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*PIL Case Law

Published on March 1st, 2018 | by efi kloyeri


Summary: CJEU, C-498/16, Regulation (EC) No 44/2001 regarding assignment between consumers of claims against the same trader or professional

Key-words: Area of freedom, security and justice-Regulation (EC) No 44/2001-Articles 15 and 16-Jurisdiction in respect of consumer contracts-Definition of ‘consumer’-Assignment between consumers of claims against the same trader or professional

 A: The facts in the main proceedings and the questions referred

Mr Schrems is a user of the social network Facebook, having both a personal account as well as a page, which he uses in order to report to internet users on his legal proceedings against Facebook Ireland, his lectures, his participation in panel debates and his media appearances, as well as to call for the donation of funds and to publicise his books.

In 2011, he lodged before the Irish Data Protection Commissioner 23 complaints against Facebook Ireland with regard to the processing of personal data, and also brought an action before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna, Austria). Mr Schrems claims to have locus standi on the basis of both his own rights and similar rights which seven other contractual partners of the defendant in the main proceedings, who are, according to the applicant, also consumers and residing in Austria, Germany or in India, have assigned to the applicant for the purposes of his action against Facebook Ireland.

Facebook Ireland raised, inter alia, an objection that the action is inadmissible because international jurisdiction is lacking. The Court dismissed the action so Mr Schrems brought an appeal before the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria). That court amended that order in part. Both parties brought an appeal on a point of law (‘Revision’) against that judgment before the Oberster Gerichtshof (Supreme Court, Austria), which referred to the Court the following questions:

(1) Is Article 15 of Regulation … No 44/2001 … to be interpreted as meaning that a “consumer” within the meaning of that provision loses that status if, after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?

(2) Is Article 16 of Regulation … No 44/2001 to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled

(a) in the same Member State,

(b) in another Member State, or

(c) in a non-member State,

If the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims?

 Β. Legal Context

Articles 15 and 16 of the Regulation (EC) No 44/2001

 C.Consideration of the questions referred

Regarding the 1st question

Firstly, the Court stated that within the scheme of Regulation No 44/2001, the jurisdiction of the courts of the Member State in which the defendant is domiciled constitutes the general principle enshrined in Article 2(1) of that regulation. It is only by way of derogation from that principle that that provision provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Member State. The Court has also declared that the notion of a ‘consumer’ for the purposes of Articles 15 and 16 of Regulation No 44/2001 must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract.

Moreover, the special rules of jurisdiction in Articles 15 to 17 of Regulation No 44/2001 apply, in principle, only where the contract has been concluded between the parties for the purpose of a use of the relevant goods or services that is other than a trade or professional use. However, an interpretation of the notion of ‘consumer’ shouldn’t prevent an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. Such an interpretation would disregard the objective set out in Article 169(1) TFEU of promoting the right of consumers to organise themselves in order to safeguard their interests.

The Court ruled that:

Article 15 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 the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement do not entail the loss of a private Facebook account user’s status as a ‘consumer’ within the meaning of that article.

Regarding the 2nd question

 The Court held that, since the special system established in Article 15 et seq. of Regulation No 44/2001 is inspired by the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract, the consumer is protected only in so far as he is, in his personal capacity, the plaintiff or defendant in proceedings. Consequently, an applicant who is not himself a party to the consumer contract in question cannot enjoy the benefit of the jurisdiction relating to consumer contracts.

Under those circumstances, the Court ruled that:

 Article 16(1) of Regulation No 44/2001 must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member country.

Eftihia-Angie Klogkiri

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