Athanassios Takis: PhD, Special Adviser to General Secretariat of Greek government
The European Court of Human Rights (ECtHR) ruling of March 1, 2016, in the case of Arlewin v. Sweden examined how EU Regulation 44/2001, which decides which Member State’s courts hold jurisdiction over civil and commercial disputes, was used (or misused) by Swedish courts. This case highlighted the limitations of the ‘acte clair’ doctrine – the idea that national courts don’t always need to consult the Court of Justice of the European Union (CJEU) on EU law matters.
The Arlewin judgment
The Arlewin case, which gave the ECtHR the opportunity to rule on the use of EU law, revolved around the following: Raja Arlewin, a Swedish businessman, wanted to pursue private prosecution and sue for gross defamation against ‘X’. ‘X’ was a Swedish national who was both the CEO of a television company and the host of a popular show where Mr. Arlewin was publicly accused of being involved in organized crime related to the media and advertising industries. This program, produced in Sweden, broadcast in Swedish, and funded by Swedish sponsors, was sent via satellite to a London-based company called Viasat Broadcasting UK Ltd, which then transmitted it to viewers in Sweden.
Initially, the Stockholm District Court dismissed Mr. Arlewin’s claims, arguing that because the program didn’t originate in Sweden, they lacked jurisdiction. They based their decision on Swedish law, specifically the Constitutional law on freedom of expression and precedents set by the Swedish Supreme Court. The Court of Appeal upheld this decision. They argued that since Mr. Arlewin couldn’t prove that decisions regarding the program’s content were made in Sweden (a requirement for Swedish courts to have jurisdiction), the defamation case should be heard in the UK, where the broadcasting company was based.
Mr. Arlewin appealed. He claimed that the Swedish courts’ stance contradicted EU law, especially the Brussels I Regulation (44/2001) as interpreted by the CJEU. The Regulation emphasizes that jurisdiction in cases of alleged wrongdoing lies with the courts where the harm occurred. Mr. Arlewin argued that in his case, the harm to his reputation happened in Sweden. He asked the national court to request a preliminary ruling from the CJEU on how to interpret the Brussels I Regulation. The Swedish Supreme Court denied his request, seeing no need to consult the CJEU, and dismissed the case.
Dissatisfied, Mr. Arlewin took his case to the ECtHR, claiming Sweden had denied him effective access to court and failed to protect him from accusations that infringed on his right to privacy. The ECtHR’s March 1, 2016 judgment focused on whether Sweden violated Mr. Arlewin’s rights by dismissing his defamation case on grounds of admissibility. The court examined the relevance of two EU instruments to Mr. Arlewin’s situation: the EU Audiovisual Media Services Directive (2010/13) and the Brussels I Regulation.
The ECtHR disagreed with the Swedish government’s assertion that the Audiovisual Media Services Directive dictates jurisdiction in defamation cases. This directive, particularly Article 28 (which addresses damage to reputation caused by a program), focuses solely on the right of reply. It does not address defamation lawsuits or associated damages. Therefore, the ECtHR concluded that the Audiovisual Media Services Directive doesn’t regulate jurisdiction in defamation cases arising from international broadcasts.
Instead, the ECtHR found that jurisdiction under EU law fell solely under the Brussels I Regulation. Articles 2 and 5 of this regulation initially suggest both the UK and Sweden could have jurisdiction over Mr. Arlewin’s case. ‘X’ resides in Sweden, while Viasat Broadcasting UK Ltd is registered, and therefore domiciled, in the UK (Article 2 assigns jurisdiction to the defendant’s country of residence). Furthermore, Article 5 grants jurisdiction to the location where the harm occurred. This could apply to both countries, as the program was broadcast from the UK, while the alleged damage to Mr. Arlewin’s reputation happened in Sweden. It is important to note that the program was produced in Swedish, for a Swedish audience, with Swedish funding, and the alleged reputational damage occurred in Sweden. Aside from the technicality of the satellite transmission from the UK, all aspects of the case were inherently Swedish.
The ECtHR emphasized that the program’s content, production, broadcast, and consequences had stronger ties to Sweden than to the UK. Therefore, under Article 6 of the Convention, Sweden was obligated to provide Mr. Arlewin with effective access to court. The Swedish courts’ interpretation of both Swedish and EU law resulted in a situation where the alleged victim of defamation had no legal recourse in Sweden and was left with the option of pursuing legal action in the UK. However, forcing Mr. Arlewin to litigate in the UK wasn’t a practical or reasonable alternative. The logistical and financial hurdles of pursuing legal action abroad would render any potential remedy ineffective. By dismissing Mr. Arlewin’s case without considering its merits and suggesting he seek justice elsewhere, the Swedish courts undermined his fundamental right to access justice, thereby violating Article 6 of the ECHR.
Comment
This ECtHR judgment directly addressed the application of EU law by member states’ courts and indirectly touched upon their responsibility to seek preliminary rulings from the CJEU. Regarding the first point, the ECtHR clarified that the EU’s Audiovisual Media Services Directive doesn’t cover every issue of substance and jurisdiction arising from a program’s broadcast. It solely governs an individual’s right to respond to claims made about them, not their right to pursue legal action for defamation.
