European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Article 7(2) of Regulation No 1215/2012 makes it possible to sue the defendant in the courts for the place where the harmful event occurred or might occur. According to the Court of Justice, the courts for the place where the harmful event occurred are in principle “the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence [...]” . 
As determ …

Place where harmful event occurred

Article 7(2) of Regulation No 1215/2012 makes it possible to sue the defendant in the courts for the place where the harmful event occurred or might occur. According to the Court of Justice, the courts for the place where the harmful event occurred are in principle “the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence [...]” . 

As determining the place where the harmful event occurred is often difficult, in particular in case of plurality of damages in time or in space, the Court of Justice has laid down a rule according to which if the place where the event took place may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression “place where the harmful event occurred” must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, in the courts of either of the places . Where a manufacturer faces a claim of liability for a defective product, the place of the event giving rise to the damage is the place where the product in question was manufactured  whereas the place where the harmful event occurred refers to the place where the initial damage occurred as a result of the normal use of the product for the purpose for which it was intended . Thus, under competition law, in the event of a single and continuous infringement, the victim may bring a damages action against the participants either before the courts of the place in which the cartel was concluded or the place in which one agreement in particular was concluded which is identifiable as the sole causal event giving rise to the loss suffered, or before the courts of the place where its own registered office is located by virtue of the place where the loss occurred . The jurisdiction option must however be exercised in compliance with the requirements laid down by the regulation regarding foreseeability and close connecting factor with the dispute .  Article 7(2) only covers the place where the harmful event directly produced effects on the person who is the immediate victim. In the context of an action seeking compensation for damage caused by anticompetitive conduct, the term “place where the harmful event occurred” may be understood to mean either the place of conclusion of an anticompetitive agreement contrary to Article 101 TFEU, or the place of commission of acts exploiting the financial benefit resulting from that agreement, consisting, inter alia, in the application of predatory prices amounting to abuse of a dominant position under Article 102 TFEU; the “place where the harmful event occurred” may cover the place of the market which is affected by that conduct and on which the victim claims to have suffered those losses . In an action for compensation for damage caused by an infringement of Article 101 TFEU consisting of collusive arrangements on pricing and gross price increases for trucks, the “place where the harmful event occurred” covers the place where the market which is affected by that infringement is located, i.e. the place where the market prices were distorted and in which the victim claims to have suffered that damage, even where the action is directed against a participant in the cartel at issue with whom that victim had not established contractual relations .

In case of succession of damages in time, the place where the harmful event occurred cannot be construed so extensively as to encompass the place where the claimant is domiciled by reason only of the fact that he has suffered financial damage there resulting from the initial damage which arose and was incurred in another Member State , any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere , or the place where the indirect victim ascertained a damage resulting from the initial damage on its own assets . Where the damage consists in a purely financial loss occuring directly in the applicant's bank account and is the direct result of an unlawful act committed in another Member State, the place where the damage occurred may not be construed as being, failing any other connecting factors, the place in a Member State where the harmful event occurred . On the other hand, in a situation where  an investor brings, on the basis of the prospectus relating to a certificate in which he or she invested, a tort action against the bank which issued that certificate, the courts of that investor's domicile, as the courts for the place where the harmful event occurred have jurisdiction to hear and determine that action, where the damage the investor claims to have suffered consists in financial loss which occurred directly in that investor's bank account with a bank established within the jurisdiction of those courts and the other specific circumstances of that situation also contribute to attributing jurisdiction to those courts . Where there are a number of perpetrators, Article 7(2) of Regulation No 1215/2012 does not allow jurisdiction to be established on the ground of a harmful event imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seized .

The generating fact or the damage may also take place in several places. Thus, regarding libel by a newspaper article distributed in several Member States, which implies a plurality of damages located in different places, the place of the event giving rise to the damage is the place where the publisher of the newspaper in question is established, whilst the place where the damage occurred corresponds to all the places where the publication was distributed, provided that the victim is known there. The victim may then sue the defendant either before the courts of the Member State of the place where the publisher is established for all the harm caused by defamation, or before the courts of each Member State in which the article was published, which have jurisdiction to rule solely in respect of the harm caused in their territory .

