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Document 62015CC0618

Opinion of Advocate General Wathelet delivered on 9 November 2016.
Concurrence Sàrl v Samsung Electronics France SAS and Amazon Services Europe Sàrl.
Request for a preliminary ruling from the Cour de cassation (France).
Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Jurisdiction — Tort, delict or quasi-delict — Selective distribution network — Prohibition on online resale outside a network — Action for an injunction prohibiting unlawful interference — Connecting factor.
Case C-618/15.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:C:2016:843

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 9 November 2016 ( 1 )

Case C‑618/15

Concurrence SARL

v

Samsung Electronics France SAS,

Amazon Services Europe Sàrl

(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))

‛Request for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 5(3) — Jurisdiction — Matters relating to tort, delict or quasi-delict — Selective distribution network — Prohibition on online resale outside a network — Action for an injunction prohibiting unlawful interference — Connecting factor’

1. 

This reference for a preliminary ruling on the interpretation of Article 5(3) of Regulation (EC) No 44/2001 ( 2 ) (the ‘Brussels I Regulation’) was made in the course of a dispute between Concurrence SARL, a company established in France, on the one hand, and Samsung SAS, also established in France, and Amazon Services Europe Sàrl, a company established in Luxembourg, on the other hand, concerning an alleged infringement of prohibitions on resale outside a selective distribution network and in a market place committed by means of offers for sale posted online on a number of websites operated in various Member States (namely Amazon.fr, Amazon.de, Amazon.co.uk, Amazon.es and Amazon.it).

2. 

The issue of crime committed on the internet (‘cybercrime’) is not a straightforward one inasmuch as, since the internet is a network which is by definition universal, the location of such crime, be it the causal event or the loss sustained, is particularly difficult to determine. Moreover, cybercrime is not confined to the offences reported in the press and on radio and television (defamation, invasion of privacy) but, as the case-law of the Court cited in this Opinion shows, also involves other types of offence such as offering counterfeit goods for sale on the internet or the infringement of prohibitions on resale outside a selective distribution network, the offence at issue in the main proceedings. Some take the view that positive law is not yet geared up to deal with such offences. ( 3 )

I – Legal framework

A – EU law

1. Regulation No 44/2001

3.

Recitals 11, 12 and 15 of Regulation No 44/2001 state:

‘(11)

The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(12)

In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.

(15)

In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. …’

4.

The rules of jurisdiction are set out in Chapter II of Regulation No 44/2001. Article 2(1) of that regulation, which comes under Chapter II, Section 1, entitled ‘General Provisions’, reads as follows:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

5.

Article 3(1) of that regulation, which also appears in Section 1, provides:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

6.

Article 5(3) of that regulation, which forms part of Chapter II, Section 2, entitled ‘Special jurisdiction’, provides as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

(3)

in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.’

7.

Regulation No 44/2001 was repealed by Article 80 of Regulation (EU) No 1215/2012 ( 4 ) (the ‘Brussels Ia Regulation’). Pursuant to the second paragraph of Article 81 of that regulation, however, it is to apply only from 10 January 2015. Since the main proceedings were instituted before that date, Regulation No 44/2001 must be applied in the present case.

2. Regulation No 864/2007

8.

Article 6 of Regulation (EC) No 864/2007, ( 5 ) entitled ‘Unfair competition and acts restricting competition’, is worded as follows:

‘1.   The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.

2.   Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply.

…’

B – French law

9.

At the material time, Article L. 442-6(1)(6) of the Commercial Code provided that ‘any producer, trader, manufacturer or person listed in the Trades Register who participates directly or indirectly in the infringement of the prohibition on resale outside a network applicable to a distributor bound by a selective or exclusive distribution agreement exempt under the applicable rules of competition law, shall incur liability for that act and shall be obliged to make good the loss so caused’.

II – The dispute in the main proceedings and the question referred for a preliminary ruling

10.

It is apparent from the documents before the Court that Concurrence is a retailer of consumer electronics trading through a shop located in Place de la Madeleine, Paris (France), and on its online sales website ‘concurrence.fr’. On 16 March 2012, it concluded with Samsung a selective distribution agreement, entitled ‘Specialist ELITE retailer’, for high-end Samsung products (the ELITE range). That agreement included a provision prohibiting the sale of those products on the internet.

11.

A dispute then arose between the parties. Samsung accused Concurrence of breaching the selective distribution agreement by selling the ELITE product range on its website. For its part, Concurrence contested the legality of the terms of the contract, alleging inter alia that these are not uniformly applied to all distributors, some of whom market the products in question on Amazon websites without any response from Samsung.

