Internet jurisdiction? The Court of Justice gives an answer to this 'international intrigue'.
[:en]Published on 25.10.2012 a very important judgment of the Court of Justice which resolved an issue that had been open for several years. In fact, the European court was asked to decide on the possibility of an EU citizen, to be able appeal to the courts of the State in which it has its centre of interestsin order to claim compensation for the damage caused by the violation of one's rights to the person, by means of content placed on the web by a third party, via a website.
The Court was called upon to decide on two very similar issues:
- the first case had seen a German citizen, who had previously been convicted of murder and was later admitted to probation, apply to the German court for damages for content put online by an Austrian company, which infringed his personal rights;
- in the according toSimilarly, a French citizen sought an order to pay a sum of money against an English online newspaper that had published untrue information about him.
The Court of Justice, called upon to rule on these disputes, stated that there is the alternative course of action:
1. in the courts of the Member State where the person who has published the damaging content is established;
2. in the place where the injured party finds its centre of interest;
3. before the courts of any Member State on the territory of which anetworked information is accessible or has been accessible.
The judgment reasoned its decision on the basis of Article 5(3) of the Regulation (EC) 44/2001regulating, among other things, jurisdiction in the European context.
This rule, in fact, states that 'a person domiciled in one Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. "
Very interesting this judgement and certainly not insignificant, which gives certainty in another situation of violation of personal rights in the field meta-territorial, i.e. through the use of the web platform.
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Lawyer's fees and competent jurisdiction.
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Recently, with the ruling of the 12.10.2011 n. 2100the Supreme Court has pronounced itself by stating that "the remuneration for professional serviceswhich is not conventionally established, is a illiquid pecuniary debtto be determined according to the professional tariff; it follows that the optional hole of the place where the obligation is to be performed (Art. 20 c.p.c., second hypothesis)'should be identified, pursuant to the last paragraph of Art. 1182 c.c.in the debtor's domicile in that same
tempo".[1]
Applying this principle to a lawyer's professional activity, the practical implications of the aforementioned judgment are evident. As is well known, in fact, Art. 20 c.p.c.which regulates as an alternative forum to the general forum of the defendant (Article 18 c.p.c.). states that 'in actions relating to rights of obligation, the court of the place where [...] the obligation in question is to be performed shall also have jurisdiction".
According to the Supreme Court, therefore, if it is not established "ab origine"The parties are entitled to the payment of the remuneration of a professional, the claim cannot be characterised as liquid since it can only be determined once the service has been rendered. Therefore, Article 1182 para. 3 of the Civil Code, which provides that ".the obligation relating to a sum of money must be performed at the domicile of the creditor at the time it is due. "
Given the non-liquid and determinable nature of the claim should instead be applied, according to the Supreme Court Article 1182 last paragraphwhich provides instead for performance of the obligation at the debtor's domicile.
This principle is clearly also applicable to the profession of lawyer. In fact, its remuneration most of the time cannot be determined in advance, especially if it concerns judicial activity, since it is not possible to foresee the actual activity to be performed in the course of the proceedings. Therefore, according to this orientation of the Supreme Court, should a lawyer proceed to recover a debt arising from his own professional activity, he will have to act at the defendant's forum ex Art. 18 c.p.c. or of the debtor ex art 20 c.p.c.
ABSTRACT
- Remuneration for professional services, which is not agreed upon, is an illiquid pecuniary debt, to be determined according to the professional tariff
- The optional forum of the place where the obligation is to be performed (Art. 20 c.p.c.) is to be identified, pursuant to the last paragraph of Art. 1182 c.c., in the domicile of the debtor
- A lawyer wishing to proceed for the recovery of his own claim must act either at the defendant's court pursuant to art. 18 c.p.c. or at the debtor's court pursuant to art. 20 c.p.c..
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Jurisdiction in the international sale of movable property.
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Often the parties, who enter into an international contract of sale of movable goods, omit for various reasons to decide and define which court is competent to decide on a possible dispute concerning the contract itself.
