Kearns v European Commission
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 25 October 2005 |
| Neutral Citation | [2005] IEHC 324 |
| Court | High Court |
| Docket Number | [2002 |
| Date | 25 October 2005 |
[2005] IEHC 324
THE HIGH COURT
BETWEEN
AND
RSC O.4 r1A
EEC REG 44/2001 ART 5(1)
EEC REG 44/2001 ART 5(3)
RSC O.122 r11
BERNE CONVENTION ART 3(1)(a)
COPYRIGHT & RELATED RIGHTS ACT 2000 S1
COPYRIGHT & RELATED RIGHTS ACT 2000 S2
COPYRIGHT & RELATED RIGHTS ACT 2000 S3
COPYRIGHT & RELATED RIGHTS ACT 2000 S4
COPYRIGHT & RELATED RIGHTS ACT 2000 S5
COPYRIGHT & RELATED RIGHTS ACT 2000 S6
COPYRIGHT & RELATED RIGHTS ACT 2000 S7
CONSTITUTION ART 40.3
COPYRIGHT & RELATED RIGHTS ACT 2000 S139(2)
COPYRIGHT & RELATED RIGHTS ACT 2000 S139(3)
COPYRIGHT & RELATED RIGHTS ACT 2000 S139(4)(b)
COPYRIGHT & RELATED RIGHTS ACT 2000 S127(3)
EEC REG 44/2001 CHAPTER II S7 ART 24
TREATY OF ROME ART 249
TREATY OF ROME ART 235
TREATY OF ROME ART 288 PARA 2
AKTIEN ZUCKERFABRIK SCHOPPENSTEDT v COUNCIL 1971 ECR 975
LUTTICKE v COMMISSION 1971 ECR 325
UNION MALT v COMMISSION 1978 ECR 57
COPYRIGHT & RELATED RIGHTS ACT 2000 CHAP 9
EUROPEAN COMMUNITIES ACT 1972 S2
EUROPEAN COMMUNITIES (AMDT) ACT 1973
EUROPEAN COMMUNITIES (AMDT) ACT 2003
CONSTITUTION ART 29
CONSTITUTION ACT 1972 3RD AMDT SCHED II PART II
TREATY OF ROME ART 10
COSTA v ENEL 1964 ECR 585
INTERNATIONAL HANDELSGESELLSCHAFT MBH 1970 ECR 1125
COMMISSION v ITALY 1972 ECR 529
SIMMENTHAL SPA 1978 ECR 629
COMMISSION v UK 1990 ECR 2433
TREATY OF ROME ART 240
GRANARIA BV v HVA 1979 ECR 623
ASTERIS AE v HELLENIC REPUBLIC & EEC 1988 ECR 5515
EUROPEAN COMMUNITIES v FIRST NV & FRANEX NV 2002 ECR 10943
BERNE CONVENTION ART 5
BERNE CONVENTION ART 36
EEC REG 44/2001 CHAP VII ART 67
COMPAGNIE MARITIME BELGE TRANSPORTS v COMMISSION 1996 ECR II 1201
COURTS
Jurisdiction
Non-contractual liability of European Commission - Appropriate forum for adjudication - Jurisdiction of court to hear and determine issues - Whether exclusive jurisdiction to European Court of Justice to hear and determine non-contractual liability of European Commission - Whether High Court should decline jurisdiction - Copyright and Related Rights Act 2000 (No 28) -Council Regulation (EC) 44/2001, art 5(1)and (3) - Treaty establishing the European Community, arts 235 and 288 - Constitution of Ireland 1937, art 29.4.10 - Jurisdiction declined, proceedings dismissed (2002/15921P - Herbert J - 21/10/2005)[2005] IEHC 324, [2006] 1 ILRM 496
Kearns v European Commission
Facts: The plaintiffs' claimed damages for infringement of copyright, infringement of their right of paternity, false attribution of authorship and conversion. By Notice of Motion, the defendant sought an order dismissing proceedings on the basis that the Court had no jurisdiction to hear and determine the plaintiffs' claim having regard to Articles 235 and 288 of the E.C. Treaty, which vested exclusive jurisdiction in relation to claims concerning the non-contractual liability of the E.C. for actions by its institutions in the European Court of Justice (ECJ) to the exclusion of any National Court.
Held by Herbert J. in dismissing the proceedings: That the plaintiffs' claim was based solely on non-contractual liability for damage allegedly caused to the plaintiff by the institutions or by one or more servants of the Community acting within the scope of their official duty and accordingly the claim came within the provisions of Article 288, paragraph 2 and was maintainable only by virtue of that provision. Article 235 of the E.C. Treaty conferred exclusive jurisdiction on the European Court of Justice in respect of claims to which Article 288 Part 2 applied and consequently this Court had no jurisdiction to hear and determine the plaintiff's claim.
Reporter: L.O'S.
