member State from hearing witness residing in another Member State pursuant to its national law would be contrary to that objective. 39 It may be simpler, more effective and quicker for the competent court to hear the witness in accordance with the provisions of its national law. 40 With regard to Art. 21 (2) Regulation No 1206/2001 which expressly authorizes agreements or arrangements between Member States to further facilitate the taking of evidence, it also becomes clear that the Regulation does not govern exhaustively the taking of cross-border evidence. 41 This understanding was confirmed by the CJEU in 2012. The competent court of a Member State which wishes to hear as a witness a party residing in another Member State, is not bound to use the means of taking evidence laid down by the Regulation. Thus, the character of the Regulation is not obligatory. Rather, the court has the possibility to summon to appear and hear that party in accordance with the law of its Member State, meaning that the Regulation is facultative. 42 As a result, the Regulation only holds an obligation for the requested court to take evidence after being asked to do so by another Member State court under Art. 10 f. Regulation No 1206/2001, whereas there is no obligation to request another court for taking evidence. 43 As a result, the Dutch court is right in assuming that it can summon and hear Mr. X in front of Dutch courts following Dutch law. 38 Case C-170/11 Lippens and others v. Kortekaas and others judgment of 6 September 2012 (not yet reported) para 25 f.; Rauscher/v. Hein, EuZPR, EuIPR (4 th edition 2015), Art. 1 EG-BewVO note 18. 39 Case C-170/11 Lippens and others v. Kortekaas and others judgment of 6 September 2012 (not yet reported) para 29 f. 40 Case C-170/11 Lippens and others v. Kortekaas and others judgment of 6 September 2012 (not yet reported) para 31. 41 Case C-170/11 Lippens and others v. Kortekaas and others judgment of 6 September 2012 (not yet reported) para 33. 42 Case C-170/11 Lippens and others v. Kortekaas and others judgment of 6 September 2012 (not yet reported). 43 Bach, EuZW 2012, 831 (833). 14
Please note: The CJEU confirmed its ruling with its recent decision in Case C- 332/11 ProRail, judgment of 21 February 2013 (not yet reported) para 42. In this case before a Belgian court about a derailed train, an expert should examine the rail network in Belgium as well as in the Netherlands. It was argued whether the expert could only carry out his activities in the Netherlands in accordance with the procedure laid down in Regulation No 1206/2001, thus making a request under Art. 1 and Art. 17 Regulation No 1206/2001 to the Court in the Netherlands. The CJEU again denied an obligation to follow the procedure of the Regulation. The Regulation only applies if the court of a Member State decides to take evidence according to one of the two methods (ProRail, para 42). Only if the taking of evidence in the other Member State affects the powers of this Member State (e.g. is prohibited or restricted to certain persons) and in the absence of an agreement or arrangement between Member States according to Art. 21 (2) Regulation No 1206/2001, the method of taking evidence laid down in Art. 1 (1) and Art. 17 Regulation No 1206/2001 is the only means to enable the court of a Member State to carry out the investigation (ProRail, para 48; see also Bach, EuZW 2012, 831 [834]). 15