Lawyer and activist Maximilian Schrems may, as the user of a private Facebook account, bring an action against the American social network for infringing his privacy in the courts of his country of residence but he may not act for other consumers who have assigned their claims to him, said Advocate General Michal Bobek in an opinion delivered on Tuesday, 14 November (case C-498/16).
Austrian citizen Maximilian Schrems, famous for being behind the annulment of the Safe Harbour agreement for transferring personal data of European citizens to the United States (see EUROPE 11404), lodged an action against Facebook Ireland with the Austrian courts, alleging that the social network had infringed his privacy and failed to protect his personal data. The action was also brought on behalf of seven other Facebook users living in Austria, Germany and India who assigned their claims to him.
Challenging the international jurisdiction of the Austrian courts, Facebook Ireland argues that Schrems cannot be considered as a consumer in this case but, because of his activities and the establishment of his Facebook page, must be seen as a professional. He cannot, therefore, use the Brussels I regulation (44/2001), which allows consumers to sue a foreign contract partner in the courts of their place of residence. Furthermore, this jurisdictional consumer privilege is strictly personal and cannot be relied on for assigned claims, the American company says.
In response to a request for clarification by the Supreme Court of Justice of Austria, the Advocate General takes the view that consumer status depends on the nature and aim of the contract at the time it was concluded. In his view, activities such as publishing, lecturing, operating websites and fundraising for the enforcement of claims –all of which Schrems has engaged in – do not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes. Schrems can, therefore, be considered a consumer with regard to his own claims arising from the private use of this Facebook account, Advocate General Bobek says. It remains, however, for the Austrian Supreme Court to verify this.
Class actions. The advocate general proposes to reply that a consumer who is entitled to sue his foreign contract partner in his own place of residence cannot at the same time invoke claims on the same subject assigned by other consumers domiciled in the same country or other EU countries or elsewhere in the world.
According to the advocate general, extending the jurisdictional consumer privilege would make it possible to choose, for the purposes of collective redress, the place of the more favourable courts by assigning all claims to a consumer domiciled in that jurisdiction. Such an extension could lead to unrestrained targeted assignment to consumers in any jurisdiction with more favourable case-law, lower costs and more generous jurisdictional aid, he adds.
Acknowledging the potential benefits of European class actions, Advocate General Bobek says, nonetheless, it is not for the Court to create such collective redress in consumer matters, but for the European legislator.
Reacting from Luxembourg in a video message published on his Twitter account, Schrems criticised the advocate general’s opinion that Austrian law on class actions can deal only with companies established in Austria. This opinion, he argues, runs counter to the position expressed by Germany, Austria, Portugal and, in part, the European Commission during oral submissions.
“There is an Austrian class action, that's the law in Austria. And the European law decides which member state is in charge of the case. And in our case, it should be Austria”, Schrems stated. He wondered why the Court had, two years earlier, allowed a class action by 71 companies in a cartel case (case C-352/13). (Original version in French by Mathieu Bion)