Agrégateur de flux

The CJEU’s interpretation of Article 7(2) Brussels Ia with regard to online defamation has long been criticized (including on this blog) for its lack of predictability, especially from the defendant’s point of view. While these concerns could, in many cases, be dismissed as purely academic, Case C-800/19 Mittelbayerischer Verlag seems to put them back on the agenda in a politically somewhat delicate context. AG Bobek’s Opinion on the case has been published today.

As a reminder, the legal framework emerging from the Court’s decisions in Shevill, eDate and Bolagsupplysningen can be summarised as follows: the victim of an alleged violation of personality rights can

• either seize the courts of their centre of interests (which regularly coincides with their domicile) and seek compensation of the entire damage as well as all other remedies,
• or seize the courts of each other Member State in which the content in question has been made available, with compensation being limited to the damage caused through publication in that Member State and ‘indivisible’ remedies such injunctions to rectify or delete not being available (the so-called ‘mosaic’ approach).
  

The case in Mittelbayerischer Verlag concerns the claim of a Polish holocaust survivor living in Poland, who is suing a German local newspaper who published an article on the internet that referred to a Nazi concentration camp in then-occupied Poland, using the phrase ‘Polish extermination camp’. As some readers might remember from a similar affair involving a German public broadcoaster and resulting in the refusal to enforce a Polish judgment by the German Bundesgerichtshof, Polish substantive law considers the use of the term ‘Polish extermination camp’ as an infringement of the personality rights of any Polish survivor of Nazi concentration camps because it could create the impression that those who have been prisoners in these camps may have played a role in their creation or operation.

Unlike the Court of Appeal of Kraków in the 2016 case, the Court of Appeal of Warsaw had doubts as to its international jurisdiction based on Article 7(2) Brussels Ia. While Warsaw clearly constituted the claimant’s centre of interest, the Court wondered if this was sufficient to render it competent for the entire range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology) given the circumstances of the case. In particular, the Warsaw court pointed out that the claimant did not claim to have personally accessed, let alone understood the article, which had only been online for a few hours; the claimant had also not been personally identified in the article in any way; the defendant, on the other hand, had not directed their article, or any other part of their online presence, to an audience in Poland.

The Warsaw Court of Appeal thus referred the following questions to the CJEU:

1. Should Article 7(2) [Brussels Ia] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) [Brussels Ia], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:
   – the public to whom the website on which the infringement occurred is principally addressed;
   – the language of the website and in which the publication in question is written;
   – the period during which the online information in question remained accessible to the public;
   – the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?’

In his Opinion, Advocate General Bobek (who had also rendered the AG Opinion in Bolagsupplysningen, calling for the abolition of ‘mosaic’ jurisdiction in cases of violations of personality rights) leaves no doubt that he still believes the current approach to Article 7(2) Brussels Ia to be imperfect (paras. 39–44). Yet, he argues that the present case is not the right place for its reconsideration because ‘the sticky issue in this case does not concern international jurisdiction, but rather the substance of the claim’ (para. 43). Thus, he proposes to adopt ‘a narrow and minimalist approach’ (para. 44).

He develops this approach through two steps. First, he explains why he does not believe that the question of whether or not the claimant has been named (or otherwise personally identified) in the publication in question provides a helpful criterion for the establishment of centre-of-interests jurisdiction (paras. 45–57) as there is ‘no visible line in the sand’ (para. 51) but rather

[55] … a fluid, continuum of possible ‘degrees of individualisation’ to be assessed in the light of the infinite factual variety of cases, when looking at a given statement assessed in its context with regard to a particular claimant.

In a second step, AG Bobek then explains that centre-of-interests jurisdiction as established in eDate nonetheless requires a certain degree of foreseeability to be reconciliable with the aims of foreseeability and sound administration of justice as required by Recitals (15) and (16) of the Regulation. He believes that such foreseeability does not depend on the subjective intent of the publisher but rather requires an objective centre-of-gravity analysis (along the lines suggested by AG Cruz Villalón in his Opinion on eDate):

[69] I would also caution against introducing, in essence, ‘a criterion of intent’ to online torts. The subjective intent of the publisher at the time of publication, if indeed discernable, may be used as an indication only. It is, however, not conclusive. Instead, what matters is whether, as deduced from a range of objective ‘items of evidence’, it could reasonably have been foreseen that the information published online would be ‘newsworthy’ in a specific territory, thereby encouraging readers in that territory to access it. Such criteria could include matters such as the subject matter of the publication, the top-level domain of the website, its language, the section in which the content was published, the keywords supplied to search engines, or the website access log.