12.

By letter of 20 March 2012, Samsung informed Concurrence that their commercial relationship would be terminated with effect from 30 June 2013.

13.

In April 2012, Concurrence, citing Samsung’s refusal to supply it with the ELITE product range, contrary to the undertakings entered into, brought an action for interim measures against Samsung before the Tribunal de commerce de Paris (Commercial Court, Paris) (France).

14.

By order of 18 April 2012, that court dismissed Concurrence’s claims. That order was upheld by judgment of 25 October 2012 of the Cour d’appel de Paris (Court of Appeal, Paris) (France), acting in its capacity to hear applications for interim measures.

15.

By document of 3 December 2012, Concurrence brought an action against Samsung and Amazon before the Commercial Court, Paris, with a view to obtaining an interim order declaring the prohibition on the sale of the ELITE product range on the internet as imposed by the selective distribution agreement to be unenforceable against it, requiring Samsung, in consequence, to continue to supply it with the products covered by that agreement and requiring Amazon to withdraw any offers for sale of a number of Samsung product models from its Amazon.fr, Amazon.de, Amazon.co.uk, Amazon.es and Amazon.it websites.

16.

By order, made in inter partes proceedings, of 8 February 2013, the Commercial Court, Paris, acting in its capacity to hear applications for interim measures, held that it did not have jurisdiction over the foreign Amazon websites, found that there was no need for interim measures in connection with Concurrence’s claims against Samsung and dismissed Concurrence’s claims against Amazon France.

17.

On 27 June 2013, Concurrence lodged an appeal against that decision before the Court of Appeal, Paris. By judgment of 6 February 2014, that court varied in part the order of the Commercial Court, Paris, while upholding the inadmissibility of Concurrence’s claims against Samsung and the dismissal of Concurrence’s claims against Amazon Services Europe.

18.

Concurrence then lodged an appeal in cassation against that judgment before the referring court.

19.

In its appeal, Concurrence claims, inter alia, that the contested confirmatory judgment was wrong to find that the French court lacked jurisdiction over the foreign Amazon websites because the latter were not directed at the French public. In its submission, even if the criterion relating to the website’s accessibility is insufficient, the Court of Appeal, Paris, acted unlawfully in refraining from determining whether the sales system on Amazon websites enabled the products offered for sale to be dispatched not only within the website’s country of origin but also in other European countries, in particular France, in which case jurisdiction would legitimately lie with the French courts.

20.

The referring court considers that the dispute pending before it has the particular feature of not matching any of the scenarios already considered in the Court’s case-law concerning Article 5(3) of Regulation No 44/2001. In its view, the action brought seeks to put an end to the loss which an approved distributor, established in France and operating an online sales website, claims to have sustained as a result of the supplier’s breach of the prohibition, contained in the distribution agreement, on the resale of goods outside the selective distribution network to which it belongs and the posting of offers for sale in an online marketplace on various websites operated in France and in other Member States.

21.

It was in those circumstances that the Cour de cassation (Court of Cassation) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in the event of an alleged breach of a prohibition on resale outside a selective distribution network and [in] a marketplace by means of online offers for sale on a number of websites operated in various Member States, an authorised distributor which considers that it has been adversely affected has the right to bring an action seeking an injunction prohibiting the resulting unlawful interference in the courts of the territory in which the online content is or was accessible, or must some other clear connecting factor be present?’

III – The procedure before the Court

22.

Written observations have been lodged by Concurrence, Amazon Services Europe, the French, Italian and Luxembourg Governments and the European Commission. The parties did not request a hearing and the Court did not hold one of its own motion.

IV – Assessment

A – Summary of the observations of the parties.

23.

Concurrence submits that it is entitled to bring an action for an injunction prohibiting the unlawful interference resulting from the alleged infringement before the court in whose territory the online content is or was accessible and that there is no need to identify another connecting factor. It submits that, in order for loss to have been sustained in France as a result of the posting of offers on foreign websites, it is sufficient that those offers may be of interest to potential French customers, that is to say that the product can be bought in France. In this instance, the televisions in question can be sold from one country to another and the market is not confined to France.

24.

According to Concurrence, a selective [distribution] agreement generally covers a market comprising the EU countries, and often Switzerland, and establishes the right to sell, or prohibits the sale of, products within the territory of all those countries. For a French retailer, the market in Samsung televisions is the European market. The French retailer can sell on that market but may also be in competition with foreign retailers dispatching goods from their countries either by posting offers on their foreign websites which are accessible in France (Amazon.it, for example) or by posting offers on the French website (Amazon.fr), if they are entitled to sell them there. In the case at issue, Samsung ELITE televisions can be purchased and delivered from any country.

