Out-Law News 2 min. read
19 Mar 2012, 11:20 am
The ECJ was ruling in a case referred to it from a German court. In the case a woman, known only as 'Ms G', is trying to sue an internet publisher over an alleged breach of her 'personality rights'. Whilst the UK does not recognise individuals' personality rights within legislation, some countries such as Germany do.
In 2003 part-naked pictures of Ms G were taken and subsequently published on an website operated by Cornelius de Visser without her consent. Ms G was informed of the photos in 2009 by work colleagues and has tried to sue de Visser for breaching her personality rights since. However, she has been unable to locate the man at various addresses and through the serving of a public notice. It is thought probable that de Visser remains somewhere in the EU but his precise residence is unknown.
The German court had asked the ECJ if it had jurisdiction to press ahead with the legal proceedings and asked whether it also had the right to issue a default judgment against de Visser in his absence.
Generally the Brussels Regulation states that individuals can only be sued in the courts in the country in which they are based, regardless of nationality, other than in certain circumstances. Those circumstances include "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur".
However, if a case matter relates to 'tort, delict or quasi-delict' – in short if a wrongful act entitling others to damages is alleged or if an unlawful and either intentional or negligent harm is alleged – and other conditions are met, national courts have jurisdiction to issue a judgment by default, the ECJ said.
Those conditions require that national courts are "satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant" and that a "public notice" about the proceedings is served, it said.
The ECJ said that courts in member states have jurisdiction to rule in such cases due to the terms of EU law.
"Application of the national rules rather than the uniform rules of jurisdiction is possible only if the court seised of the case holds firm evidence to support the conclusion that the defendant, a citizen of the European Union not domiciled in the Member State of that court, is in fact domiciled outside the European Union," the ECJ said in its ruling.
"In the absence of such firm evidence, the international jurisdiction of a court of a Member State is established ... when the conditions for application of one of the rules of jurisdiction ... are met, including ... in matters relating to tort, delict or quasi-delict," the ruling said.
Those member state courts then have the right to issue default judgments under certain circumstances in spite of certain rights of the defendant, the ECJ said.
"It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the main proceedings, of ‘service by public notice’ constitutes a restriction of the defendant’s rights of defence," the ECJ said.
"That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, in the absence of such proceedings, that right would be meaningless. In contrast to the situation of the defendant, who, when deprived of the opportunity to defend himself effectively, will have the opportunity to ensure respect for the rights of the defence by opposing ... recognition of the judgment issued against him, the applicant runs the risk of being deprived of all possibility of recourse [if they are not allowed to take action when EU defendants probably based in the EU cannot be located]," the ECJ said.
The Charter of Fundamental Rights of the European Union states that everyone is entitled to "an effective remedy before a tribunal" if rights and freedoms they are guaranteed under EU law are violated.