[70] However, since those considerations apply to the impact side of Bier, that is to say, where the damage occurred, it is indeed logical that they focus on the objective, subsequent impact of a given publication from the point of view of the public, rather than being primarily concerned with the original and rather subjective intentions of a publisher. It is from this perspective that, in line with recital 16 of Regulation No 1215/2012, a clear objective connection between the action and the forum ought to be assessed, which then justifies the seising of jurisdiction, as a counterweight to the virtually unlimited geographical reach of online content.

This culminates in the following proposition:

[73] … [A]t the level of international jurisdiction, the issue of foreseeability ought to be properly characterised as enquiring as to whether a particular statement, in view of its nature, context and scope, could have caused harm to a given claimant within the given territory. It thus relates clearly to foreseeability and predictability of the given forum. It should not be reduced to the question of whether a particular publisher knew or could have known the domicile of a possible victim at the time the material was uploaded online.

Applied to the case at hand

[74] … it is indeed difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded.

Although unlike eDate and Bolagsupplysningen, the case has not been assigned to the Grand Chamber, making any proper reconsideration of the two former decisions unlikely, it certainly provides another opportunity for incremental adjustments. The AG’s proposition may just fit that bill.

The Société de législation comparée has published a liber amicorum in honour of Professor Iacyr de Aguilar Vieira entitled (in French): Études en l’honneur du Professeur Iacyr de Aguilar Vieira. This book has been coordinated/compiled by Gustavo Cerqueira and Gustavo Tepedino. More information is available here.

This book may be purchased by clicking here (and here). A more favorable price is available until 8 April 2021. Those who acquire the book now (by way of a “souscription”) may consent to having their name appear at the end of the book.

Contributions are written in French, English, Italian and Spanish and range from commercial law to private international law to law and literature. Please find below the details as announced:

Droit civil, droit des affaires, droit international privé, droit privé comparé, droit du commerce international, littérature et droit, constituent autant de champs d’étude que des passions pour Iacyr de Aguilar Vieira durant son intense et fructueuse activité de recherche et d’enseignement au Brésil comme en Europe.

C’est dans ces domaines que ses élèves, collègues et amis, européens et sud-américains, rendent aujourd’hui un hommage amical à cette universitaire empreinte de liberté.

Arnoldo Wald, Lettre-préface en hommage au Professeur Iacyr de Aguilar Vieira

Danièle Alexandre, Témoignage d’une amitié franco-brésilienne

 

I – Droit civil et droit des affaires

Guido Alpa, L’applicazione diretta dei diritti fondamentali ai rapporti fra privati

Margarida Azevedo, The evolution of the concept of contractual justice

Rodrigo Octávio Broglia Mendes, Notes on the concept of “economy of the contract”

Geoffray Brunaux, Efficacité et effectivité de la réglementation des activités du commerce électronique

Diogo Leite de Campos, Mónica Martinez de Campos, Le logement familial : (in)saisissable ?

Estelle Fragu, Fernanda Sabrinni, L’imprévu dans le contrat

Laurent Gamet, Les avocats et l’intelligence artificielle. Des outils et des hommes

Nicolas Kilgus, Le droit réel sui generis : entre perspectives et interrogations

Giovanni Lobrano, Dai “mezzi per difendere la libertà” ai modi di costituirla. Per “sbloccare” la dottrina giuridica

Kevin Magnier-Merran, Observations sur la délimitation des usages

Marc Mignot, Le corpus jurisprudentiel issu de l’ordonnance n° 45-770 du 21 avril 1945 sur la nullité des actes de spoliation accomplis par l’ennemi ou sous son contrôle et édictant la restitution aux victimes

Pierre Mousseron, Bernard Laurent-Bellue, Pour un Droit coutumier des sociétés

Cyril Noblot, Clause compromissoire et clause de conciliation préalable obligatoire : exercice de droit comparé interne français

Fabrice Rosa, Le pouvoir de réglementation des personnes privées dans la théorie générale des obligations en droit français

Antonio Saccoccio, Mutuo real, acuerdo de mutuo y promesa de mutuo en derecho romano

Anderson Schreiber, Pour le dépassement de la théorie de l’imprévision (en faveur de l’équilibre contractuel in concreto)