25.

According to Amazon Services Europe, on the other hand, the online content must not only be accessible in the territory of the court seised but must also be targeted at the public residing in that territory, which presupposes that various criteria are cumulatively satisfied, such as, first and foremost, the law specifically applicable, the place of delivery of the products offered for sale, the language in which the offers are written, the currency in which the price is quoted or the forms of advertising used.

26.

In its submission, unlike infringements of personality rights or copyright, where the loss arises from the mere dissemination of the disputed content, the loss arising from a breach of the integrity of a selective distribution network is liable to affect certain approved distributors only if their potential customers can be induced to purchase the products offered for sale on those websites. The court best placed to assess that loss is therefore the one in whose jurisdiction the public targeted by the offers for the sale of those products is situated.

27.

According to the French Government, a dispute concerning an infringement such as that at issue should be brought before the French courts in so far as an act committed in another Member State has given rise or may give rise to loss within the jurisdiction of the court seised.

28.

The French Government submits that, in a dispute concerning an offer for the sale on an online marketplace targeted at consumers in the European Union of branded goods intended by the owner for sale in third countries, the Court has held that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in that territory. It therefore falls to the national courts to assess on a case-by-case basis whether there are any relevant factors on the basis of which it may be concluded that an offer for sale, displayed on an online marketplace accessible from the territory covered by the trade mark, is targeted at consumers in that territory, taking into account in particular the fact that the offer for sale is accompanied by details of the geographical areas to which the seller is willing to dispatch the product. ( 6 )

29.

The Italian Government submits in essence that the case which gave rise to the judgment of 3 October 2013 in Pinckney (C‑170/12, EU:C:2013:635) differs from the present case, in which, in the light of the loss alleged, the applicant in the main proceedings brought an action for an injunction prohibiting unlawful interference by which it seeks to have the contested offer removed from the marketplace. The Italian Government contends that, in such circumstances, the view must be taken, in the light of the principles established by the Court with respect to the viral capacity of infringements committed via the internet, the nature of the right infringed and the means of protecting it, and taking into account also the objectives of foreseeability and the sound administration of justice that justify recourse to the alternative forum of jurisdiction under consideration, that such an action may be brought either before the courts of the Member State of the place in which the contested offer was posted on the marketplace via the website located in that State or before the courts of the Member State in which the offer in question is in any event accessible and such as to enable the product to be purchased.

30.

The Luxembourg Government argues that, since the case in the main proceedings involves an approved distributor which claims to have suffered loss as a result of a purported infringement of the prohibition on sales outside the selective distribution network to which it belongs, the alleged loss consists in a fall in its market share and it is therefore necessary to take into account the relevant market for that approved distributor in order to identify the appropriate forum of jurisdiction. The criterion based on the obtainability of the product within the jurisdiction of the court seised is therefore particularly relevant.

31.

The Luxembourg Government recalls that, unlike in the case of the judgments given by the Court in matters concerning the protection of personality rights (judgment of 25 October 2011, eDate Advertising and Others, C‑509/09 and C‑161/10, EU:C:2011:685), trade marks (judgment of 19 April 2012, Wintersteiger, C‑523/10, EU:C:2012:220) or copyright (judgment of 3 October 2013, Pinckney, C‑170/12, EU:C:2013:635), the infringement alleged in the dispute in the main proceedings consists in the ‘resale’ of certain goods outside a selective distribution network. Thus, the dissemination of content on the internet does not in itself constitute an infringement, which presupposes the performance of certain additional acts capable of causing loss.

32.

The Commission proposes that the Court’s answer should be that Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in the event of an alleged infringement of a prohibition on resale outside an exclusive distribution network which has been committed by the offering on the internet of goods covered by the exclusive [distribution] right on sites operated in different Member States, the place where the loss occurred is to be regarded as being the place where the holder of the exclusive distribution right suffered a fall in sales, the latter being the same as the territory in respect of which it holds such a right.

B – Analysis

33.

First of all, it should be noted — as a point of interest in itself — that there is no provision relating specifically to cybercrime in the relevant legislation, be it Regulation No 1215/2012, Regulation (EC) No 593/2008 ( 7 ) or the Rome II Regulation (this notwithstanding the fact that the internet is a good 25 years old now). There are two possible explanations for this silence: either the European legislature considered that such crime was not so specific as to require special provision to be made for it, or the issue looked too complex and it seemed preferable to await the Court’s case-law ( 8 ) (mention must be made, inter alia, of the judgments of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685); of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220); of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635); or of 22 January 2015, Hejduk (C‑441/13, EU:C:2015:28)).

