Case C-618/15, Concurrence – a French court’s jurisdiction to hear a dispute involving Luxembourg’s Amazon [judgment 2016, ECLI:EU:C:2016:976]

Where a French shop is authorised to sell Samsung’s products in its store but not via its own website, can it ask the French courts to order Amazon to remove the sale of Samsung’s goods from Amazon’s websites in Denmark, the UK, Spain and Italy because consumers in France are able to buy Samsung’s goods via those websites?

Background
Concurrence is a retail store in Paris. It sells electronic goods to consumers. Some of the goods it sells come from Samsung. The supply of Samsung’s goods to Concurrence is regulated by a selective distribution agreement which it has concluded with Samsung.

However, the store also has its own website. Through its website, it also sells Samsung’s products. Samsung objects to this. It takes the view that the Concurrence-website is an online marketplace and under the agreement Samsung’s products are not to be sold via such sites.

Taking the view that Concurrence had breached the terms of the selective distribution agreement, Samsung sued Concurrence.

In turn, Concurrence decided to sue Samsung and requested a French court order the supply of Samsung’s products to it because of alleged discrimination in Samsung’s supplier arrangements – other companies were allowed to sell Samsung’s products online. In 2012, Concurrence was unsuccessful before one of the France’s appellate courts.

Undeterred, and believing that Samsung’s selective distribution agreements were again illegal, Concurrence decided to launch fresh litigation against Samsung; only this time, it brought Amazon into the dispute. Amazon is an American company with a headquarters in Luxembourg.

The legal difficulty with this case stems from the fact that generally defendants are to be sued in their home country but that there are exceptions to this.

The real difficulty though, is that the French company Concurrence, litigating in France, has also requested the French courts to require Amazon to remove Samsung’s goods that are for sale on several of Amazon’s websites that were directed to other EU Member States. That is to say, Amazon’s websites with the specific top-level domains ending with the EU Member State abbreviations of .de, .uk, .es and .it.

At first instance, the French judge declined jurisdiction to hear the case. The judge pointed out that in the event of an online website, disputes could only be heard in respect of the commerce which took place in France. Article 5(3) of the EU’s jurisdiction Regulation 44/2001 (OJ 2001 L12/1), governs ‘special jurisdiction’ and provides:

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

Thus, under Article 5(3) of the Brussels Regulation, the French court enjoyed no jurisdiction to hear a dispute in respect of Amazon’s non-French websites.

This approach was reaffirmed on appeal but there was a fresh appeal up to the French Court of Cassation.

At the French Court of Cassation
So could the French courts hear a case where the defendant was being sued in the claimant’s home country, and then order remedies that affected websites that were based elsewhere and targeted at consumers in other EU Member States?

The Court of Cassation set about fitting together the relevant planks of reasoning from the CJEU on a court’s jurisdiction in respect a website.

Thus, in the Wintersteiger judgment, the CJEU had permitted a court to consider a claim in respect of an advertiser, who had used a keyword identical to a trade mark that was registered in another Member State. The CJEU had explained:

22 In the context of the internet, the Court has also held that, in the event of an alleged infringement of personality rights, the person who considers that his rights have been infringed by means of content placed online on a website has the option of bringing an action for liability, in respect of all the damage caused, before the courts of the Member State in which the centre of his interests is based (see eDate Advertising and Others, paragraph 52).

Hence: an action in respect of all damage caused.

The French Court of Cassation observed that the CJEU had developed its case law in Case C-170/12, Pinckney ECLI:EU:C:2013:635. The facts to that case were that a vinyl record which contained 12 songs of an author-composer-performer who lived in France, had been copied without his permission. The tracks were then put onto a CD by a company in Austria. The Austrian CD had then been offered for sale via websites in the United Kingdom to consumers, including people who lived in France. In that case the issue was whether Mr Pinckney could sue in the French courts.

The CJEU in Pinckney had explained:

31 The Court has already interpreted Article 5(3) of the Regulation with respect to allegations of infringements committed via the internet and which may, as a result, produce their effects in numerous places (see, Joined Cases C-509/09 and C‑161/10 eDate Advertising and Martinez [2011] ECR I-10269 and Case C‑523/10 Wintersteiger [2012] ECR I-0000).

32 First, it is clear from that case-law that the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed (see, to that effect, Wintersteiger, paragraphs 21 to 24).
…
42 Thus, unlike Article 15(1)(c) of the Regulation, which was interpreted in Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof [2010] ECR I-12527, 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.

43 It follows 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.

Hence the issue was “in particular, that the activity concerned to be ‘directed to’ the Member State in which the court seised is situated”. Was that really the case here?

Madame Mouillard of the Commercial Chamber of the Court of Cassation felt that the existing case law of the CJEU did not cover the present situation. The novelty in this case was that the purpose of Concurrence’s claim was to end the harm which it was suffering from a clause in a selective distribution arrangement that banned it from offering goods for sale via its website despite the fact that products could also be purchased outside of a selective distribution network and via various other marketplace-websites in France and in other Member States. A preliminary reference to the CJEU was required.

Question Referred
According to the Curia website, the Cour de Cassation has asked:

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 via 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?