Michel Storck, Les agences de conseil en vote : à la recherche d’une régulation

Gustavo Tepedino, L’efficacia dei diritti fondamentali nelle associazioni: la costituzionalità dei criteri di ammissione differenziati nell’esperienza brasiliana

 

II – Droit international

Renaud Alméras, Réflexion sur le contrôle par le juge français des décisions étrangères de saisie pénale

Andrea Bonomi, Recognition of foreign judgments in Brazil: some comparative law remarks also in light of the 2019 Hague Judgment Convention

Jamile Bergamachine Mata Diz, Pedro Campos Araújo Corgozinho, La qualification et le caractère dynamique des biens en droit international privé brésilien

Gustavo Ferraz de Campos Monaco, Mobilité de personnes et droit international privé : un regard brésilien

Claudia Lima Marques, Pablo Marcello Baquero, Gouvernance mondiale et droit de la consommation

Fernanda Munschy, Autonomie de la volonté en Amérique Latine : 27 ans après l’adoption de la Convention de Mexico sur la loi applicable aux contrats internationaux

Nicolas Nord, La reconstruction des règles de conflit relatives au contrat de travail international. Etude du droit européen à l’aune des incohérences jurisprudentielles

Naiara Posenato, On the formation of the electio iuris agreement: some comparative insights

Camille Reitzer, Qualification et méthode de la reconnaissance

Carmen Tiburcio, Choice of court agreements : a comparative analysis

Alan Wruck Garcia Rangel, Échanges épistolaires en droit international privé : les consultations juridiques de José Carlos de Almeida Arêas dans les dernières décennies du XIXe siècle

 

III – Droit privé comparé et droit du commerce international 

Olivier Cachard, La méthode comparatiste et l’hybridation des droits. L’exemple de la lex Schuman lors du recouvrement de l’Alsace et de la Moselle.

Andreia Costa Vieira, Sustainable foreign direct investments for emerging and developing countries

Milena Donato Oliva, Pablo Renteria, Filipe Medon, La protection des données personnelles au Brésil et en Europe

José Angelo Estrella Faria, Competition among legal systems: the influence of rankings in stimulating commercial law reform

Franco Ferrari, Friedrich Rosenfeld, Les limites à l’autonomie des parties en matière d’arbitrage international

Ana Gerdau de Borja Mercereau, Responsabilité sociale de l’entreprise et l’arbitrage d’investissement

Anne Gilson-Maes, La famille et le contrat en droit français – Analyse à la lumière du droit comparé

Carlos Nelson Konder, Tramonto o revirement della causa del contratto: Influenze europee sul diritto brasiliano

Sabrina Lanni, Imprevisión contrattuale: esperienze latinoamericane e armonizzazione del diritto

Andrea Marighetto, La clausola della buona fede nel commercio internazionale. Natura giuridica e profili comparatistici occidentali

José Antonio Moreno Rodrígues, International Sales Law and Arbitration

Magalie Nord-Wagner, Le droit et la quête du bonheur en droit comparé

Francisco Pignatta, La nouvelle loi de protection des données au Brésil : le RGPD comme référence et les difficultés de sa mise en œuvre

Marilda Rosado de Sá Ribeiro, Fernanda Torres Volpon, Ely Caetano Xavier Junior, Contrats internationaux complexes et la responsabilité civile précontractuelle dans une perspective comparative

Claude Witz, Influences de la Convention de Vienne sur le législateur français

 

IV – Droit et littérature

Luiz Felipe Araújo, The Lost Pathos of Rhetoric: human being, power and affections on Law in Friedrich Nietzsche

Gustavo Cerqueira, Pour un dictionnaire juridique de notions et de phénomènes contemporains

Arnaud Coutant, Aux origines du mouvement droit et littérature, le Professeur John Henry Wigmore

Thibault de Ravel d’Esclapon, Molière et le droit. À propos de Scapin, de ses fourberies et de la justice

Emilien Rhinn, La littérature au service d’un idéal politique : nationalisme français et femmes alsaciennes-lorraines (1871-1918)

Nunziata Valenza Paiva, Il diritto nei confronti delle favole : il contributo della letteratura nella costruzione della base morale, civica e giuridica dei bambini

 

 

 

MCP
Espace de liberté, sécurité et justice
Selon l’avocat général Rantos, les juridictions d’un État membre sont compétentes pour statuer dans un litige parental quand un enfant, qui avait sa résidence habituelle dans cet État membre, est déplacé illicitement dans un État tiers où il acquiert sa résidence habituelle

In a judgement dated 18 November 2020, the French Supreme Court for private and criminal matters (Cour de cassation) ruled that the obligation to apply choice of law rules equally applies in interim proceedings. In contrast, the court had ruled in 1996 that French courts did not have the power to apply choice of law rules in interim proceedings.