1. The principles to be relied on as an introduction to the answer to the question referred for a preliminary ruling

34.

It should be recalled at the outset that the provisions of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose. ( 9 )

35.

It must be stated that ‘it is only by way of derogation from that fundamental principle laid down in Article 2(1) of Regulation No 44/2001, attributing jurisdiction to the courts of the defendant’s domicile, that Section 2 of Chapter II thereof makes provision for certain jurisdictional rules, such as that laid down in Article 5(3) of that regulation’. ( 10 )

36.

In so far as the jurisdiction of the court of the place where the harmful event occurred or may occur constitutes a rule of special jurisdiction, it must be interpreted restrictively and cannot give rise to an interpretation going beyond the cases expressly envisaged by Regulation No 44/2001. ( 11 )

37.

It is important to respect those limits when interpreting the expression ‘place where the harmful event occurred or may occur’, contained in Article 5(3) of Regulation No 44/2001, which ‘is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places’. ( 12 )

38.

In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings. ( 13 )

39.

Since the identification of one of the connecting factors recognised by the case-law recalled in the preceding points of this Opinion is to enable the court objectively best placed to determine whether the elements establishing the liability of the person sued are present to take jurisdiction, an action may properly be brought only before the court within whose jurisdiction the relevant connecting factor is to be found. ( 14 )

40.

The present case raises the question of whether the referring court has jurisdiction solely on the basis of the place where the alleged loss occurred. As the Commission noted, it is apparent from the documents before the Court that the question referred for a preliminary ruling is concerned with the place where the loss occurred, not with the place where the causal event giving rise to that loss occurred. I consider (like the French Government) that the causal event giving rise to the infringement of the prohibition on resale outside a selective distribution network is likely to lie in the conduct of the body managing each of the websites. It follows from this that such a causal event may be found in various places depending on where that body/those bodies is/are established. In the present case, therefore, the causal event does not provide a basis for establishing the jurisdiction of the court seised.

41.

According to case-law, the place where the damage occurred is the place where the event which may give rise to liability in tort, delict or quasi-delict resulted in damage. ( 15 )

42.

The Court has already interpreted Article 5(3) of Regulation No 44/2001 in the context of allegations of loss caused by content put online on a website and, therefore, capable of occurring in numerous places. ( 16 )

43.

With specific regard to alleged infringements of intellectual property rights, the Court has held in several judgments ( 17 ) that jurisdiction is predetermined by the territory in which the right at issue is protected. It is, after all, the courts of the Member State of protection which are best placed to hear and determine an allegation of infringement of the protected right.

44.

In Wintersteiger (judgment of 19 April 2012, C‑523/10, EU:C:2012:220), which concerned an allegation of infringement of a national trade mark, the Court held that both the objective of foreseeability and that of sound administration of justice militated in favour of conferring jurisdiction, in respect of the damage occurred, on the courts of the Member State in which the right at issue is protected, the latter being best placed to assess whether that right has actually been infringed, and able, pursuant to Article 8 of the Rome II Regulation, to apply their national law.

45.

Thus, the Court has held that ‘Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that an action relating to infringement of a trade mark registered in a Member State because of the use, by an advertiser, of a keyword identical to that trade mark on a search engine website operating under a country-specific top-level domain of another Member State may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser’ ( 18 ).

46.

In the judgment of 3 October 2013 in Pinckney (C‑170/12, EU:C:2013:635), the Court held that, ‘as regards the alleged infringement of a copyright, jurisdiction to hear an action in tort, delict or quasi-delict is already established in favour of the court seised if the Member State in which that court is situated protects the copyrights relied on by the plaintiff and that the harmful event alleged may occur within the jurisdiction of the court seised. Pursuant to Article 8 of the Rome II Regulation, those courts may also apply their national law. In the judgment of 3 April 2014, Hi Hotel (C‑387/12, EU:C:2014:215), the Court transposed the case-law in Pinckney to alleged infringements of a right unconnected with the internet.

47.

In paragraphs 41 and 42 in particular of the judgment of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635), the Court held that, ‘at the stage of examining the jurisdiction of a court to adjudicate on damage caused, the identification of the place where the harmful event giving rise to that damage occurred for the purposes of Article 5(3) of … Regulation [No 44/2001] cannot depend on criteria which are specific to the examination of the substance and which do not appear in that provision. Article 5(3) lays down, as the sole condition, that a harmful event has occurred or may occur. … Thus, unlike Article 15(1)(c) of [that] regulation, which was interpreted in [the judgment of 7 December 2010, Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740)], Article 5(3) thereof does not require, in particular, that the activity concerned to be “directed to” the Member State in which the court seised is situated’ (emphasis added).