Likewise, in the event of infringement of personality rights by means of content placed online on an internet website, the victim has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the center of his activities is based . Although the center of interests of a legal person and holder of personality rights which have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person may coincide with the place of its registered office, when all or the main part of its activities are carried out in a different Member State from the one in which its registered office is located, and the commercial reputation of that legal person is greater in that Member State than in any other, it is presumed that the courts of that Member State are best placed to assess the existence and the potential scope of that alleged injury. That legal person cannot, however, bring an action for rectification of that information and removal of those comments before the courts of each Member State in which the information published on the internet is or was accessible .

As regards infringements of intellectual property rights the center of interest of the victim  criterion cannot be implemented for determining the court having jurisdiction . The occurence of the harmful event giving rise to an infringement of copyright does not depend on whether the website concerned is directed to the Member State in which the court seized is situated but whether the photographs covered by that copyright are accessible in that State . In the case of an infringement of a trade mark registered in a Member State through the use, by an advertiser, of a keyword identical to that trade mark on the website of an internet search engine operating under a top-level domain different from that of the Member State where the trade mark is registered, in this case “google.de”, an action may be brought in the courts of the Member State in which the trade mark is registered, or in the courts of the place of establishment of the advertiser . Where the harmful event consists of an infringement of copyrights protected by the Member State of the court seized, the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State and which has, in the latter State, reproduced that work on a material support which is subsequently sold by companies established in a third Member State through an internet site also accessible with the jurisdiction of the court seized . For an infringement of the 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, the authorized distributor has the right to bring an action seeking an injunction prohibiting the resulting unlawful interference in the courts of the place where the damage occurred, i.e. the territory of the Member State which protects the prohibition on resale and on which the appellant alleges to have suffered a reduction in its sales . On the other hand, in the event of unlawful comparative advertising or unfair imitation of a sign protected by a Community trade mark, Article 7(2) of Regulation No1215/2012 does not allow jurisdiction to be established, on the basis of the place where the event giving rise to the damage resulting from the infringement occurred, for the court in that Member State whose unfair competition law has been infringed, where the presumed perpetrator who is sued there did not himself act there .

Lastly, the place where the event giving rise to the damage occurred or the place where the damage occurred may be impossible to find. The Court of Justice then chooses that of the places which does not raise any difficult localization. Where it is impossible to determine the place where the event giving rise to the damage occurred, the addressee of the goods damaged during the international maritime transport may bring proceedings before the courts in the place where the damage occurred, i.e. the court in the place where the actual carrier was to deliver the damaged goods . Likewise, in the event of damages resulting from industrial action and consisting in financial loss as a result of immobilizing a ship and leasing a replacement ship, the place of the event giving rise to the damage is the place where the notice of industrial action was served .

Case C-18/02 DFDS Torline [2004] ECR I-1417, LawLex200900000748JBJ.

Case 21/76 Handelskwekerij Bier v Mines de Potasse d'Alsace [1976] ECR 1735, LawLex200900001660JBJ. 

Case C-220/88 Dumez France and others v Hessische Landesbank and others [1990] ECR I-49, LawLex200900002346JBJ: the indirect victim - to whom the European court tacitly recognizes a right to compensation - does not have other jurisdiction options than those of the immediate victim, i.e. the court where the defendant is domiciled, that of the generating fact took place, or that of the place where the damage occurred.

Case C-12/15 Universal Music International Holding BV, Judgment of 16 June 2016, LawLex201600001117JBJ.

Case C-304/17 Helga Löber v Barclays Bank, Judgment of 12 September 2017, LawLex201800001272JBJ.

Case C-228/11 Melzer v MF Global UK Ltd, Judgment of 16 May 2013, LawLex201300000846JBJ.