JUDGMENT of Mr. Justice Herbert delivered the 21st day of October, 2005
The Originating Document, in this case a Plenary Summons, issued on 12th December, 2002. It was endorsed, as required by the provisions of Order 4 Rule 1A of the Rules of the Superior Courts, with a statement that this Court has power, under Council Regulation (E.C.) Number 44/2001 of the 22nd December, 2000, to hear and determine the claim under the Provisions of Article 5(1) and (3) of Council Regulation (E.C.) Number 44/2001.
On 7th January, 2004, a Memorandum of Appearance to Contest the Jurisdiction of the Court to hear and determine the Plaintiffs" claim was entered on behalf of the European Commission and, delivery of a Statement of Claim was required.
On 15th March, 2005, a Notice of Intention to Proceed with the action was served by the Defendant in compliance with the provisions of Order 122 rule 11 of the Rules of the Superior Courts, advising that on the expiry of a period of one month from that date, the Defendant would issue a Motion seeking the dismissal of the Plaintiffs" claim on the grounds that the High Court did not have jurisdiction to hear and determine claims concerning the non-contractual liability of the European Community for the actions of its institutions.
A Notice of Change of Solicitor was served by the Plaintiffs on the Defendant on the 25th May, 2005.
At paragraphs 1 and 2 of the claim endorsed on the Plenary Summons, the Plaintiffs seek a Declaration that they are the author and licensee and, the legal and beneficial owners of the copyright in an artistic work known as the, "Contra Device", or, "the Euro Symbol".
At paragraphs 3, 4 and 5 of this general endorsement of claim, the Plaintiffs seek a Declaration that the European Commission, their servants or agents, knowingly infringed the Plaintiffs" right of paternity and copyright in this artistic work and, falsely attributed its authorship to persons other than the Plaintiffs.
In the general endorsement of claim the Plaintiffs" claim damages for infringement of copyright, infringement of the Plaintiffs" right of paternity, false attribution of authorship and, conversion together with further and other reliefs.
By a Motion on Notice dated 18th April, 2005, returnable for 9th May, 2005, the Defendant at paragraph 1 sought:-
"An Order that the proceedings herein be dismissed on the grounds that this Honourable Court has no jurisdiction to hear and determine the Plaintiffs" claims having regard to Articles 235 and 288 of the E.C. Treaty which vest exclusive jurisdiction in relation to all claims concerning the non-contractual liability of the European Community for actions by its institutions in the European Court of Justice to the exclusion of any National Court."
This notice of motion was grounded on the Affidavit of Damien Young, Solicitor, of the Firm of Phillip Lee, of Fitzwilton House, Wilton Place, Dublin, 2, Solicitors on the Court record as representing the Defendant, sworn on 18th day of April, 2005.
A Replying Affidavit was sworn by the first named Plaintiff on 25th May, 2005. Paragraphs 12, 13, 14 and 15 of this Affidavit state as follows:-
2 "12. On the question of jurisdiction, I submit that Council Regulation (E.C.) No. 44/2001 holds itself subject, under paragraphs (4) and (5) of the preamble to "any international treaties" already in place, including the Berne Convention; while the Berne Convention is not specific in regard to jurisdiction, the well-established principle is that actions are heard in the jurisdiction where the protection was first sought, in this case Ireland, and I therefore plead protection under Article 3(1)(a) of the Berne Convention.
13. Therefore, I pray this Honourable Court to deny the Motion to Dismiss on the grounds of jurisdiction.
14. Because the Defendant refused to acknowledge my or any copyright in the disputed symbol under the provisions of the Copyright and Related Rights Act, 2000, Sections 1 – 7, (3) I pray the Honourable Court to take this Affidavit as my pleading to this Honourable Court to exercise its function in vindicating my intellectual property rights under the Constitution of Ireland, Article 40, (3), 2, and under the provisions of the Berne Convention to exercise its authority in refusing the Motion to Dismiss.
15. Further, I pray the Honourable Court under Section 139, (2) of the Copyright and Related Rights Act, 2000 to presume that Copyright exists in the work in question, under Section 139, (3) to presume that I am the owner of the right and my client, Irish Bartering Services Limited, is the exclusive licensee, and under Section 139, (4)(b), that the symbol appended to the published work is sufficient evidence that a person is the owner or exclusive licensee of the Copyright in the work."
A further Affidavit was sworn by Mr. Damien Young on 27th May, 2005. I find, however, that the several averments in this Affidavit do not touch upon the issue of jurisdiction. An additional Replying Affidavit was sworn by the first named Plaintiff on 13th June, 2005. I consider it necessary to set out in full paragraphs. 3 to 7 inclusive of this Affidavit which are in the following terms:
2 "3. Further, on reviewing my first Affidavit for other possible misinterpretations I say to this Honourable Court that I may have through lack of precision, put the legal cart before the horse in pleading the Berne Convention as the superior instrument in this case; the invocation of the international Berne Convention is of course predicate upon the exercise of the relevant Irish National Statutory instrument, in this case the Copyright and Related Rights Act, 2000.
4. Further, under the provisions of Article 67 of the E.C. 224/200, the aforesaid Act is a qualifying Harmonised instrument of national legislation, thereby governing jurisdiction in this case. [the Court assumes this to be a reference to Council Regulation (E.C.) No....
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