48.

Indeed, the Court has never considered it to be essential in determining ‘the place where the event which may give rise to liability in tort, delict or quasi-delict (leading to loss or damage) occurred’ that the activity which gave rise to the loss should be specifically directed to the place in question. ( 19 )

49.

Lastly, it follows from the judgment of 22 January 2015, Hejduk (C‑441/13, EU:C:2015:28, paragraph 38) that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated. Under Article 8 of the Rome II Regulation, that court may apply its national law.

50.

Although it is true that the judgment of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635) concerns an action for damages for infringement of copyright online, paragraph 42 thereof, cited in point 47 of this Opinion, contains a ruling that is generally applicable.

51.

In that context, it should be noted that the expression ‘place where the harmful event occurred’ may not be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually arising elsewhere, can be felt. ( 20 )

52.

In the wake of that case-law, the Court has also held that that expression does not refer to the place where the applicant is domiciled and where his assets are concentrated by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Member State. ( 21 )

53.

The Court recalled in its judgment of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 49) that ‘the mere fact that the applicant has suffered financial consequences does not justify the attribution of jurisdiction to the courts of the applicant’s domicile if, as was the situation giving rise to [the judgment of 10 June 2004, Kronhofer (C‑168/02, EU:C:2004:364)], both the events causing loss and the loss itself occurred in the territory of another Member State (see, to that effect, judgment [of 10 June 2004, Kronhofer, C‑168/02], EU:C:2004:364, paragraph 20)’.

54.

On the other hand, it stated in paragraph 50 of the judgment of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37) that, ‘by contrast, such an attribution of jurisdiction is justified if the applicant’s domicile is in fact the place in which the events giving rise to the loss took place or the loss occurred’.

55.

Continuing that line of reasoning, the Court recognised in paragraph 55 of that judgment that the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, when that loss occurred directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts.

56.

In cases involving an infringement of intellectual property rights or an infringement of competition law through the use of the internet, the place where the loss occurred is in principle every place where a website is accessible. Because the internet is ubiquitous, ( 22 ) there is a multitude of places where loss may occur.

57.

In fact, in order to avoid global jurisdiction, even in the case of ‘Minimum Contacts’, ( 23 ) case-law and legal literature have long been endeavouring to create criteria for (de)limiting the places where loss arising from crime committed on the internet has the potential to occur. So it is that, in order to create a forum of jurisdiction in the place where the loss occurred, the infringement of competition law in question must have certain effects. ( 24 ) After all, loss can be ruled out if it is apparent that the competition alleged by the complainant could not have had any economic consequences on the market(s) at issue. It follows, for example, that online advertising for the services of a supplier known only locally obviously cannot occasion loss anywhere other than on the local market. ( 25 )

58.

A parallel may be drawn here with alleged infringements of intellectual property rights. After all, ‘in infringement matters, the direct harmful event will usually be the financial loss which is suffered by the holder of the right at the place where the infringing material is marketed, advertised or used. In the reference book in the matter, Professors Fawcett and Torremans have pointedly noted in that respect that “in many cases an act of infringement will cause direct economic loss to the plaintiff … It is not usually hard to identify what the loss is. If, for instance, the defendant sells an infringing product this will result in a loss of sales. Damage is, therefore, sustained at the place in which the sales are lost. This will be the place in which the infringing product is sold” … It is submitted that this analysis is in total agreement with the case-law of the [Court], and that could be extended to other kinds of infringement actions. Thus, with respect to copyrights, the financial loss is usually sustained where copies of the infringing material are sold or issued to the public; in trade marks, where the sign is used in support of the marketing or offering of products’. ( 26 )

2. Application to the case at issue

a) Where did the loss occur?

59.

It is clear from the Court’s case-law that, in the case of an infringement committed via the internet, ‘the place where the harmful event occurred or may occur’ within the meaning of Article 5(3) of Regulation No 44/2001 ‘may vary according to the nature of the right allegedly infringed’. ( 27 )

60.

