Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Lenaerts
• ECLI: ECLI:EU:C:2009:34
• Date: 27 January 2009
• Docket Number: C-533/07
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 27 January 2009 (1)

Case C‑533/07

Falco Privatstiftung and

Thomas Rabitsch

v

Gisela Weller-Lindhorst

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Regulation (EC) No 44/2001 – Article 5(1) – Jurisdiction in cases relating to a contract – Contract for the provision of services – Concept of ‘services’ – Licence agreement – Intellectual property rights – Continuity with the interpretation of the Brussels Convention)

Table of contents

I – Introduction

II – Legislative background

A – Regulation No 44/2001

B – The Brussels Convention

III – Facts, procedure in the main proceedings and the questions referred for a preliminary ruling

IV – Procedure before the Court

V – Arguments of the parties

A – The first question

B – The second question

C – The third question

VI – Appraisal

A – Introduction

B – The first question

1. Characteristics of a licence agreement

2. Interpretation of the second indent of Article 5(1)(b) of Regulation No 44/2001

a) Abstract definition of the term ‘services’ used in the second indent of Article 5(1)(b) of Regulation No 44/2001

b) Partial analogy with the definition of services in primary law

c) Importance of a uniform interpretation of Regulation No 44/2001 and the Rome I Regulation

d) Impossibility of drawing an analogy with the definition of services under Community legislation on value added tax

e) Positions adopted in academic writings

3. Conclusion

C – The second question

D – The third question

1. Amendment of the rules on jurisdiction in contractual matters: from the Brussels Convention to Regulation No 44/2001

a) Interpretation of Article 5(1) of the Brussels Convention

b) Reasons for amending Article 5(1) of the Brussels Convention

c) The reaction to criticism: Article 5(1) of Regulation No 44/2001

2. Interpretation of Article 5(1)(a) and (c) of Regulation No 44/2001

3. The relevance of Besix to the present case

4. Conclusion

VII – Conclusion

I – Introduction

1. Almost no other provision of Community law has been the subject, at the time of its adoption, of such intense negotiations leading to an unforeseeable outcome, or the target of so many critical reactions from academics than Article 5(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (known as ‘the Brussels I Regulation’; hereinafter ‘Regulation No 44/2001’). (2) The purpose of this provision is to determine the court having jurisdiction for cases relating to a contract. In relations between the Member States of the Community, that provision replaced Article 5(1) of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (3) (the ‘Brussels Convention’). For that reason, in interpreting the article in question the Court will have to pay considerable heed to the will of the Community legislature. At the same time, the Court will have to start its work at the point where the legislature stopped and tackle the far from easy task of giving a precise definition to the concepts contained in the article in question and determining the jurisdiction for individual types of contract.

2. The point at issue in the present case is whether, for the purpose of determining the court having jurisdiction, a contract between parties in different Member States in which the owner of intellectual property rights permits the counterparty to that contract to use that right (licence agreement) (4) can be regarded as a contract for the provision of services within the meaning of the second indent of Article 5(1)(b) of Regulation No 44/2001. At the same time, this case raises the question whether, in interpreting Article 5(1)(a) of Regulation No 44/2001, it is necessary to ensure continuity with the interpretation of Article 5(1) of the Brussels Convention.

3. This reference for a preliminary ruling has been submitted in the course of proceedings brought by the Falco Privatstiftung foundation and by Mr Thomas Rabitsch, applicants, against Ms Gisela Weller-Lindhorst, defendant, and relates to the non-payment of royalties which the defendant allegedly owed to the applicants under a licence agreement, in terms of which the defendant obtained a licence for the sale of video recordings of a concert for which the applicants claim copyright.

II – Legislative background

A – Regulation No 44/2001

4. Recital 2 of Regulation No 44/2001 states:

‘Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.’

5. Recital 12 of Regulation No 44/2001 is worded as follows:

‘In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.’

6. Recital 19 of Regulation No 44/2001 states:

‘Continuity between the Brussels Convention and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation of the Brussels Convention by the Court of Justice of the European Communities and the 1971 Protocol should remain applicable also to cases already pending when this Regulation enters into force.’

7. Chapter II of Regulation No 44/2001, entitled ‘Jurisdiction’, lays down provisions governing that matter.

8. In Section 1 of that chapter, entitled ‘General provisions’, Article 2(1) provides:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

9. In that same section of Chapter II, Article 3(1) provides:

‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

10. In Section 2 of the chapter on jurisdiction, entitled ‘Special jurisdiction’, Article 5 is worded as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

– in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c) if subparagraph (b) does not apply then subparagraph (a) applies;

…

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

…’

B – The Brussels Convention

11. Article 5(1) of the Brussels Convention provides:

‘A person domiciled in a Contracting State may, in another Contracting State, be sued:

1. in matters relating to a contract, in the courts for the place of performance of the obligation in question; …’

III – Facts, procedure in the main proceedings and the questions referred for a preliminary ruling

12. It is apparent from the order for reference that the first of the two applicants in the main proceedings, Falco Privatstiftung, is a foundation established in Vienna (Austria), which manages the copyright of the deceased Austrian singer Falco. The second applicant is Mr Thomas Rabitsch, domiciled in Vienna, a former member of that singer’s rock group. The defendant, Ms Gisela Weller-Lindhorst, who is domiciled in Munich (Germany), sold video (DVD) and audio (CD) recordings of a concert given by the singer and his group in 1993. The defendant signed a licence agreement with the applicants relating to the video recordings of that concert, under which she obtained the right to sell the recordings in Austria, Germany and Switzerland. Although the parties to the dispute agreed on a single edition of a promotional compact disc (CD) bearing an audio recording of the concert in question, the defendant did not sign any licence agreement with the applicants relating to the audio recordings. The purpose of the promotional CD was solely to advertise the video recording of the concert.

13. In the proceedings before the Handelsgericht Wien (Commercial Court, Vienna), the court of first instance, the applicants requested first that the defendant be ordered to pay royalties amounting to EUR 20 084.04 on the basis of partially known numbers of sales of the video recordings of the concert, and secondly that the defendant be ordered to provide an account of all the sales of video and audio recordings, to pay further royalties for video recordings on the basis of that account and to pay adequate compensation and damages for the audio recordings. The applicants requested payment of the above amounts on the video recordings on the basis of the licence agreement, whereas for the audio recordings they claimed infringement of their copyright in the recordings of the concert.

14. The court of first instance took the view that it had jurisdiction under Article 5(3) of Regulation No 44/2001, which governs jurisdiction in matters relating to tort, delict or quasi-delict. On the basis of that provision, it declared that it was competent to hear an action alleging infringement of copyright relating to the audio recordings, in that the latter were also sold in Austria. Given the close connection between the...