Parties

In Case C‑278/09,

REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Tribunal de grande instance de Paris (France), made by decision of 6 July 2009, received at the Court on 22 July 2009, in the proceedings

Olivier Martinez,

MGN Ltd,

THE COURT (Eighth Chamber),

composed of C. Toader (Rapporteur), President of the Chamber, P. Kūris and L. Bay Larsen, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

makes the following

Grounds

Legal context

3. Article 61 EC states:

‘In order to establish progressively an area of freedom, security and justice, the Council shall adopt:

…

(c) measures in the field of judicial cooperation in civil matters as provided for in Article 65 [EC];

…’

‘1. 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 5(3) of Regulation No 44/2001 provides:

‘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;

…’

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

‘Must Article 2 and Article 5(3) of … Regulation … No 44/2001 … be interpreted to mean that a court or tribunal of a Member State has jurisdiction to hear an action brought in respect on an infringement of personal rights allegedly committed by the placing on-line of information and/or photographs on an internet site published in another Member State by a company domiciled in that second State – or in a third Member State, but in any event in a State other than the first Member State:

– either on the sole condition that that internet site can be accessed from the first Member State,

– or only when there is between the harmful act and the territory of the first Member State a link which is sufficient, substantial or significant and, in that case, whether that link can be created by:

– the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all hits on that page,

– the residence, or nationality, of the person who complains of the infringement of his personal rights or more generally of the persons concerned,

– the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s intention to address specifically the public of the first Member State,

– the place where the events described occurred and/or where the photographic images put on-line were taken,

– other criteria?’

The jurisdiction of the Court

10. Under Article 92(1) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action.

11. It must be noted that the Tribunal de grande instance de Paris takes as the basis for making its reference for a preliminary ruling Article 267 of the Treaty on the Functioning of the European Union. Since that treaty is not in force, it must be held that, in the current position under Community law, the reference must be deemed to be made on the basis of Articles 68 EC and 234 EC.

12. Article 68(1) EC provides that Article 234 shall apply to Title IV of the EC Treaty where a question on the interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law.

13. In the present case, the reference for a preliminary ruling concerns Regulation No 44/2001, which was adopted on the basis of Article 61(c) EC, which appears in Part Three, Title IV of the EC Treaty. In those circumstances, only a national court or tribunal against whose decisions there is no judicial remedy under national law may request the Court to give a preliminary ruling on the interpretation of that regulation.

14. It is not disputed here in the present case that decisions on jurisdiction taken by the Tribunal de grande instance de Paris in the main proceedings are amenable to appeal under national law.

15. Therefore, as the reference to the Court has not been made by a national court or tribunal as referred to in Article 68 EC, the Court has no jurisdiction to give a preliminary ruling on the interpretation of Regulation No 44/2001.

Costs

17. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds, the Court (Eighth Chamber) hereby orders:

The Court of Justice of the European Communities has no jurisdiction to answer the question referred by the Tribunal de grande instance de Paris in Case C‑278/09.