(Judgment of the Court of Justice of the EU CaseC–292/10, G/Cornelius de Visser)

 

Nikolay Bandakov[1]

 

The aim of this article is to summarize the facts and the basic arguments in the reasoning of the Court of Justice of the European Union (ECJ) in case C–292/10 and to analyze them. More specifically the author examines the pattern of the Court’s logics as regards its answers to the questions i) whether the Brussels I Regulation remains applicable if the person who is alleged to have infringed the personality rights on the internet is only presumed to be a Union citizen and his whereabouts in the Union and his current domicile are not known; ii) whether it is permissible in this case that the national court seized regards the document instituting the proceedings serviced by public notice in accordance with the provisions of lex fori and on this basis to commence proceedings and pronounce default judgement on a claim for compensation for infringement of personality rights; iii) whether the claimant can undertake supplementary actions in his defence seeking enforcement of that judgement or alternatively whether he has the possibility to request the certification of that judgement as a European Enforcement Order.

It becomes obvious from the analysis of the answers given by the ECJ to these questions that the latter follows closely its former jurisprudence on similar matters. First of all, the ECJconfirmsthe formula of the judgement in the case Hypoteční banka whereas at the same time the ECJ continues to demonstrate flexibility in the interpretation of theconditions for application of the Brussels I Regulation. In that regard, the author attempts to find a plausible explanation of the question why the ECJ is ready to reduce the significance of the cornerstone of the Brussels I mechanism, that is, the requirement that the defendant has his domicile in one of the Member States. The author considers that the ECJ seeks to enforce the necessity for ensuring the effet utile of the Regulation in order that its uniform rules are applied in as many situations as possible. ForthatreasontheECJisreadytoacceptsecondary (alternative) connectingfactorsthatcanunlockthe doors of the Regulation. Such secondary criteria for the determination of the general jurisdiction of the courts of the Member States could, according to the ECJ, be the (presumed) European Union citizenship and the probable (understoodas “not absolutely certain”) domicile of the defendant on the territory of the EU.

The author is of the opinion that by this interpretation the ECJ establishes a rebuttable presumption that for the purpose of the application of the Regulation every European Union citizen should be considered to reside in one of the Member States. This presumption can be rebutted only upon submission of clear evidence that the defendant actually resides outside of the EU. In addition, the advantages and the disadvantages of that solution are discussed, as well as the probable cause of the latter and its possible future impact.

Next, it is noted that theCourt follows the same pragmatic approach inexamining the possibilities for pronouncing a default judgment where the document instituting the proceedings was serviced by public notice. In that regard the author analyzes the existing conflict between the two opposing interests of the claimant and the defendant, that is, the right to effective judicial protection of the defendant and the right of a fair trial of the claimant. It has been recalled that a possible reason for the Court to allow a more moderate interpretation of the strict requirement of Art. 26 (2) of the Brussels I Regulation could be the fact that the Regulation provides also additional guarantees for the protection of the defendant’s right of defence. Thus, in that case the defendant can rely on Art. 34(2) of the Regulation and can raise a valid objection against the enforcement of the default judgment.

Last but not least, it is argued that the ECJ follows the same pragmatic approach and defends the common values and fundamental principles of the cross-border enforcement of judgments. The ECJ logically rejects the possibility for enforcement of the default judgment in this specific situation, as well as its possible certification as a European Enforcement Order. In trying to explain the reasons for that solution the author elaborates on considerations 10—12 and Articles 12—14 and 21 of Regulation No 805/2004.

In conclusion, it is pointed out that despite the clearly pragmatic approach followed in the reasoning of the commented judgment the actual outcome of the latter from a real life perspective and from the point of view of a practising lawyer may be far from being pragmatic and efficient. It can be expected that the solution in De Visser would turn out to be applicable in very limited and exceptionally rare situations.

 

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Към цялата статия на бългрски език: ОТНОСНО ВЪЗМОЖНОСТИТЕ ЗА АНГАЖИРАНЕ НА ОТГОВОРНОСТТА НА СОБСТВЕНИЦИ НА УЕБСАЙТОВЕ С НЕИЗВЕСТНО МЕСТОЖИВЕЕНЕ ПРИ НАРУШЕНИЯ НА ПРАВАТА НА ЛИЧНОСТТА В ИНТЕРНЕТ

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[1] PhD Candidate in Private International Law, Faculty of Law — Sofia University “St. Clement Ohridsky” and lawyer linguist at the Directorate General “Translation” at the Court of Justice. The present publication represents exclusively the personal opinion of the author and does not engage the institutions mentioned.