I (like the Commission) take the view that, in the present case, in order to determine the place where the harmful event occurred, it is first of all necessary to consider the nature of the loss which the sale of the contested products outside the selective distribution network may have inflicted on Concurrence. To that end, it should be recalled that, in the case of exclusive distribution agreements, the supplier confers on the distributor the exclusive right to distribute its products within a given territory and undertakes not to distribute those products outside the distributor’s sales network. The latter undertakes in turn to develop and promote sales of the supplier’s products within the territory concerned. In the event of infringement by a website of the exclusive rights conferred by the agreement, as here, the damage which the distributor may claim to have sustained is the reduction in the volume of its sales resulting from the sales made in breach of its exclusive right and the ensuing loss of profits. In view of the limited territorial scope of the exclusive distribution right, the place where the reduction in sales and loss of profits in question occur cannot be other than the territory of the Member State in respect of which the exclusive right is granted to the distributor.

61.

The documents before the Court would seem to indicate that, in the case at issue, since the distributor’s exclusive right is limited to the territory of France, it is in France that any reduction in sales or loss of profits would occur. It follows that the place where the harmful event occurred is France and that the courts having jurisdiction under Article 5(3) of Regulation No 44/2001 are the French courts.

62.

After all, since the Amazon.de., Amazon.co.uk, Amazon.es and Amazon.it websites are in principle accessible in France, the damage which Concurrence claims to have sustained consists in the loss of market share in its sales of ELITE range products, both in its shop in Paris and on its website, which it manages from its head office in Paris. It follows that any damage inflicted on it cannot occur anywhere other than in France. It is for this reason that the French courts should also have jurisdiction in respect of the foreign Amazon websites involved in the case at issue. ( 28 )

63.

The place where the loss occurred serves to designate a forum delicti which exhibits ‘a particularly close connecting factor’ [with the case in question] and ‘justifies the attribution of jurisdiction to those courts [that is to say, courts other than those of the defendant’s domicile] for reasons relating to the sound administration of justice and the efficacious conduct of proceedings’. ( 29 )

64.

I would point out that ‘those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the [internet] do so knowing that the information they make available is available to all and sundry without any geographic restriction’. ( 30 )

65.

This is why, in the present case, it is indeed the French courts that are best placed to assess the question of the loss of market share by Concurrence in its sales of ELITE range products both in its shop in Paris and on its website, which it manages from its head office in Paris.

66.

We should bear in mind, moreover, that the determination of the place where the harmful event occurred must serve the objective as to the foreseeability of the forum of jurisdiction, which is a further fundamental principle of Regulation No 44/2001 (reflected in recital 11 thereof). Similarly, the Court held in the judgment of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220) that the objective of foreseeability also militates in favour of conferring jurisdiction, in respect of the damage occurred, on the courts of the Member State in which the right at issue is protected (in this instance, the distributor’s exclusive right).

67.

Finally, Amazon Services Europe submits that the accessibility theory should not be accepted, since it encourages forum shopping, which, given the specific nature of national legal systems, might lead to ‘law shopping’ by contamination. It should be point out, however, first, that the argument to that effect as raised by Advocate General Jääskinen in his Opinion in Pinckney (C‑170/12, EU:C:2013:400, point 68) was not endorsed by the Court in its judgment in that case and, secondly, that, in my view, that fear is exaggerated, not least because the national court can award damages only for loss occasioned in the territory of the Member State in which it occurs. ( 31 )

b) Is it relevant that the present case does not concern an intellectual property right?

68.

I consider that the solution proposed in this Opinion, first, is justified because it is consistent with the objectives of Article 5(3) of Regulation No 44/2001 (in particular that of conferring jurisdiction on the court best placed to hear and determine a claim) and, secondly, is justified even though the present case does not concern an intellectual property right.

69.

I further take the view that, in the context of the present case, an exclusive distribution right in a particular territory is akin to intellectual property rights.

70.

After all, a line of reasoning similar to that adopted in the judgment of 5 June 2014, Coty Germany (C‑360/12, EU:C:2014:1318) is justified here given that, in the circumstances at issue in that case too, the territoriality of the protection conferred was not linked to the scope of the intellectual property right protected, the right at issue in that case having been a Community trade mark.

71.

Although the situation at issue there did not relate specifically to the internet, the Court held in the judgment of 5 June 2014, Coty Germany (C‑360/12, EU:C:2014:1318) that, in the event of an allegation of unlawful comparative advertising or unfair imitation of a sign protected by a Community trade mark, prohibited by the law against unfair competition of the Member State in which the court seised is situated, Article 5(3) of the regulation allows jurisdiction to be established, on the basis of the place of occurrence of damage, to hear an action for damages based on that national law brought against a person established in another Member State who is alleged to have committed, in that State, an act which caused or may cause damage within the jurisdiction of that court. Moreover, pursuant either to Article 6(1) of the Rome II Regulation or to Article 6(2) and Article 4 of that regulation, that court applies its national law.

c) Is the origin of the ‘foreign’ websites (that is to say, sites other than Amazon.fr) relevant?

