On July 29, 2019, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the Fashion ID case (Case C-40/17).   The CJEU found that when a website operator embeds Facebook’s “Like” button on its website, Facebook and the website operator become joint controllers. The case clarifies the relationship between website operators and social networking sites whose plug-ins are embedded into websites for user tracking and online marketing purposes.  The ruling is expected to influence the contractual terms that companies will need to have in place when embedding such social plug-ins to their websites, and may also have ramifications for adtech practices more generally.
Continue Reading CJEU rules that Facebook and website operators are joint controllers if the website embeds Facebook’s “Like” button

Today the Court of Justice of the EU (CJEU) issued its long-awaited judgment in Intel Corporation Inc. v European Commission. It sets aside the judgment of the General Court (GC) on the basis that the judges failed to assess the effects of the loyalty rebate schemes implemented by Intel on competition in the EEA. The CJEU refers the case back to the GC.


The Intel case concerns the supply of central processing units (CPUs) to original equipment manufacturers (OEMs). Following a complaint lodged in 2000 by Advanced Micro Devices (AMD), the European Commission (Commission) investigated two types of conduct by Intel:

  • Intel offered rebate schemes to four OEMs – Dell, Lenovo, HP and NEC – conditioned on them obtaining all or almost all of their requirements for x86 CPUs from Intel. In addition, Intel granted payments to one of its retailers, Media-Saturn-Holding (MSH), on the condition that it only sold computers containing Intel’s chips.
  • Intel made payments to HP, Acer and Lenovo on the condition that these OEMs postponed, cancelled or limited distribution of products using CPUs from AMD.

Continue Reading The European Court of Justice’s Judgment in Intel

The Court of Justice of the EU (‘CJEU’) has held that an exclusive choice of forum clause can validly be imposed by so-called “click-wrap” contracts in online B2B transactions (see Case C‑322/14, El Majdoub v. CarsOnTheWeb.Deutschland GmbH).   The ruling will make it easier for online businesses in the EU to impose a favorable choice of forum in their online B2B contracts, ensuring that they can sue defendants in courts of their own choosing, rather than the defendants’ local courts.

The general EU-wide rule for B2B contractual disputes is that a defendant must be sued in its local courts only (see “Brussels I” Regulation (Regulation (EC) No 44/2001)).  However, parties can waive the default rule by agreement “in writing” (Article 23(1)).

To deal with contracts concluded electronically, Article 23(2) states – in the English version of the law – that any “electronic communication” that “provides” a durable record of the agreement is equivalent to “writing”; the French and German versions refer to the mere “possibility” of a durable record being formed.

There has been some uncertainty as to whether mere hyperlinking to terms and conditions is a “communication”.  The case before the Court focused on this point, with the claimant arguing that the relevant terms and conditions should at least have been displayed (automatically) before they placed their order.

Taking a pragmatic view, the CJEU stated that the requirements of Article 23 are met if it is possible to print and save the text of online terms and conditions before a contract is concluded – even if the contractual terms are never actually displayed to the person accepting them.  Providing a hyperlink to a printable version suffices.

Although the Brussels I Regulation has been phased out (as of January 10th, 2015, in favor of the ‘recast’ “Brussels Ia” Regulation (Regulation (EU) No 1215/2012)), it is likely that the CJEU’s ruling in El Majdoub will equally apply to the new law, given that the relevant provisions of the new law (now contained in Article 25) are in effect identical to those in Article 23 of the original.Continue Reading Court of Justice of the EU Upholds Exclusive Jurisdiction Clauses in B2B ‘Click-wrap’ Contracts

On 3 October 2013, in the case of Peter Pinckney vs. KDG Mediatech AG, the Court of Justice of the European Union (CJEU) confirmed that, with certain qualifications, when a copyrighted work is reproduced in one Member State, and offered for sale online by companies established in another, the author of the work can bring an action for copyright infringement in the courts of their own home Member State if infringing copies are accessible from that State – even if that State is not among the States where the work was reproduced and/or made available online.
Continue Reading European Court Issues Ruling on Jurisdiction in Cross-EU Copyright Infringement Case

On June 27, 2013, the Court of Justice of the EU (CJEU) issued an important judgment on private copying levies.

The CJEU found that, when a copy can be made by a “single process” using a “chain of devices,” e.g., a PC and a printer linked with each other, Member States are free to establish a system where fair compensation is paid by those who are in possession of a device contributing to the single process of copying.  However, Member States must ensure that (i) any such system enables device manufacturers to pass the cost of the levy on to consumers;  and (ii) the overall amount of fair compensation owed as recompense for the harm suffered by the rightholders at the end of the single process must not be substantially different from the amount fixed for a reproduction by a single device.

The CJEU takes the view that the existence of anti-copying measures does not in itself negate the obligation to pay fair compensation. However, it is open to Member States to determine whether they make the actual level of compensation owed to rightholders dependent on the availability of such anti-copying measures. In addition, the CJEU found that a rightholder’s explicit or implicit authorization to copy its works has no bearing on its right to receive fair compensation.

This ruling must be seen in the context of the ongoing reform of the EU’s copyright levy system.  In January 2013, former Commissioner António Vitorino acting as a “mediator” on private copying and reprography levies delivered several recommendations to the European Commission.  For instance, he observed that liability for paying levies should be shifted from the level of manufacturers and importers to retailers level, and the levy tariff system should be simplified.  He also recommended that “harm” resulting from uncompensated private copying must be defined uniformly across the EU in order to ensure coherence.Continue Reading EU Member States Can Impose Copyright Levies on Devices such as Scanners, PCs, and Printers, Says CJEU

On 13 June 2013, Advocate General (“AG”) Niilo Jääskinen of the EU’s Court of Justice (CJEU) issued his non-binding Opinion in the Pinckney case, dealing with the question of courts’ competence to hear online copyright infringement cases in the EU.  In his Opinion, the AG extended to copyright principles developed in relation to other IP

InfoCuria and the UK Intellectual Property Office have released new information about a recent question referred to the Court of Justice of the European Union (CJEU) from the German Federal Supreme Court (Bundesgerichthof).  In essence, the reference asks the CJEU whether European courts, when considering copyright infringement in their territories, may deem contributory acts of infringement in other Member States as also having taken place within their jurisdiction.

More specifically, the reference, named HI HOTEL HCF (Case C-387-12) asks the CJEU to consider whether a court in one Member State has jurisdiction to rule both on a copyright infringement that occurred in its Member State, but also on the “contributing act” to that copyright infringement which took place in the territory of a second Member State by a person who assisted in the principal infringement on the domestic territory.  The CJEU is asked to interpret Article 5(3) of the Brussels I Regulation (Regulation 44/2001), which sets out that, for matters relating to tort (or, in civil law jurisdictions, delict or quasi-delict) a person domiciled in a Member State may be sued in another Member State if that is where the “harmful event” occurred or may occur.  The key question in the context of a cross-border copyright infringement is therefore where the “harmful event” occurs.
Continue Reading German Court Refers Question on Cross-Border Copyright Infringement to the CJEU