Background

The case was concerned with a traffic accident which had occurred in Italy. A car driven by a French woman had run over a professional Australian cyclist living in Monte Carlo (which one is anyone’s guess). The victim initiated interim proceedings in France against the driver and her insurer seeking the appointment of a judicial expert and a provisional payment order.

Various provisions of the French Code of Civil Procedure grant French courts the power to issue provisional payment orders (référé provision) where a claim cannot be “seriously disputed”. Such orders may be granted in interim proceedings for up to 100% of the claim. They are not final, and in theory the defendant may always reopen the issue in the proceedings on the merits. In practice, defendants often do not bother and provisional payment orders are never challenged.

The issue in this case was whether the French court had the power, and indeed the duty, to apply French choice of law rules and, as the case may be, assess whether the claim was undisputable be reference to the law governing the substantive rights.

Applicable Law

The case was clearly concerned with a tort claim. In many Member states, the Rome II Regulation would have applied, but France is a party to the 1971 Hague Convention on the law applicable to traffic accidents. Pursuant to Article 28 of the Rome II Regulation, the Regulation does not affect the application of the 1971 Convention because it also applies in third states (Switzerland, Morocco, Ukraine, etc…).

The Hague Convention is of universal application, and it thus applied in French courts irrespective of the fact that the accident occurred in a third state, and designated the law of a third state. The choice of law rules of the Convention are pretty complex, and include a number of exceptions to the application of the law of the place of the accident, in particular where the car was matriculated, and the victim was outside the vehicle and resided, in the same country (art. 4), but that was not the case here. So Italian law likely applied as the law of the place of the accident (Article 3).

However, maybe because it had limited knowledge of private international law or, more likely, because it had no intention of applying Italian law, the court of appeal of Aix en Provence applied the Rome II Regulation and found that the exception clause in Article 4(3) allowed for the conclusion that French law was manifestely more connected to the tort.

The Cour de cassation did not even bother to comment on the application of the exception clause. It set aside the judgment of the court of appeal on the ground that it had applied the wrong choice of law rule, as it had failed to apply the Hague Convention.

Most importantly, it held that the court of appeal had the duty to apply the Hague Convention to determine the applicable law, “even in interim proceedings” (“même statuant en référé“).

Substance and Procedure

Although the judgment of the Cour de cassation is concise, its meaning is clear.

It is not that foreign law might be applied to procedure or to determine which provisional measures might be available. This is governed by the law of the forum. So, the availability of the two provisional measures sought by the  victim was entirely governed by French law, and so were the requirements for granting them. French law provided that provisional payment orders could only be granted if the claim could not seriously be disputed.

Many provisional measures, however, aim at protecting and anticipating substantive rights. Freezing orders protect the payment of a claim. Under French law, a provisional payment order anticipates the payment of a claim. The issue was whether the existence of such claim should also be assessed in accordance with the law of the forum, or whether it should be assessed in accordance with the law governing the relevant claim. The Cour de cassation rightly holds that it should be in accordance with the law governing the relevant claim.

Assessment

The judgment is right. There is no acceptable alternative to the application of the law governing the claim. If the law of the forum is applied, the resulting measures will protect imaginery rights. Another possibility would be to rule that, as foreign law cannot be applied in interim proceedings, the application should be dismissed where the law of the forum does not apply. For protective measures at least, this would border denial of justice. But this was the outcome of the 1996 judgment of the Cour de cassation where it was held that French courts did not have the power to apply choice of law rules to determine whether the creditor seeking a freezing order had a good arguable case, and the application denied.

Of course, time is typically of the essence in interim proceedings. The establishment of foreign law may then raise difficulties. But the establishment of facts raises the same difficulties. For certain proctective measures such as freezing orders, the answer is to lower the standard of proof. It is possible to do the exact same for establishing foreign law. German courts have so held in several cases: only the likelihood of the content of foreign law should be established at that stage.

For other provisional measures, the standard of proof is high, if not higher. This is the case for establishing that a claim cannot be seriously disputed under French civil procedure. But such measures are not urgent, and it would not be a denial of justice to deny the remedy and to await for the outcome of the proceedings on the merits.