72.

I take the view that the origin of the websites on which the products concerned were offered is not relevant for the purpose of determining the forum of jurisdiction.

73.

After all, as the Commission has submitted, the forum of jurisdiction must be determined on the basis of the market on which the products covered by the exclusive distribution right are sold and the damage therefore occurred. In the present case, as has already been observed, the distributor’s exclusive right seems to be limited to the territory of France and it was therefore in France that it suffered a reduction in its sales and, in consequence, a loss of profits. The fact that the reduction and the loss were caused by websites established in France or elsewhere is relevant only for the purpose of determining the scope of the injunction sought by the distributor, that is to say for the purposes of identifying the websites to which that injunction might apply.

74.

In other words, determining the forum of jurisdiction is one thing, the scope of the injunction that may be issued against the defendant in the main proceedings, that is to say the identification of the websites on which the defendant will no longer be able to post offers for the sale of the contested products, is another. Of course, if the applicant in the main proceedings is able to demonstrate prima facie that the reduction in sales and loss of profits that it suffered in France were due not only to the activities of the Amazon.fr website but also to the activities of the foreign Amazon websites, it should be able to obtain from the French courts an injunction relating to those websites too. This, however, is a matter relating to the substance of the case and has nothing to do with identifying the forum of jurisdiction. As indicated above, it may be presumed that the territorial scope of the exclusive distribution right enjoyed by Concurrence is limited to the French market. ( 32 ) It will therefore be for the French court to establish to what extent the offering for sale of the products covered by that right on foreign websites was capable of interfering with Concurrence’s rights on the French market.

75.

That said, it should be noted that the question of whether there has indeed been an infringement of an exclusive distribution right in a context such as that of the case in the main proceedings is one of substance which the Court has not been asked to consider in the present case. After all, the identification of the place where the harmful event occurred cannot depend on factors which must be examined at a later stage, such as the analysis of the substance of the case

V – Conclusion

76.

For those reasons, I propose that the Court’s answer to the question referred for a preliminary ruling by the Court of Cassation (France) should be as follows:

Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an alleged infringement of a prohibition on sales outside an exclusive distribution network committed by means of the online offering for sale of products covered by the exclusive right on websites operated in different Member States, the place where the loss occurred is to be regarded as the place where the holder of the exclusive right suffers a reduction in its sales, that place being the same as the territory in which its right is protected. The origin of the websites on which the products in question were offered for sale is not relevant for the purposes of determining the forum of jurisdiction.


( 1 ) Original language: French.

( 2 ) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

( 3 ) See H. Gaudemet-Tallon, Compétence et exécution des jugements en Europe, LGDJ Lextenso éditions, 5th edition, 2015, p. 284, as well as the legal literature cited and the discussion of such matters in French case-law, one of the features of which has been the difference of opinion between the First Civil Chamber and the Commercial Chamber of the Cour de Cassation (Court of Cassation) (France). See also A. Kur, ‘Article 2:202: Infringement’ and ‘Special issues posed by Internet use and “media overspill”’, in Conflict of Laws in Intellectual Property, The CLIP Principles and Commentary, European Max Planck Group on CLIP, Oxford, 2013, p. 80.

( 4 ) Regulation (EU) No 1215/2012 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 (OJ 2012 L 351, p. 1).

( 5 ) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’) (OJ 2007 L 199, p. 40).

( 6 ) Judgment of 12 July 2011, L’Oréal (C‑324/09, EU:C:2011:474, paragraphs 64 and 65).

( 7 ) Regulation of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).

( 8 ) See H. Gaudemet-Tallon, cited above, p. 286.

( 9 ) Judgment of 16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraph 22 and the case-law cited).

( 10 ) Judgment of 16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraph 23).

( 11 ) Judgment of 16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraph 24).

( 12 ) Judgment of 16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraph 25). See also the judgment of 7 March 1995, Shevill and Others (C‑68/93, EU:C:1995:61, paragraphs 30 and 33).

( 13 ) Judgment of 16 May 2013, Melzer (C‑228/11, EU:C:2013:305, paragraph 26).

( 14 ) See the judgment of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635, paragraph 28).

( 15 ) Judgment of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220, paragraph 21).

( 16 ) See the judgments of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685), and of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220).

( 17 ) Judgments of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220); of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635); and of 22 January 2015, Hejduk (C‑441/13, EU:C:2015:28).

