Advocate General Wathelet issued a remarkable non-binding
opinion on 9 November 2016 in response to a question referred for a
preliminary ruling by the French Supreme Court to the Court of
Justice of the European Union (the "ECJ") in
Concurrence SARL v. Samsung Electronics France SAS and Amazon
Services Europe SARL (Case C-618/15). Concurrence,
one of Samsung's French dealers, had complained that other
Samsung dealers were selling products on Amazon websites with
French, German, Italian, UK and Spanish domain names. These sales
allegedly happened in breach of a contractual clause prohibiting
Samsung operates a selective distribution system for its
high-end products and prohibits its dealers from selling outside
the network, including over the Internet. Under French law, a party
assisting directly or indirectly in breaching the ban on sales
outside the network may be held liable. Concurrence therefore
requested a French court to require Amazon to withdraw these
products from its various websites. After that court and an appeal
court had both dismissed the action on the grounds that they lacked
jurisdiction over foreign websites not directed at the French
public, the French Supreme Court finally referred the question for
a preliminary ruling to the ECJ.
Contrary to the judgments of the French courts, Advocate General
Wathelet asserted that these courts do have jurisdiction and have
the power to order Amazon to withdraw offending products from its
The opinion considered the jurisdiction of the French courts on
the basis of Article 5(3) of Regulation 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters (the "Brussels I
Regulation"), building on previous case law regarding the
infringement of intellectual property rights. According to Advocate
General Wathelet, if the applicant can demonstrate that adverse
effects in the form of reduced sales and loss of profit are
suffered in France and that activities of foreign Amazon websites
contributed to such damage, French courts have jurisdiction over
the case and the applicant should be able to obtain an injunction
relating to these websites.
As this opinion is not binding on the ECJ, it is still uncertain
whether the ECJ will follow its Advocate General. If it does, this
could constitute a ground-breaking development and a further step
towards a generalised cross-border jurisdiction of Member State
courts in the EU.
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