ECJ Clarifies Extent Of Consumer Jurisdictional Privilege In Relation To Personal And Assigned Claims For Breach Of Data Rights

On 25 January 2018, the Court of Justice of the European Union ("ECJ") issued its judgment in Case C-498/16 Maximilian Schrems v. Facebook Ireland Limited. The ECJ follows the opinion of Advocate General Bobek (the "AG") to clarify the extent of the consumer jurisdictional privilege (see VBB on Belgian Business Law, Volume 2017, No. 11, p 3, available at www.vbb.com).

Maximilian Schrems is a well-known Austrian activist in the field of technology and electronic privacy. Previously, Mr. Schrems had successfully challenged the transfer of data from the EU to the US through the Safe Harbour regime (see VBB on Belgian Business Law, Volume 2015, No. 9, p. 10 and No. 10, p. 8, available at www.vbb.com).

In the present case, Mr Schrems sued Facebook Ireland, the European subsidiary of Facebook Inc, for alleged violations of his privacy and data protection rights, as well as those of seven other Facebook users. Mr Schrems initiated proceedings in the Austrian courts, relying on the consumer jurisdictional privilege provided for in Article 16(1) of the now repealed Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels I Regulation"). This provision allows consumers (i.e., non-commercial parties) to sue the other party to a contract in the courts of the EU Member State in which the consumer is domiciled. Article 18(1) of the currently applicable Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels Ibis Regulation") contains similar terms. Article 15(1) of the Brussels I Regulation (reproduced in Article 17(1) of the Brussels Ibis Regulation) limits this jurisdictional privilege to "matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession".

Facebook contested the jurisdiction of the Austrian court, which therefore asked for clarification from the ECJ in the form of a preliminary reference. Facebook argued that (i) Mr Schrems was not a consumer, given the public nature of his activities on the site; and (ii) any consumer jurisdictional privilege that Mr Schrems enjoys cannot extend to the claims assigned to him by other Facebook users.

Mr Schrems maintained two presences on Facebook. The first, an "account" was for personal use. The second, a...