On 14 November 2017 Advocate General Bobek issued his opinion on the case C-498/16, Schrems v. Facebook Ireland Limited. In his opinion:
“On the basis of Article 16(1) of Regulation No 44/2001 a consumer cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other places of the same Member State, in other Member States or in non-member States”
The preliminary ruling arose out from a claim brought by Mr. Schrems, domiciled in Austria, against Facebook, domiciled in Ireland, in which it was alleged that Facebook had committed a number of infringements of the EU data protection rules. The claim was filed by Mr. Schrems before the Austrian Courts and it also included claims from other consumers domiciled in Austria, Germany and India who had assigned their claims to Mr. Schrems. Apparently, 75.000 consumers from all over the EU (and worldwide) had also assigned their claims to Mr. Schrems although those claims have not been formally brought into the proceedings yet.
Mr. Schrems argued, inter alia, that his action should be permitted because it was brought on behalf of consumers who are worthy of special protection and because it would foster collective redress, effective judicial protection and avoid multiple concurrent proceedings. On the other hand, Facebook argued that Mr. Schrems lacked jurisdiction to bring the assigned claims under article 16 of Regulation 44/2001 because Mr. Schrems was not party to the contractual relationship between Facebook and the assignors.
The Advocate General sided with Facebook reasoning that it is clear from the wording of article 16 that only consumers party to a contract may sue in the court where they are domiciled. Inter alia, the Advocate General further reasoned that interpreting article 16 as Mr. Schrems proposed would create a new forum for the consumer-assignee not expressly provided by the Regulation.
Interestingly, in dictum, the Advocate General expressed his view that a number of arguments advanced by Mr. Schrems were of policy in nature and that, no doubt, collective redress could, if well designed and implemented, foster judicial consumer protection. However, he concluded that ruling in favor of Mr. Schrems would re-write Regulation 44/2001 and create complexity which was better addressed by legislation, which was, in fact, already being processed at EU level.
Indeed, as we reported in this blog, the Commission is preparing a Report which will assess the status quo and potential legislative proposals in the field of collective actions with a view of putting forward new measures next March 2018. It will be interesting to see how this legislative proposal will be impacted by this opinion and the future CJEU judgment which is expected in the upcoming months.