In the absence of such a choice, it is necessary to identify the parameters dictated by the Regulation 44/2001. The same provides that:
- the court where the defendant has its residence is competent to decide (Art. 2.1);
- "a person domiciled in the territory of a Member State may be sued in another Member State" and specifically, in the case of the sale of goods, "the place, situated in a Member State, where the goods were delivered or should have been delivered under the contract" (Art. 5.1(b)).
E.g. An Italian company sells goods to a Swedish company. The parties agree that the goods are to be delivered to a dealer based in Spain. The Swedish company delivers the goods on time, but the Swedish company fails to perform.
The Swedish company wants to take legal action and turned to a lawyer for clarification.
Ex .art 2,1 reg. 44/2001 in this case (in the absence of choice of the parties) the competent jurisdiction is that of the defendant, i.e. the Swedish Jurisdiction.
In any case, theArticle 5.1(b) provides as a special forum, in the alternative, the court of the place where the goods were delivered or should have been delivered (Spain).
Therefore, the Italian seller (to his surprise) will have no right of action in Italy to demand payment for his goods.
It is important to emphasise that according to a United Sections of the Supreme Courtthis principle is also applicable where the seller intends to sue for the mere payment of the consideration.
On this point, the Supreme Court stated that 'on the subject of the international sale of goods, Article 5(1)(b) of the EC Regulation No. 44/2001 of 22 December 2000, is to be interpreted as meaning that, in contracts of sale, the obligation relied on in the action is to be understood as meaning not the obligation relied on by the plaintiff but the obligation characterising the contract and, therefore, in contracts for the sale of goods, that of delivery of the goods; Therefore, even in the case of an action relating to the mere payment of the consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods, which, if not established in the contract, will have to be identified with reference to the principles already affirmed by the ECJ, the place being determined according to the conflict rules of the court seised."[1]
ABSTRACT
in the absence of choice it is competent to adjudicate also on questions concerning the payment of consideration:
- the court where the defendant has his residence (Art. 2. reg. 44/2001)
- the court where the goods were to be delivered (Art. 5 reg. 44/2001)
- even in the case of an action relating to the mere payment of consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods
[1] Civil Cassation 2009 No. 3059 Giust. civ. Mass. 2009, 3, 479
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Jurisdiction under EC Reg. 44/2001.
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A problem that often arises in connection with contracts concluded by parties with residence or seat in different states concerns the choice of jurisdiction, i.e. figuring out which court is called upon to rule when the parties have not explicitly made that choice.
In civil and commercial matters between an Italian subject and a foreigner, one must firstly
distinguish, relations with counterparties in the European area and counterparties in countries outside that area.
- In the first case, the European legislation governed by the Regulation 44/2001 (Lugano Convention)
- In the second case, on the other hand, the general regime of the Act No. 218/1995 on Private International Lawunless the matter is directly regulated by bilateral conventions of the countries in question.
Analysing briefly the general discipline provided for by the European regulation, it is noted that it is provided for in theArticle 2.1 the general rule of jurisdiction of the defendant's court.
Based on this principle, therefore, in the absence of choice, if one of the parties is domiciled in an EU state, it must be sued in the court of that state.
(e.g. Italian plaintiff, Spanish defendant, but domiciled in Belgium, the contracting court is Belgian)
However, Regulation 44/2001 provides in Articles 5, 6 and 22 of the exemptions to this general principle or:
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of the domicile;
- Article 22 provides for a number of exclusive, i.e. non-derogable, forums, irrespective of the domicile of the defendant, such as rights in rem in immovable property, validity, nullity and dissolution of companies, registration and validity of patents and designs;
- the parties are nevertheless free to choose an exclusive forum by means of a clause extending jurisdiction (Art. 23).
ABSTRACT
In the absence of choice and if the relationship is between parties in the European judicial area, which State's courts are called upon to decide a dispute?
- Need to look at reg. 44/2001
- Article 2.1 of Regulation 44/2001 regulates the general principle of the jurisdiction of the defendant's court
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of domicile
- Article 22 provides for a series of exclusive, i.e. non-derogable, forums, regardless of the domicile of the defendant
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