The court further examined the Brussels I Regulation’s provisions and their impact on the right to a fair trial. The judgment, emphasizing the importance of the Regulation’s systematic approach and the “strong connections” principle (Article 5, paragraph 3) as a basis for jurisdiction, affirmed that the Regulation generally upholds the right to a fair trial, striking a balance between different interests. By granting jurisdiction to the courts located where the harmful event occurred or may occur, the specific rules for tort cases represent a significant deviation from the primary rule of Article 2.
The reasoning behind this provision lies in the close relationship between liability, evidence, and the lawsuit’s location, along with the link between the damage caused and the event that led to it. Therefore, requiring the plaintiff to pursue legal action in a foreign jurisdiction would be overly burdensome and violate their right to accessible and effective justice. The Strasbourg court, relying on the Luxembourg Court’s findings, reaffirmed the direct dialogue between the two jurisdictions. By endorsing the Luxembourg court’s findings, the Strasbourg court demonstrated its commitment to interpreting the ECHR in a way that supports the proper application of EU law by national authorities.
While the court doesn’t explicitly address the obligation to request a preliminary ruling from the CJEU, it seems evident that had Swedish courts done so, the CJEU would have affirmed their jurisdiction in Mr. Arlewin’s defamation case based on Article 5, paragraph 3 of the Brussels I Regulation. This is evident from the cited CJEU judgments and paragraphs 36-39 of the ECtHR judgment, which concludes that “the Brussels I Regulation requires EU member states to make their courts available if jurisdiction is confirmed, as the ECJ noted in Kongress Agentur Hagen GmbH v. Zeehaghe BV that the Regulation does not govern matters of procedure.” This means a court can dismiss a case based on domestic procedural rules as long as those rules don’t hinder the effectiveness of the Brussels I Regulation.
However, the Swedish courts, interpreting the jurisdictional provisions as ‘acte clair,’ dismissed the applicant’s request and applied the Brussels I Regulation in a way inconsistent with EU law. According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), when a case before a Member State court, whose decisions are final, raises questions about the interpretation or validity of EU law, that court is obligated to refer the matter to the CJEU for a preliminary ruling. In the Cilfit and Others case, the CJEU established three limited exceptions to this rule. The third exception states that a national court of last resort is not required to seek a preliminary ruling from the CJEU if it believes there is no doubt about the meaning or validity of the law in question because it is clear and unambiguous (‘acte clair’) and therefore immediately understandable.
Even when lower courts interpret an EU law provision in a particular way, a court of last resort may believe its interpretation, though different, is so obvious that there’s no room for doubt about its meaning. However, the court clarified that such a possibility must be assessed considering EU law’s specific characteristics, its interpretational challenges, and the risk of inconsistent court decisions within the EU (see judgments in Intermodal Transports, paragraph 33, João Filipe Ferreira da Silva e Brito and Others, paragraph 39, and discussions here and here).
However, the court, in the latter judgment, determined that when numerous national courts are unsure about an EU law question, courts of last instance should consider themselves obligated to refer it to the CJEU. Continued uncertainty strongly suggests not only difficulties in interpretation but also a real risk of differing legal interpretations within the EU. If a national court’s failure to fulfill this obligation under Article 267 TFEU harms individuals (see Köbler), Member States should either overturn the court’s decision or, if that’s not possible due to the principle of res judicata, compensate the individual for the court’s violation of their EU law rights (João Filipe Ferreira, paragraph 60).
Two other significant ECtHR judgments, as well as a pending application (Repcevirág Szövetkezet v. Hungary, Application no. 70750/14 vii Application no. 17120/09), have addressed the relationship between denying a request for a preliminary ruling and violating the right to a fair trial. In Dhahbi v. Italy, the court found that refusing a request for a preliminary ruling without any justification violates Article 6 of the ECHR. In a more recent July 21, 2015, judgment, Schipani and others v. Italy (discussed here), the Italian Court of Cassation made no mention of whether the issue constituted an ‘acte clair’ and thus warranted an exemption from the rule requiring courts of last resort to seek preliminary rulings. According to the ECtHR, “it is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it was simply ignored.” Once again, the Strasbourg court determined that the applicants’ right to a fair trial had been violated.
Taking the ECtHR cases of Dhahbi, Schipani, and Arlewin, alongside the CJEU case of João Filipe Ferreira, it becomes clear that both the Luxembourg and Strasbourg Courts have narrowed the criteria for applying the ‘acte clair’ doctrine. National courts must clearly explain their reasons for not seeking a preliminary ruling, based on their unambiguous understanding of EU law. The judgments in Arlewin and João Filipe Ferreira highlight that if a breach of EU law occurs due to higher national courts misapplying Article 267 TFEU, the Member State may be held liable for both material (an EU law consequence consistent with Francovich and Köbler) and non-pecuniary damages (an ECtHR consequence consistent with Arlewin).
Barnard & Peers: chapter 9, chapter 10
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