Non-contractual damage – which court to choose?
In the European Union, Regulation No 44/2001 is the legal act to rely on when determining the jurisdiction in civil and commercial matters. The general principle of the regulation is that a person should be sued in the court of the Member State where the person is domiciled. However, there are several important exceptions to the aforementioned general rule.
For example, in matters relating to non-contractual damage, art 5 (3) of the regulation enables the plaintiff to bring an action also in the court of the Member State where the harmful event occurred or may occur. The European Court of Justice (ECJ) has interpreted the aforementioned article so that the plaintiff may on its own discretion bring an action in the courts of the Member States where (i) the damage occurred or (ii) the event giving rise to the damage took place.
The above provides the plaintiff with a wider choice in cases where the unlawful action is committed in one Member State but the damage occurs in the other Member State. A similar situation occurred in a recent case of the ECJ where a German entity was using a keyword identical to a trademark registered in Austria on a search engine website operating under the top-level domain of Germany. The ECJ found that in such case the damage resulting from the infringement of the trademark occurred in the Member State where the trademark in question was registered. In addition, the court stated that the place of establishment of the advertiser using the keyword should be regarded as the place where the harmful event occurred since this was presumably the place where the defendant made its decision to use the keyword.
Accordingly, the plaintiff may have three options when choosing a proper jurisdiction in case of non-contractual damage: (i) the domicile of the defendant (ii) the place where the damage occurred (iii) the place where the event giving rise to the damage occurred.