( 18 ) Judgment of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220, paragraph 39).

( 19 ) The Court did not impose that requirement in any of the following judgments: the judgments of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 52); of 19 April 2012, Wintersteiger (C‑523/10, EU:C:2012:220, paragraph 29); of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635, paragraph 42); and of 22 January 2015, Hejduk (C‑441/13, EU:C:2015:28, paragraph 32).

( 20 ) Judgment of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449, paragraph 34 and the case-law cited).

( 21 ) Judgment of 16 June 2016, Universal Music Holding (C‑12/15, EU:C:2016:449, paragraph 35 and the case-law cited).

( 22 ) In the United States, the case-law concerning jurisdiction in matters of infringement of a right (and defamation) via an omnipresent medium such as the internet is influenced in particular by the judgment in Zippo Manufacturing v Zippo Dot Com 952 F Supp 1119 (WD Penn 1997). See C.R. Dunham, Elon University School of Law Legal Research Paper No 2008-01 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1273709).

( 23 ) That criterion has already been mentioned by Advocate General Léger in his Opinion in Shevill and Others (C‑68/93, EU:C:1995:1, points 44 and 45 and footnote 28): it might be thought that damage as specific as an attack on a person’s reputation or honour is inseparable from that person and that it must necessarily occur in the place where he resides … I am convinced that in such circumstances the place where the damage occurs coincides with the territory in which the publication is distributed. The damage is severable from the forum of the victim’s domicile, which … does not necessarily have any connection with the damage … As to this point, compare the analysis of the Supreme Court of the United States in Keeton v Hustler Magazine Inc., 465 US 770, 79 L Ed 2d 790, 104 S Ct 1473, particularly (10): There is no justification for restricting libel actions to the plaintiff’s home forum. The victim of a libel, like the victim of any other tort, may choose to bring suit in any forum with which the defendant has certain minimum contacts … such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice’ (emphasis added).

( 24 ) See Oberlandsgericht Bremen (Higher Regional Court, Bremen, Germany) CR 2000, 771; Cour d’appel d’Orléans (Court of Appeal, Orléans) (France) Rev Crit 93 (2004), 139; Landesgericht Köln (Regional Court, Cologne, Germany) GRUR-RR 2006, 195. See P. Mankowski in Spindler/Wieber (editors.), Internet-Auktionen und elektronische Marktplätze, 2005, Chapter 12, paragraph 66.

( 25 ) See T. Rauscher, P. Mankowski, ‘Artikel 5 Brüssel I-VO, Europäisches Zivilproβrecht, Sellier, 2nd edition, paragraph 86d, p. 206.

( 26 ) [French] translation [in the French-language version of this Opinion] provided and italics added by me. [English original of citation follows]. See A. Nuyts, International Litigation in Intellectual Property Technology (European Commission Research Project on Judicial Cooperation in Matters of Intellectual Property and Information Technology), Wolters Kluwer, 2008, p. 123. See also M. Pazdan and M. Szpunar, Cross-Border Litigation of Unfair Competition over the Internet, cited above, p. 131.

( 27 ) Judgment of 3 October 2013, Pinckney (C‑170/12, EU:C:2013:635, paragraph 32 and the case-law cited).

( 28 ) This is confirmed by Advocate General Mollard in the opinion he delivered to the Court of Cassation in the case in the main proceedings, No H1416737, contested decision: [decision of] 6 February 2014 of the Court of Appeal, Paris, hearing of 22 September 2015 — FR (No 14).

( 29 ) See, in particular, the judgment, 27 October 1998, Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 27).

( 30 ) [French] translation [in the French-language version of this Opinion] provided by me. [English original of citation follows]. See Dow Jones and Company Inc v Gutnick [2002] High Court of Australia 56; 210 CLR 575; 194 ALR 433; 77 ALJR 255 (10 December 2002), 39 (Gleeson CJ, McHugh, Gummow and Hayne J.J.).

( 31 ) See point 49 of this Opinion. See E. Rosati, Brussels I Regulation and online copyright infringement: ‘intention to target’ approach rejected, Journal of Intellectual Property Law & Practice, 2014, vol. 9, No 1, p. 19.

( 32 ) Obviously, I (like the Commission) take the view that, if it proves to be the case that Concurrence enjoys exclusive distribution rights for territories outside France, the French courts, as the courts for the place where the loss occurred (see the judgment of 7 March 1995, Shevill and Others (C‑68/93, EU:C:1995:61), first criterion), would not have jurisdiction to adjudicate on any loss sustained in those other territories.

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