The Court of Justice of the European Union - Anti-American and anti-tech or merely Europe’s highest court?
This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Like most litigants receiving a judgment from Europe's highest and largest court, Google had a press release ready to greet the waiting media about its much-awaited case on the liability of internet companies. Moments after the fifteen-judge court ruled, Google issued its views with a blog headed, "European Court rules in Google's favour". It went on to say in that blog post"Google aims to provide as much information as possible to users so that they can make informed decisions" adding in the post: "[The Court] also confirmed that European law that protects internet hosting services applies to Google's [business model]. This is important because it is a fundamental principle behind the free flow of information over the internet."
Refresh browser: that cannot be true!
Didn't we learn this week that the Court entirely rejected Google's claims and held that Google was established in Europe and had so much control over the content of its pages that it breached 20-yearold EU privacy laws?
In fact, both statements are true. The blog post above was written on 23 March 2010 when Google was happy that the Grand Chamber applied EU legislation to an American company providing a dominant role in the indexing and monetising of internet content. That EU legislation - the so-called E-Commerce Directive - gave Google Inc a defence to what could otherwise have been an infringement of EU rights. This time around, that same court applied different EU legislation to the same American company providing the same (and larger) role.
The CJEU is not anti-American nor is it anti-Internet and certainly is not anti-freedom of expression.
Olswang's success before the Court for Yahoo! in 2012 is another example of a US internet player feeling well-treated by Europe's highest court.
But the Court is not "pro" or "anti" any business model nor a blinkered supporter of any particular country's citizen's or corporations. What it applies, since 1952 in over 28,000 judgments, isEuropeanlaw. Legislation crafted by a democratically-elected European Parliament representing now twenty-eight sovereign states. It does so without fear or favour, striking down even the activities of the very European countries that both founded and fund it, and sometimes siding with companies with headquarters on other continents, paying negligible taxes.
The most recent Google case was simply business-as-usual for the Court which in 2013, decided over 1,500 cases. The Court typically takes between one and two years to deliver its judgments - always unanimous and about half the time with the assistance of an Advocate General prior-published opinion. Very few of the cases before the Court involve the full Grand Chamber of fifteen judges, but instead call on a panel of three or five judges from the pool of around twenty-seven. These judges are called from all the member states of the European Union and as their resumes show, have varied backgrounds, often highly multicultural and multilingual.
Not all of these 1,500 cases were akin to Google's recent loss or win four years' earlier. Those two cases were examples of "references for a preliminary ruling". This is where a member state's court - not the litigants, note - has determined that it needs guidance on interpreting an area of European law. In US terms, these requests for preliminary rulings are akin to the Rule 19 of the Supreme Court, "certification of a question of law". Perhaps that is where the similarities end however as on average the CJEU accepts more requests a day than the US Supreme Court accepts adecade. Typically the Court provides about four-hundred rulings a year just like the one we are discussing here.
It's the Member State's court that refers a case to the CJEU and history shows that some Member States' courts are far more likely to refer than others. At Olswang we consider this as a strategic part of evaluating where, if there is a choice, a client should bring a substantive case. Statistically and politically, Germany is the country most likely to refer a case to the CJEU, responsible for over a quarter of the Court's referrals. Clients eager to obtain a ruling which will impact the whole of Europe, but able to wait the two years to get that ruling are advised - all things being equal - to work with our German litigation team.
If it's quicker, more certain and more local justice that is needed, our litigation teams in Belgium, France, Spain and the UK will use their sophisticated experience of the jurisdictional rules in their courts to export the case outside their territory. The courts in just these five offices handle over 55% of referrals to the Court. The other twenty-three Member States fill up the docket a couple of percent each, on average.
We have great experience of advising a client how to position a case to avoid or prompt a referral. We also have practical experience of knowing which court is the most likely to refer and so, how to best plan (and budget) for a case.
Some battle-weary clients and friends will be wondering just how a court with only 28 judges - and European vacations - can decide 1,500 cases a year. One way is the incredibly streamlined procedure.
Those litigants eager to roll out their 'jury' points and long lists of cases supporting their arguments need to rethink their approach and consider other ways of putting across their views such as through being supported by submissions from Member States - something we advise upon with due sensitivity and probity.
As Google has found out, this busy and experienced court, has its own rules and applies European law. It should come therefore as little surprise to Google and now no surprise to others that if you want to trade and profit from the 500 million citizens of Europe you will be bound by its laws.Si fueris Romae, Romano vivito more; si fueris alibi, vivito sicut ibi. When in Rome, do as the Romans do.
