18.12.2010

Official Journal of the European Union

C 346/23

(Case C-292/10)

()

2010/C 346/38

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Cornelia Buschmann

Defendant: Cornelius de Visser

Questions referred

(a)Does the first half-sentence of the first subparagraph of Article 6(1) of the Treaty on European Union as amended by the Treaty of Lisbon (‘TEU’), in conjunction with the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘CEU’), or other European legislation preclude ‘service by public notice’ under national law (pursuant to Paragraphs 185 to 188 of the German Zivilprozessordnung (Code of Civil Procedure), through the posting for one month of the notification of the service on the notice board of the court ordering the notification) if the opponent in a civil action (in its very early stages) gives an address in the territory of the European Union (‘Union territory’) on his website, but service is not possible because the defendant’s whereabouts in the Union territory are not known and it cannot otherwise be established where he is currently residing?

(b)If the answer to Question 2(a) is in the affirmative: Must the national court refuse, in accordance with past case-law of the Court (most recently Case C-341/06 …), to apply national rules permitting service by public notice even if national law grants such power of rejection only to the (German) Bundesverfassungsgericht (Federal Constitutional Court)? and Should the applicant communicate to the court a new address at which a further attempt can be made to serve the application on the defendant to enable her to assert her rights, since under national law the trial could not be conducted without service by public notice and without knowledge of the defendant’s whereabouts?

(c)If the answer to Question 2(a) is in the negative: Is, in the present case, a default judgment pursuant to Paragraph 331 of the Zivilprozessordnung, that is an enforcement order for uncontested claims within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims (‘Regulation No 805/2004’), precluded by Article 26(2) 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 (‘Regulation No 44/2001’), in so far as an order is sought for the payment of compensation for pain and suffering amounting to at least EUR 20 000,00 plus interest and legal costs of EUR 1 419,19 plus interest?

(d)Having regard to Article 4(1) and Article 5(3) of Regulation No 44/2001, is that Regulation also applicable in cases in which the whereabouts of the defendant in a civil action, who has been sued for an injunction, information and compensation for pain and suffering because of the operation of a website, who is (presumed to be) a Union citizen within the meaning of the second sentence of Article 9 TEU, are unknown, it therefore being conceivable, but by no means certain, that he is currently residing outside the Union territory and also outside the residual treaty area governed by the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Lugano on 16 September 1988 (‘Lugano Convention’), and the precise location of the server on which the website is stored is also unknown, although it seems logical to assume that it is in the Union territory?

(e)If Regulation No 44/2001 is applicable in this case, is the phrase ‘the place where the harmful event … may occur’ in Article 5(3) of that Regulation to be interpreted as meaning, in the event of (possible) infringements of personality by means of content on an Internet website, that the person concerned (‘applicant’) may also bring an action for an injunction, for information and for compensation for pain and suffering against the operator of the website (‘defendant’), irrespective of where the defendant is established (in or outside the Union territory), in the courts of any Member State in which the website may be accessed, or is it necessary, in order for the courts of a Member State in which the defendant is not established or there are no indications that he is resident to have jurisdiction, that there be a special connection between the contested content of the website and the State of the court seised (domestic connecting factor) going beyond technically possible accessibility?

(f)If such a special domestic connecting factor is necessary: What are the criteria which determine that connection? Does it depend on whether the intention of the operator is that the contested website is specifically (also) targeted at Internet users in the State of the court seised or is it sufficient for the information which may be accessed on the website to have an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests — the applicant’s interest in respect of her right to protection of personality and the operator’s interest in the design of his website — may actually have occurred or may occur in the State of the court seised or has occurred, in that one or more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website?

(g)Does the determination of the special domestic connecting factor depend upon the number of times the website to which the applicant objects has been accessed from the State of the court seised?

(h)If the referring court has jurisdiction for the action according to the above questions: Do the legal principles laid down in the Court’s judgment in Case C-68/93 … also apply in the case described above?

(i)If no special domestic connecting factor is required in order to make a positive finding on jurisdiction, or if it is sufficient for the presumption of such a special domestic connecting factor that the information to which the applicant objects has an objective connection to the State of the court seised, in the sense that in the circumstances of the individual case, in particular on the basis of the content of the website to which the applicant objects, a collision of conflicting interests may actually have occurred or may occur in the State of the court seised or has occurred, in that one of more acquaintances of the person whose right to protection of personality has been infringed have taken note of the content of the website, and the existence of a special domestic connecting factor may be presumed without requiring a finding as to a minimum number of times the website to which the applicant objects has been accessed from the State of the court seised, or Regulation No 44/2001 is in no way applicable to the present case: Must Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) be interpreted as meaning that those provisions should be attributed with a conflict-of-laws character in the sense that for the field of private law also they require the exclusive application of the law applicable in the country of origin, to the exclusion of national conflict-of-law rules, Or do those provisions operate as a corrective at a substantive law level, by means of which the substantive law outcome under the law declared to be applicable pursuant to the national conflict-of-law rules is altered and adjusted to the requirements of the country of origin?

(j)In the event that Article 3(1) and (2) of the Directive on electronic commerce have a conflict-of-laws character: Do those provisions merely require the exclusive application of the substantive law applicable in the country of origin or also the application of the conflict-of-law rules applicable there, with the consequence that a renvoi under the law of the country of origin to the law of the target State remains possible?

(k)In the event that Article 3(1) and (2) of the Directive on electronic commerce have a conflict-of-laws character: Must the designation of the place of establishment of the service provider be geared to his (presumed) current whereabouts, his whereabouts when the publication of the photographs of the applicant first began or the (presumed) location of the server on which the website is stored?