Case C-68/93 Shevill and others v Presse Alliance [1995] ECR I-415, LawLex200900001093JBJ. 

Case C-509/09 eDate Advertising and others [2011], LawLex201200000126JBJ; but see Case C-800/19 Mittelbayerischer Verlag KG, Judgment of 17 June 2021, LawLex202100004328JBJ,  holding that the court of the place in which the center of  interests of a person claiming that his or her personality rights have been infringed by content placed online on a website is situated has  jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person individually.

Case C 194/16 Bolagsupplysningen OÜ, Ingrid Ilsjan, Judgment of 17 October 2017, LawLex201700001692JBJ.

Case C-523/10 Wintersteiger [2012], LawLex201200000635JBJ: in the case of infringement of a trade mark registered in a Member State by the publication on the internet site of a search engine of a keyword identical to that trade mark, the criterion of center of interests of the person whose rights have been infringed does not apply also to the determination of jurisdiction in respect of infringements of intellectual property rights, insofar as the protection afforded by the registration of a national mark is, in principle, limited to the territory of the Member State in which it is registered, so that, in general, its proprietor cannot rely on that protection outside the territory.

Case C-170/12 Peter Pinckney, Judgment of 3 October 2013, LawLex201300001433JBJ. 

Case C-523/10 Wintersteiger [2012], LawLex201200000635JBJ: in this case, the event giving rise to the harm is the activation by the advertiser of the technical process displaying, according to pre-defined parameters, the advertisement which it created for its own commercial communications which should be considered to be the event giving rise to an alleged infringement, and not the display of the advertisement itself, and the place of said event is the place of establishment of the advertiser.

Case C-45/13 Andreas Kainz, Judgment of 16 January 2014, LawLex201400000032JBJ, specifying that the interpretation of the place of the event giving rise does not take into account the interests of the victim thus enabling him to bring his action before a court of the Member State in which he is domiciled insofar as Article 5(3) [7(2) Regulation No 1215/2012] is specifically not designed to offer the weaker party stronger protection.

Case C-170/12 Peter Pinckney, Judgment of 3 October 2013, LawLex201300001433JBJ.

Case C-618/15 Concurrence SARL, Judgment of 21 December 2016, LawLex201600002144JBJ. 

Case C-360/12 Colty Germany GmbH, Judgment of 5 June 2014, LawLex201400002050JBJ.

Case C-51/97 Réunion européenne and others [1998] ECR I-6511, LawLex200900001016JBJ; the place where the damage occurred cannot be either the place of final delivery, which can be changed in mid-voyage, or the place where the damage was ascertained, which would lead to attribute jurisdiction to the courts for the place of the plaintiff's domicile, which the regulation precisely intends to avoid. 

Case C-189/08 Zuid-Chemie v Philippo's, Judgment of 16 July 2009, LawLex201100000485JBJ.

Case C-352/13 Cartel Damage Claims, Judgment of 21 May 2015, LawLex201500000644JBJ.

Case C-51/97 Réunion européenne and others [1998] ECR I-6511, LawLex200900001016JBJ.

Case C-27/17 AB "flyLAL-Lithuanian Airlines", Judgment of 5 July 2018, LawLex201800001095JBJ.

Case C-451/18 Tibor-Trans Fuvarozó és Kereskedelmi Kft. v DAF Trucks NV, Judgment of 29 July 2019, LawLex201900000991JBJ.

Case C-168/02 Kronhofer [2004] ECR I-6009, LawLex200900000674JBJ: the jurisdiction option cannot cover the place where the claimant is domiciled and where 'his assets are concentrated' by reason only of the fact that the claimant has suffered financial damage there resulting in the loss of part of his assets which arose and was incurred in another Contracting State.

Case C-364/93 Marinari v Lloyd's Bank [1995] ECR I-2719, LawLex200900000531JBJ; C-189/08 Zuid-Chemie [2009] ECR I-6917, LawLex201100000485JBJ.

European Business Law

333. Place where harmful event occurred

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

333. Place where harmful event occurred

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise