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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Yasar v CCC Essen Digital GMBH & Anor; Talibov v CCC Essen Digital GMBH & Anor; Senen v CCC Barcelona Digital Services SLU & Anor (Approved) (Rev1) [2025] IEHC 248 (11 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC248.html Cite as: [2025] IEHC 248 |
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APPROVED
AN ARD-CHÚIRT
THE HIGH COURT
[2025] IEHC 248
Record No. 2022/650P
BETWEEN:
UGUR YASAR
PLAINTIFF
-AND-
CCC ESSEN DIGITAL GMBH AND FACEBOOK IRELAND LIMITED
DEFENDANTS
THE HIGH COURT
Record No. 2022/4639P
BETWEEN:
ABUZAR TALIBOV
PLAINTIFF
-AND-
CCC ESSEN DIGITAL GMBH AND META PLATFORMS IRELAND LIMITED
DEFENDANTS
THE HIGH COURT
Record No. 2022/170P
BETWEEN:
KYRA SENEN
PLAINTIFF
-AND-
CCC BARCELONA DIGITAL SERVICES S.L.U. AND FACEBOOK IRELAND LIMITED
DEFENDANTS
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 11th day of April 2025
CONTENTS
The proceedings in Essen, Germany
Section 2: Special Jurisdiction & Article 8 of Brussels I (recast)
Section 9: Articles 29 to 34 of Brussels I (recast)
Article 8(1) issue: Yasar, Talibov & Senen
Identification of applicable principles
The concepts of "closely connected" and "irreconcilable judgments"
Arguments made on behalf of Mr. Yasar
Question of unique and comprehensive degree of control & risk of irreconcilable judgments
Proceedings in Ireland not reasonably foreseeable
Different legal bases & foreseeability
THE ADDITIONAL ISSUE IN MS. SENEN'S CASE
Exclusive jurisdiction clauses & the lis penden rule
The lis pendens or first-in-time rule
Exception to the lis pendens rule
THE ADDITIONAL ISSUE IN MR. TALIBOV'S CASE
1. In each of these three cases, the first named Defendants ("CCC Essen" and "CCC Barcelona") [1] seek orders pursuant to Order 12, rule 26 of the Rules of the Superior Courts 1986 (as amended) ("the RSC 1986"), setting aside notices of proceedings, i.e., personal injuries summonses brought by the plaintiffs, Messrs. Yasar and Talibov and Ms. Senen, [2] on the grounds that the High Court does not have jurisdiction to hear and determine the plaintiffs' claims against them under the terms of Article 8(1) of Regulation (EU) No. 1215/2012 ("Brussels I (recast)").
2. This is a composite judgment in the three sets of proceedings.
Background
3. The CCC entities were contractually engaged by the second named Defendant in all three sets of proceedings ("Facebook/Meta") for the purpose of recruiting and hiring personnel to work as content moderators of material on its platform, which provided web community online services.
4. Facebook/Meta is an Irish company; it has not disputed jurisdiction and has not participated in these motions.
5. Accordingly, persons employed by the CCC entities (such as the three plaintiffs) carried out content moderation services under contracts of employment with CCC Essen and CCC Barcelona and they had no express contract with Facebook/Meta.
6. The plaintiffs have sued their respective employers, CCC Essen and CCC Barcelona and have also sued Facebook/Meta and, as stated above, have sought damages in the form of a 'Notice of Personal Injury Summons'.
7. In summary, the plaintiffs allege that in the course of their work as content moderators, they were exposed to excessively graphic and disturbing content on the Facebook/Meta platform, that inadequate support was provided to them for persons involved in work of that nature, and that they were subject to excessive pressure and levels of work.
8. The plaintiffs have issued their personal injury summons in Ireland, relying on Article 8(1) of Brussels I (recast).
9. In the three applications before me, the respective CCC entities have challenged the plaintiffs' jurisdiction to do so and contend that the proceedings should be heard in Germany and Spain.
10. The applications are representative of a wider number of cases which await their disposition. In this regard, the broader context of these proceedings involves approximately 30 cases which have issued against Facebook/Meta and against various other companies (some of which are Irish) who were engaged by Facebook/Meta to assist in its content moderation services. Of the 30 cases, about one third involve a co‑defendant outside of Ireland, and approximately 20 cases involve a co‑defendant in Ireland.
11. To summarise, it is common case that the plaintiffs had employment contracts as content moderators only with the first named defendants - the CCC entities: Mr. Yasar and Mr. Talibov were employed by CCC Essen (a German company); Ms. Senen was employed by CCC Barcelona (a Spanish company). It is also common case that the second named defendant, Facebook/Meta is domiciled in Ireland. The CCC entities dispute jurisdiction; Facebook/Meta has not disputed jurisdiction.
12. Whilst there are issues common to all three cases, there are also important differences. As these differences and similarities are explored in greater detail in this judgment, for indicative purposes only at this juncture, I briefly paraphrase (and adapt) the summary referred to in the exchange of correspondence between the parties' solicitors on 26th February 2024[3] which highlighted the differences in the plaintiffs' cases. The Article 8(1) Brussels I (recast) jurisdictional issue is common to all three cases.
13. In relation to Mr. Yasar, the letter of 26th February 2024 stated that in this case "personal injuries proceedings issued in Ireland against CCC Essen and Meta before the declaratory proceedings were issued in the Essen Labour Court. In [this case], the Essen Labour Court is awaiting a determination on the issue of the jurisdiction of the Irish Courts and [it raises] issues regarding Article 8 of Brussels I Regulation (Recast), which is potentially relevant to the Proceedings".
14. In relation to Mr. Talibov, the letter of 26th February 2024 stated that in "these proceedings, declaratory proceedings were issued in Germany against the Plaintiff before personal injuries proceedings were issued in the Irish High Court. The question as to whether the Irish [High] Court is seised in the proceedings by virtue of the PIAB application arises in [this case] but not the case listed above", i.e., it does not arise in the Yasar case.
15. In relation to Ms. Senen, the letter of 26th February 2024 stated that "[t]hese proceedings concern the question as to whether the Spanish Courts have jurisdiction and therefore it raises separate issues. The Spanish Contracts of Employment include exclusive jurisdiction clauses, which raises a separate issue to be determined under Article 25 of Brussels I Regulation (Recast)".
16. As the central focus in these applications, which are common to Messrs. Yasar and Talibov and Ms. Senen, concern the application of Article 8(1) of Brussels I (recast), in this judgment I adopt the approach of the parties at the hearing before me which was to deal with this common issue through the prism of Mr. Yasar's case, but my reasoning on the Article 8(1) issue applies to all three cases.
17. As mentioned, all the three cases, for example, raise the question as to the applicability of Article 8 of Brussels I (recast), but it is the only issue in Mr. Yasar's case. There is no exclusive jurisdiction clause, for example, in Mr. Yasar's case.
18. Additional issues arise in the cases of Mr. Talibov and Ms. Senen.
19. In Mr. Talibov's case, for example, the Essen Labour Court (in Germany) has stayed its proceedings under Article 29 of Brussels I (recast) to allow this jurisdiction application before the Irish High Court to be determined. Whilst these matters (and concepts) are discussed in detail later in this judgment, the Essen Labour Court held that the Irish court was first seised of the claim because, in its view, the PIAB application (the personal injury summons) had been made prior to the issuing of the proceedings brought by CCC Essen against Mr. Talibov in Germany, and that led the German court to take the view that Article 29 of Brussels I (recast) applies. On 14th February 2023, the Essen Labour Court acceded to Mr. Talibov's application and held that the proceedings "before the PIAB" were "already pending proceedings" within the meaning of Article 29(1) and suspended or stayed the "German proceedings" until the Irish High Court determines the question of jurisdiction. Accordingly, whilst not in any way 'gainsaying' or 'reviewing' the rationale or reasoning of the Essen Labour Court, one of the issues which I must now determine, arising from the challenge to jurisdiction raised pursuant to the provisions of Brussels I (recast), is whether the making of the application to PIAB does or does not constitute the Irish High Court being "seised" of the proceedings "first in time."
20. Turning briefly to Ms. Senen's case, the issue is different. In Senen, it is argued by CCC Barcelona that there is an exclusive jurisdiction clause in the contract between Ms. Senen and CCC Barcelona (which does not apply in the Yasar or Talibov cases). It is submitted on behalf of CCC Barcelona that the exclusive jurisdiction clause means that the Spanish courts have exclusive jurisdiction. It submits, therefore, that the Irish High Court must decline jurisdiction pursuant to Article 25 of Brussels I (recast).
21. On behalf of the CCC entities, it is submitted that there are no factual issues which are required to be resolved and, even if the plaintiffs submit that such contested factual issues do arise, Article 8(1) does not apply. On that basis, no factual matters are required to be resolved.
22. Mr. Yasar had a contract of employment with CCC Essen from 9th April 2018 to in or around April 2020 as a content moderator.
23. In summary, Mr. Yasar alleges that he was exposed to excessively difficult and graphic material with inadequate support for someone engaged in such work and that he was subject to excessive pressure and excessive amounts of work. [4]
24. Mr. Yasar was employed exclusively by CCC Essen and carried out his work as a content moderator between 2018 and 2020 in Essen, Germany, under his contract of employment with CCC Essen. Mr. Yasar does not have a contractual relationship with Facebook/Meta. Paragraph 23(6) of the contract of employment between CCC Essen and Mr. Yasar states that "[t]he employment relationship is subject exclusively to the law of Germany". The position, therefore, is that Mr. Yasar's substantive case will be tried according to German law, wherever that trial takes place.
25. Again, whilst reference is made now to the proceedings involving the Essen Labour Court and Mr. Yasar, for the reasons just set out, no issue arises in Mr. Yasar's case as to whether the Irish High Court is 'seised' in the proceedings by virtue of the PIAB application; that matter only arises in Mr. Talibov's case.
26. On 20th July 2022, CCC Essen instituted proceedings in Germany against Mr. Yasar before the Essen Labour Court seeking declaratory judgment by way of a negative declaratory action that CCC Essen was not obliged to pay damages to Mr. Yasar.
27. The Essen Labour Court gave judgment in or around November 2022. This judgment was translated by TransPerfect, whose certification is dated 29th September 2023. The judgment held that the proceedings taken in the Essen Labour Court by CCC Essen against Mr. Yasar would be suspended until the jurisdiction of the Irish High Court in Dublin had been determined.
28. In referring to the following extract of part of the judgment of the Essen Labour Court, it will be recalled that these were proceedings brought by CCC Essen (referred to in the judgment as "the Claimant") against Mr. Yasar ("the respondent"). The judgment of the Essen Labour Court set out its reasons for this decision and, insofar as this application is concerned, these were set out in section II of the decision (commencing at p. 3) as follows:
"The proceedings must be suspended in accordance with Art. 29, para. 1 Regulation 1215/2012 (hereinafter: Brussels Ia Regulation).
1. According to Art. 29 para. 1 Brussels Ia Regulation, in the case of actions for the same claim before courts of different Member States, the court subsequently seised suspends its proceedings until the jurisdiction of the court first seised is established. These requirements are met here because the Irish High Court was called before the Labour Court in Essen. The court assumes this in any case, taking into account and evaluating the reciprocal submission.
The application of Art. 29 must take place ex officio as soon as a court becomes aware of another procedure before the court of another Member State (MüKo-ZPO-Gottwald, 6th Edition 2022, Art. 29 Brussels Ia Regulation, margin no. 19).
2. From the point of view of the Labour Court, when applying the Brussels Ia Regulation, there is nothing in favour of the jurisdiction of the Irish Court to decide on the legal dispute there between the parties, including this legal dispute.
The Irish Court may have jurisdiction for the action against the other Respondent Meta there. However, this was obviously not the employer of the Respondent. On the other hand, the Respondent's employer was a claimant here, so that the jurisdiction pursuant to Art. 20 para. 1 in conjunction with Art. 21 para. 1 Brussels Ia Regulation. According to this, (para. 1 a), the court of the Member State in which the Employer has its registered office has jurisdiction. This is in Essen, so that the German Court would have jurisdiction. The possibilities under para. 1 b) to sue in another Member State do not exist because the Respondent has not (most recently) usually done his work in Ireland, nor has the Claimant had or has a branch in Ireland. In any case, nothing has been submitted so far. There is also no case of exclusive jurisdiction pursuant to Art. 24 Brussels Ia Regulation and it is not apparent that the parties had reached a jurisdiction agreement (Art. 25 Brussels Ia Regulation) or that the claimant had entered into Ireland without objection as a Respondent (Article 26 Brussels Ia Regulation). Irrespective of whether a jurisdiction of the Irish Court can be established via a connection between the claims against Meta and those against the present Claimant according to Art. 8 No. 1 Brussels Ia Regulation, such a jurisdiction does not exist either. This is because the Respondent in this case objects to Meta on the grounds that the latter has breached its supervisory obligations towards a service provider. He appeals against the applicant on the grounds that he has violated protective obligations arising from an employment relationship. The actual and legal questions are not related to each other. It therefore does not seem necessary to negotiate both claims together so that no contradictory decisions are made. Rather, it seems readily possible that Meta is liable towards the Respondent, but not the Claimant, or even precisely vice versa.
However, the Labour Court does not have to conclusively assess the jurisdiction of the other court. This follows from Article 29 Brussels Ia Regulation (cf. MüKo-ZPO-Gottwald loc. cit., margin no. 19 with further references). Therefore, the Labour Court must wait until the Irish High Court has determined its jurisdiction.
3. The requirements of Art. 29 Brussels Regulations are also present here:
(a) Both actions have been filed between the same parties. This is undisputed between the parties; the Claimant is also sued in Ireland in addition to Meta.
(b) Both actions are pending due to the same claim.
Both proceedings deal with the same subject matter of dispute, insofar as the present Claimant is affected. In the Irish proceedings, the local Respondent, as Claimant, claims compensation for non-material damages from the local Claimant as Respondent due to his activity as a Content Moderator.
Even without an official translation of the English-language statement of claim, it is evident that the local Respondent, as the Claimant raises claims there for non-material damages against the local Claimant, which are to follow from the fact that he became ill as a result of his work for the Claimant".
29. The Essen Labour Court has stayed the proceedings before it pursuant to Article 29 of Brussels I (recast) pending the determination by me of this application on the question of jurisdiction and Article 8(1) of Brussels I (recast).
30. The fundamental or general rule on jurisdiction ("the default domiciliary rule") under Article 4(1) Brussels I (recast) is that persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
31. The default domiciliary rule, and the exceptions to it, find expression in Recitals (15) and (16) of Brussels I (recast), as follows:
"(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.
(16) In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation."
32. Article 5 of Brussels I (recast) provides that persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in section 2 (special jurisdiction) at Articles 7 to 9; section 3 (jurisdiction in matters relating to insurance) at Articles 10 to 16; section 4 (jurisdiction over consumer contracts) at Articles 17 to 19; section 5 (jurisdiction over individual contracts of employment) at Articles 20 to 23; section 6 (exclusive jurisdiction) at Article 24; and section 7 (prorogation of jurisdiction) at Articles 25 and 26 of Chapter II.
33. Article 7 of Brussels I (recast) is not sought to be invoked in the Yasar, Talibov or Senen applications. Article 7 is a 'special jurisdiction' provision, i.e., an exception to the Article 4 general default domiciliary rule of jurisdiction. It provides, for example, that a person domiciled in a Member State may be sued in another (different) Member State, in matters relating to a contract, in the courts for the place of performance of the obligation in question [5]; and, that a person domiciled in a Member State may be sued in another (different) Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. [6]
34. The main difference between the special rules in Article 7 and Article 8 of Brussels I (recast) is that cases come within Article 7 directly because of the nature of the cause of action and/or the manner in which it arises, whereas cases come within Article 8 because of their connection to other defendants or other proceedings: as per the High Court (Butler J.) in Crotty v SAS AB [2021] IEHC 394 at paragraph 16.
35. In Crotty v SAS AB [2021] IEHC 394, the High Court (Butler J.), at paragraph 20, also observed that the Court of Justice regards the special rules as exhaustively listing the exceptions to the general principle contained in Article 4(1), referring to Réunion Europénne v Spliethoff's Bevrachtingskantoor BV, Case C-51/97, ECLI:EU:C:1998:509, at paragraph 16 and added that "this means, as the CJEU puts it, that the special jurisdictional rules cannot give rise to an interpretation going beyond the cases envisaged by the Recast Regulation itself. This is consistent with the requirement to give a restrictive interpretation to those rules."
36. One of the distinguishing features arising in Crotty v SAS AB [2021] IEHC 394 (where the plaintiff suffered an accident slipping on ice when disembarking a flight in Sweden) from the claims brought by Messrs. Yasar and Talibov and Ms. Senen, is that the plaintiff in Crotty had not endorsed Article 8 on her summons and sought to amend it.
37. In Crotty, the first named defendant - SAS AB (the airline) - accepted the jurisdiction of the Irish High Court to hear the claim against it. The second named defendant - Swedavia AB (the airport authority) - however, opposed jurisdiction and sought to strike out the proceedings against it, arguing that the Montreal Convention did not apply to an airport authority but was applicable to an airline, and that as the Article 4 general domiciliary rule applied, it had not been properly served and, therefore, the proceedings should have been brought in Sweden and not Ireland.
38. The High Court (Butler J.) held that the airport authority (Swedavia AB), as a company domiciled in Sweden, had an expectation under Article 4 of Brussels I (recast) that any proceedings against it would be brought in Sweden and noted that, if applicable - insofar as any alleged claim in contract or tort was concerned - Sweden was the place where: (i) any relevant contractual obligations were performed; and (ii) the harmful (tortious) event occurred.
39. Article 8(1) of Brussels I (recast) provides that a person domiciled in a Member State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
40. In Crotty, as neither defendant was domiciled in Ireland, Article 8(1) could not be relied upon. This meant that the plaintiff could not rely on that provision notwithstanding its general objective of avoiding irreconcilable judgments which could arise if the plaintiff had to bring separate proceedings against the airport authority in Sweden. Butler J. said that this general objective was not an absolute requirement and that Article 30 of Brussels I (recast) envisaged that related actions could be pending before the courts of different Member States. In such a case, Article 30 allowed a court to stay its proceedings or decline jurisdiction in favour of a court first seised, but there was no mandatory requirement to do so.
41. As mentioned, Article 8(1) of Brussels I (recast) is common to the Yasar, Talibov and Senen applications. [7] Put briefly, the CCC entities in all three cases argue that the Irish High Court does not have jurisdiction to hear the respective claims against them, i.e., CCC Essen (in Yasar and Talibov) and CCC Barcelona (in Senen) pursuant to the provisions of Article 8(1) of Brussels I (recast). To recap, pursuant to Article 8(1), a person domiciled in a Member State may also be sued where there are multiple defendants, in the courts where any of the defendants are domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments from separate proceedings.
42. In each of these cases, the plaintiffs took the view that as Facebook/Meta are domiciled in Ireland, they were entitled to sue both defendants - the CCC entities and Facebook/Meta in Ireland.
43. In summary, insofar as Article 8(1) is concerned, the plaintiffs inter alia claim that by reason of the alleged unique and comprehensive degree of control which Facebook/Meta exercised over the system of work implemented by the CCC entities, Facebook/Meta had a tortious liability to each of the plaintiffs where they claim alleged negligence in respect of the injuries suffered in the course of their work as content moderators on the Facebook/Meta platform.
44. Thus, in Mr. Yasar's case, by way of example, at page 12 of the personal injury summons, the jurisdiction of Article 8(1) of Brussels I (recast) is endorsed in the following terms on the summons: "[t]he court has the power under Regulation No. 1215/2012 to hear and determine the claim herein and should assume jurisdiction under Article 8(1) thereof. No proceedings between the parties concerning the same causes of action are pending between the parties in another Member State of the European Union or in a contracting state of the Lugano Convention".
45. The CCC entities take a different view.
46. In summary, the CCC entities have brought three applications seeking to set aside notice of each of the personal injuries summonses brought by the plaintiffs, Messrs. Yasar and Talibov and Ms. Senen against CCC Essen and CCC Barcelona, on inter alia the basis that the aforementioned exception to jurisdiction in, inter alia, Article 8(1) of Brussels I (recast) does not apply and, therefore, the Irish High Court does not have jurisdiction to hear and determine the plaintiffs' claims against the CCC entities.
47. The central article relied upon in these proceedings is Article 8, and more specifically, Article 8(1) of Brussels I (recast).
48. Article 8 provides as follows:
"A person domiciled in a Member State may also be sued: -
(1) Where he is one of a number of defendants, in the courts for the place where any one of them domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
(2) As a third party in an action or warranty or guarantee or in any other third-party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in this case.
(3) On a counterclaim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending.
(4) In matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem, in a movable property, in the court of the Member State in which the property is situated."
49. Article 8(1) of Brussels I (recast) therefore provides that a person domiciled in a Member State may also be sued "where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings".
50. In terms of applicable principles, the issue which arises in the Article 8(1) context in these three applications concerns the question of whether the claims against each of the defendants are "so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings", rather than the other issue which can often arise in an Article 8(1) context concerning the nature and strength of each case against "the anchor defendant" (in this case, Facebook/Meta which is domiciled in Ireland).
51. As referred to earlier in this judgment, Recital 16 of Brussels I (recast) provides that:
"In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation."
52. Recital 21 of Brussels I (recast) provides that:
"In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously."
53. In giving effect to these and other recitals, Article 8(1) of Brussels I (recast) seeks, therefore, to ensure the sound administration of justice, to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States.
54. By way of brief overview, on 10th January 2015, Brussels I (recast) repealed and replaced Regulation No 44/2001 ("Brussels I") on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As the Annex III (Correlation Table) confirms, the previous provision in Article 6(1) of Brussels I is now replaced by Article 8(1) of Brussels I (recast).
55. Brussels I (recast), and its predecessor instruments, have their provenance in Article 220 of the 1957 Treaty of Rome when the (then) six Member States of the European Economic Community promised to "enter into negotiations with each other with a view to securing for the benefit of their nationals ... the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards."
56. This led to the establishment of 'the Brussels Convention' on jurisdiction and enforcement of judgments in civil and commercial matters in September 1968, which prescribed detailed rules providing for the circumstances in which the courts of Member States might exercise jurisdiction, and rules addressing specific civil and commercial legal areas including contract, tort and maintenance. The aim of the Brussels Convention was to facilitate civil justice cooperation and to avoid parallel legal proceedings involving the same litigants and the same facts brought in different Member States.
57. Brussels I (recast) regulates jurisdiction in civil and commercial matters, principally where the defendant is domiciled in an EU member state: Article 4 of Brussels I (recast) inter alia provides that persons must be sued in the courts of the Member State in which they are domiciled.
58. As mentioned, this primary domiciliary rule is, however, subject to other factors referred to as rules of "special jurisdiction" which are set out in Section 2 (Special Jurisdiction), Articles 7 to 9, across a broad range of civil law disputes allowing, in certain circumstances, individual defendants to be sued in certain other EU Member States, to which the dispute has a link. Article 7, for example, is a 'special jurisdiction' provision, i.e., an exception to the Article 4 general default domiciliary rule of jurisdiction. Thus, a person domiciled in a Member State may be sued in another Member State, in matters relating to a contract, in the courts for the place of performance of the obligation in question and in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. These provisions are not relied upon in the applications before me.
Section 5: Articles 20 to 23 of Brussels I (recast)
59. Section 5, Articles 20 to 23 of Brussels I (recast) deal with "Jurisdiction over individual contracts of employment".
60. Article 20 provides that in matters relating to individual contracts of employment, jurisdiction shall be determined by section 5 (i.e., Articles 20 to 23 of Brussels I (recast)) without prejudice to Article 6, Article 7(5) and, in the case of proceedings brought against an employer, Article 8(1).
61. In terms, Article 20(1) and (2) of Brussels I (recast) provides as follows:
"In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8.
Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State."
62. When annotated, Article 23 states that the "provisions of [Section 5: Jurisdiction over individual contracts of employment] may be departed from only by an agreement: (1) which is entered into after the dispute has arisen; or (2) which allows the employee to bring proceedings in courts other than those indicated in [Section 5]."
63. Article 21 of Brussels I (recast) provides for the general rule or source of jurisdiction over individual contracts of employment and provides special rules facilitating employees bringing actions in the place where they habitually carry out their work which in the Yasar and Talibov cases is Germany and in the Senen case is Spain.
64. The Yasar, Talibov and Senen cases do not come within either Article 21(1)(a) (because the CCC entities in these cases are not domiciled in Ireland) or Article 21(1)(b) (as this gives jurisdiction to the courts of the place where an employee carries out his work).
Section 6: Article 24 of Brussels I (recast)
65. Section 6, at Article 24 provides for "exclusive jurisdiction" in several prescribed situations where the "courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties" in relation to, for example, immovable property, a company's constitution/corporate governance and validity of actions, public registry entries, IP rights, in addition to proceedings involving the enforcement of judgments.
Section 7: Articles 25 and 26 of Brussels I (recast)
66. Section 7, Articles 25 and 26 of Brussels I (recast) provides for prorogation of jurisdiction. As addressed later in this judgment, it is submitted on behalf of the CCC entities that the exclusive jurisdiction clause in the Senen case meets the requirements of Article 25.
67. Article 25(1) provides that:
"If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned." [8]
68. Article 25(2) provides that "[a]ny communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing'".
69. Article 25(3) and (4) provides as follows:
"(3) The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between those persons or their rights or obligations under the trust are involved.
(4) Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24."
70. Article 25 is an example of how parties can derogate from the domiciliary principle in Article 4.
71. Accordingly, the domiciliary principle, while paramount, is also conditional: a person domiciled in a Member State of the EU must still be sued in that State unless the case falls within one of the exceptions in Brussels I (recast). For example, Article 25(1) refers to the phrase "regardless of their domicile".
72. Again, in terms of exceptions, Article 25 of Brussels I (recast), therefore, now gives priority and jurisdiction to continue with a hearing to the court nominated in an exclusive jurisdiction clause notwithstanding that a court in another Member State of the EU may have been "first seised of the claim". Put simply, if parties to a contract give exclusive jurisdiction to courts within Member States of the EU, those courts within those Member States should hear and determine any dispute.
73. Article 25(1) provides that jurisdiction clauses are exclusive unless the parties have agreed otherwise.
74. The assessment of a contractual exclusive jurisdiction clause involves consideration of both EU law and domestic law, i.e., it must be both compliant with the requirements of Brussels I (recast) and, as per Article 25(1) above, it must not be "null and void as to its substantive validity under the law of that Member State." This essentially gives effect to Recital 20 of Brussels I (recast), which provides that "[w]here a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State."
75. Article 25(4) provides that "[a]greements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24."
Section 8: Articles 27 & 28 of Brussels I (recast)
76. Articles 27 provides that in circumstances where a Member State court is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 24, it is required to declare of its own motion that it has no jurisdiction.
77. Article 28 provides as follows:
"1. Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.
2. The Court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.
3. Article 19 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) ... shall apply instead of paragraph 2 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation.
4. Where Regulation (EC) No 1393/2007 is not applicable, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention."
78. Section 9: Articles 29 to 34 of Brussels I (recast) provides for "lis pendens– related actions".
79. As these provisions are addressed in some detail later in this judgment, a brief overview is set out at this juncture.
80. Article 29(1) of Brussels I (recast), for example, provides that "[w]ithout prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established."
81. The Yasar case, from the perspective of the Essen Labour Court, represented the implementation of Article 29(1): that court took the view, for example, that as the Irish court was first seised, the Essen Court stayed the proceedings taken by CCC Essen against Mr. Yasar before it, in order to allow this jurisdiction application to be determined.
82. The provisions of Article 29(1) facilitate a court, 'other than the court first seised', to temporarily halt matters so that the court first seised can decide whether it has jurisdiction. In the case of Mr. Yasar, for example, if I was to find for CCC Essen, the Essen Court proceedings would be reactivated in Germany.
83. Whilst Article 29 refers to proceedings involving 'the same cause of action' and 'between the same parties' being brought in the courts of 'different Member States', Article 30 of Brussels I (recast) refers to 'related actions pending' in the courts of different Member States then any court other than the court first seised may stay its proceedings, i.e., it is discretionary.
84. Article 30(3) provides the test for deciding whether actions are related and uses similar language to that used in Article 8(1), albeit for a different purpose: [f]or the purposes of this Article [Article 30], actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings." [9]
85. Article 8(1) provides that "[a] person domiciled in a Member State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
86. Similar language is used also in the provisions under Chapter III, Recognition and Enforcement, and in particular, section 3 of Chapter III which addresses "Refusal of recognition and enforcement" where Article 45 (1) to (4) is sub-headed "Subsection 1: Refusal of recognition" and addresses the circumstances where judgment has been obtained in one Member State and it is sought to enforce it or have it recognised in another Member State. Article 45(1)(c), for example, provides that "[o]n the application of any interested party, the recognition of a judgment shall be refused...(c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed."
87. In assessing the issue of Article 8(1) Brussels I (recast) and the challenge brought by the CCC entities in respect of jurisdiction, there are important parameters to the exercise of my jurisdiction which, inter alia, include the following considerations:
(i) notwithstanding that the applications to set aside the personal injuries summonses are brought by the CCC entities, the plaintiffs bear the burden or onus of demonstrating that they have satisfied the requirements of Article 8(1) in order to be entitled to sue in Ireland: see, by analogy, the observations of Barniville J. (as he then was) in Trafalgar Developments Ltd & Ors v Mazepin & Ors [2022] IEHC 167 at paragraph (354). The onus remains on Messrs. Yasar, Talibov and Ms. Senen to establish the exceptions in the special rules or the derogations claimed in their respective cases: see Crotty v SAS AB [2021] IEHC 394 per Butler J. at paragraphs 20 and 21 referring to Hunter v Gerald Duckworth & Co. [2000] 1 IR 510 and Ewins v Carlton [1997] 2 ILRM 223). This is because of the fundamental domiciliary principle in Article 4(1) of Brussels I (recast) giving effect to Recital (15) which, again, provides that "[t]he rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction";
(ii) whether the applicable standard is that the plaintiffs must establish that their claims against the CCC entities and Facebook/Meta are so closely connected that it is necessary to avoid the risk of irreconcilable judgments for the purposes of Article 8(1) Brussels I (recast) on the balance of probabilities, unequivocally [10] or on a prima facie basis, [11] exceptions to the default domiciliary rule must be carefully considered and construed restrictively . In this regard, applications challenging jurisdiction which have been brought by the CCC entities in the context of the proceedings issued by Messrs. Yasar and Talibov and Ms. Senen should not be turned into a mini-trial as the appropriate place to decide the facts is generally at the trial of the action: see Trafalgar Developments Ltd & Ors v Mazepin & Ors [2022] IEHC 167 per Barniville J. (as he then was) at paragraph (373) adopting the approach of the CJEU in C-375/13, Kolassa v Barclays Bank Plc (28th January 2015) ECLI:EU:C:2015:3;
(iii) it is, therefore, not necessary for me, at the stage of determining jurisdiction, to embark upon a full or comprehensive taking of the evidence or substantive claims of the respective parties. As the court deciding this Article 8(1) jurisdiction issue and whilst conscious of the objective of legal certainty, and having regard to the information referred to by the parties in determining this discrete matter of jurisdiction, I express no view on the merits of the substantive claims and related evidence of the respective parties: Kolassa, C‑375/13, EU:C:2015:37, at paragraphs 61 to 64.
(iv) further, whilst the special rules carve out an exception to the fundamental domiciliary principle and provide an independent basis for conferring jurisdiction on the courts of a Member State, they remain exceptions and derogations from the fundamental principle in Article 4(1) of Brussels I (recast) and must therefore be strictly construed: see Leo Laboratories v Crompton [2005] IESC 31; [2005] 2 IR 225 applying Case C-168/02 Kronhofer v Maier) per Fennelly J. at p. 239 of the official report and referred to by the Court of Appeal (Kelly J. (as he then was), and Peart and Hogan JJ.) in Bushell Interiors Ltd v Leicht Kuchen AG [2015] IECA 211 per Hogan J. at paragraph 22; and, see also the observations of the High Court that the special rules should be given a restrictive interpretation in Crotty v SAS AB [2021] IEHC 394 per Butler J. at paragraph 20 also referring to Fennelly J. in Leo Laboratories v Crompton [2005] IESC 31, [2005] 2 I.R. 225 applying Kronhofer v Maier, Case C-168/02, ECLI:EU:C:2004:364).
(v) the relevant legal principles and historical amendments which culminated in what is now Article 8(1) of Brussels I (recast) were outlined by Barniville J. (as he then was) in Trafalgar Developments Ltd & Ors v Mazepin & Ors [2022] IEHC 167 beginning at paragraph (339) and at paragraph (343), where the court observed as follows:
"The CJEU has repeatedly held that exceptions to the general rule on jurisdiction contained in what is now Art. 4 of the Recast Brussels Regulation (previously Art. 2 of the Brussels Convention and Art. 2 of the Brussels Regulation) must be construed restrictively. The CJEU made that clear in Reisch Montage (at para. 23) and in Freeport (at para. 35). Both of those cases concerned Art. 6(1) of the Brussels Regulation. In Freeport, the CJEU stated at para. 35: -
"Moreover, it is settled case law that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by Regulation No. 44/2001 (Reisch Montage, para. 23, and the case law cited) ...."".
88. Generally, therefore, jurisdiction is determined based on a defendant's domicile and any exceptions must be narrowly or restrictively construed. Article 4(1) of Brussels I (recast) provides that "[s]ubject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."
89. This gives effect to the respective principles of predictability in Recital (15) and of legal certainty in Recital (16) of Brussels I (recast), and as referred to later in this judgment, the latter principle is a factor to be considered (though, in and of itself, it is not dispositive) when there are different legal bases to the claims against two defendants and the principle of 'reasonable foreseeability' is being applied.
90. In this context (and as I have referred to earlier), Recital (15) of Brussels I (recast), for example, provides that: "[t]he rules of jurisdiction should be highly predictable and founded on the principle of that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties was a different connecting factor. The domicile of a legal person must be defined autonomously to make the common rules more transparent and avoid conflicts of jurisdiction." [12]
91. Again, in this context (and as referred to earlier), Recital (16) of Brussels I (recast) provides that: "[i]n addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation." [13]
92. The authorities establish that in interpreting the scheme of Article 8 of Brussels (Recast) any exception to the general rule that a person is entitled to be sued in the jurisdiction in which they are domiciled, is to be strictly construed.
93. As the central issues in these applications, which are common to Messrs. Yasar and Talibov and Ms. Senen, concern the application of Article 8(1) of Brussels I (recast), it is appropriate that I address this matter first. As referred to earlier, in so doing, I adopt the approach of the parties at the hearing before me which was to deal with this common issue through the prism of Mr. Yasar's case. This decision and reasoning on the Article 8(1) issue applies to all three cases.
94. At paragraph 30 of his judgment in Micks-Wallace v Dunne & Garcia [2023] IEHC 169, Heslin J. identified the following principles by reference to the decision of the Court of Justice in Case C-103/05, Reisch Montage AG v Kiesel Baumaschinen Handels GmbH [2013] ECRI-06827:
"Exceptions to Art. 4 -exhaustively listed
"... that the courts of the member state in which the defendant is domiciled are to have jurisdiction, constitutes the general principle and it is only by way of derogation from that principle that that regulation provides for special rules of jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another member state..."(emphasis added) (para 22);
Exceptions to be strictly interpreted
"it is settled case-law that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged..." (emphasis added) (para 23);
Legal certainty
"It is for the national courts to interpret those rules having regard for the principle of legal certainty, which is one of the objectives of Regulation No..." (emphasis added) (para. 24);
Foreseeability
"That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued..." (emphasis added) (para. 25);
"As regards the special jurisdiction provided for in Article 6(1)... a defender may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided 'the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings'." (para. 26);
No admissibility requirement
"In that regard, it must be found, first, that that provision does not include any express reference to the application of domestic rules or any requirement that an action brought against a number of defendants should be admissible, by the time it is brought, in relation to each of those defendants under national law" (emphasis added) (para. 27);
National rules do not affect applicability
"Second, independently of that first finding, the question referred seeks to determine whether a national rule introducing an objection of lack of jurisdiction may stand in the way of the application of Article 6(1)..."(emphasis added) (para. 28)
Interpreted independently
"It is settled case law that the provisions of the regulation must be interpreted independently, by reference to its scheme and purpose..." (emphasis added) (para.29);
"Consequently, since it is not one of the provisions... which provide expressly for the application of domestic rules... Article 6(1) of the Regulation cannot be interpreted in such a way as to make its application dependent on the effects of domestic rules" (emphasis added) (para. 30).
Ratio of Reisch Montage
"In those circumstances, Article 6(1)... may be relied on in the context of an action brought in a member state against a defendant domiciled in that state and a co-defendant domiciled in another member state even when that action is regarded under a national provision as inadmissible from the time it is brought in relation to the first defendant" (emphasis added) (para. 31)".
95. At paragraph 43 of his judgment in Micks-Wallace v Dunne & Garcia [2023] IEHC 169, Heslin J. referred to the decision of the Court of Justice in Case C-366/13, Profit Investment SIM SpA v Stefano Occi & Ors, EU:C:2016:282, which emphasised that it was insufficient in order to invoke Article 8(1) simply to demonstrate that the outcome of one action could affect another:
"The Court went on, at para 67, to state inter-alia that Article 6(1) (now Article 8(1))"... must be interpreted as meaning that where two actions-which have different subject matters and bases and which are not connected by a link of subordination or incompatibility –are brought against several defendants, the fact that the upholding of one of those actions is potentially capable of affecting the extent of the right whose protection is sought by the other action does not suffice to give rise to a risk of irreconcilable judgments within the meaning of that provision"(emphasis added).The 23 April 2015 Opinion of Advocate General Bot(to which the Court referred at para. 66 of Profit Investment) included inter alia:
"96. I consider, next, that it is not sufficient, in order for two claims directed against a number of defendants to be regarded as connected, that the decision given on one be capable of affecting the decision to be given on the other. The requirement that a divergence must arise in the context of the same situation of law and fact makes it necessary to ascertain whether the decisions that might be given by two different courts have the potential to be inconsistent and contradictory, even if it is not necessary to establish that they will have radically irreconcilable legal consequences...
...100. The mere fact that the restitution of the price paid that would be effected if the action for nullity were upheld might have an impact on the extent of the loss suffered by Profit if the latter were awarded damages against Profit Holding, does not, to my mind, represent a risk of irreconcilable judgements." (emphasis added)".
96. As pointed out by the parties, there is a large degree of overlap in the applicable case law when addressing the concepts of "close connection" and "irreconcilable judgments" in Article 8(1) of Brussels I (recast).
97. This was, for example, pointed out in Case C-616/10, Solvay SA v Honeywell Fluorine Products Europe BV & Ors, ECLI:EU:C:2012:445, where the Court of Justice reiterated first, at paragraph 23, [14] that it was for the national court to assess whether there is a 'connection' between the different claims brought before it, that is to say, a risk of irreconcilable judgments if those claims were determined separately and, in that regard, to take account of all the necessary factors in the case-file.
98. Again, for judgments to be regarded as 'at risk' of being irreconcilable, it is insufficient that there be a divergence in the outcome of the dispute. Rather, that divergence must also arise 'in the same situation of fact and law'. [15]
99. In this regard, the existence of the same situation of fact 'cannot be inferred' where the defendants are different and the infringements they are accused of, committed in different Contracting States, are not the same. Equally, in the context of Solvay, which was a patent case, 'the same situation of law cannot be inferred' where infringement proceedings are brought before a number of courts in different Contracting States in respect of a European patent granted in each of those States and those actions are brought against defendants domiciled in those States in respect of acts allegedly committed in their territory (see Case C-539/03 Roche Nederland and Ors [2006] ECR I-653, paragraphs 27 and 31).
100. The 'specific' features of the cases involving Messrs. Yasar and Talibov and Ms. Senen are important factors in the assessment of whether there is a close connection. In the applications before me, the parties have agreed that the issues in Mr. Yasar's case, on the Article 8(1) issue, are dispositive of Mr. Talibov's and Ms. Senen's cases on this issue. In recognising the overlap between the concepts of "close connection" and "irreconcilable judgments" and the importance of the "specific features" of any one case, the Court of Justice stated in the context of the particular features of the Solvay 'patent' case (at paragraph 27) that it followed "from the specific features of a case such as that in the main proceedings that potential divergences in the outcome of the proceedings are likely to arise in the same situation of fact and law, so that it is possible that they will culminate in irreconcilable judgments resulting from separate proceedings."
101. The assessment of whether claims are 'closely connected' will, therefore, depend on 'the specific circumstances' of the case.
102. Again, in Solvay v Honeywell (Case C-616/10), the Court of Justice held that multiple defendants can be sued together with an anchor defendant if they infringe the same patent or patents in the same territory based on the same infringement. On the specific facts of that case, it was held that each court would have to examine the alleged infringements under different national legislation governing the various national parts of the European patent alleged to have been infringed and it was possible that this could result in irreconcilable judgments resulting from separate proceedings.
103. In addition to the aforementioned principles, a number of 'limitations' apply when considering these matters: first, their consideration arises in the context of the jurisdictional challenge to the plaintiffs' reliance on Article 8(1) of Brussels I (recast) and, therefore, no comprehensive assessment occurs of the facts or evidence of the substance of the underlying claims; second, none of these matters, in and of themselves, are in any way dispositive of the overarching question of jurisdiction pursuant to Article 8(1). Rather, they comprise factors which I can consider. It is in that limited context that I note, again while not in any way determinative of the issue, that the claims of Mr. Yasar, Mr. Talibov and Ms. Senen against the CCC entities appear to be primarily in the context of the employer and employee relationship (and no difference is made in the contract and tort case against CCC Essen), whereas the case as against Facebook/Meta is only in tort and (as set out later in this judgment) is not the same as the case made against CCC Essen qua employer but arises from what is alleged as a unique and comprehensive degree of control by Facebook/Meta over the activities of the CCC entities.
104. It is against that context and subject to those limitations, for the following reasons having regard inter alia to (i) the interpretation of the phrase "the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings"; (ii) the arguments of the parties (iii) the personal injury summons (and indorsement of claim); (iv) the question of the alleged unique and comprehensive degree of control & risk of irreconcilable judgments; and (v) the different legal bases and the question of foreseeability, that I am of the view that each of the plaintiffs have not discharged the onus of demonstrating that their respective claims come within the terms of Article 8(1) of Brussels I (recast).
105. As set out at the end of this judgment, I propose to make an order setting aside service of the personal injuries summons served on behalf of the plaintiffs on CCC Essen and CCC Barcelona (pursuant to O. 12, r. 26 RSC 1986). I also consider, having regard to the jurisprudence of the CJEU, that it is not necessary to make a preliminary reference on the meaning of 'irreconcilable judgments' and this matter is also addressed.
106. To recap, Article 8(1) of Brussels I (recast) provides that a person domiciled in a Member State may be sued, where he or she is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
107. Again, by way of summary of what was referred to earlier in this judgment, informed by Recital 16 and Recital 21 (referred to above), the objective of Article 8(1) is to facilitate the sound administration of justice whilst minimising the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States: see Solvay, C‑616/10, EU:C:2012:445 at paragraph 19.
108. Given that Article 8(1) is a rule of special jurisdiction which derogates from the default domiciliary principle in Article 4 of Brussels I (recast), I must apply a strict interpretation of its application to the Yasar, Talibov and Senen cases that does not go beyond the cases expressly envisaged by that regulation: see Solvay, C‑616/10, EU:C:2012:445 at paragraph 21.
109. I must therefore ascertain whether, as between claims brought by Messrs. Yasar and Talibov and Ms. Senen in their respective personal injuries summonses as against the CCC entities and Facebook/Meta, there is a connection of such a kind that it is expedient to determine those actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
110. In assessing the prospect or risk of subsequent irreconcilable judgments arising, the concept of 'divergence' is important.
111. It is insufficient, for example, that there may be divergence in the outcome of the dispute, i.e., that, ex hypothesi, the CCC entity is successful, for, example in Germany, and Facebook-Meta is unsuccessful in Ireland (or vice versa, or any different combination of 'possible outcomes').
112. Rather, that divergence must also arise in the context of 'the same situation of fact and law'.
113. Whilst the High Court in Micks-Wallace v Dunne & Anor [2023] IEHC 169, beginning at paragraph 13 of Heslin J.'s judgment, mentioned the reference by the Court of Justice in Case C-539-03, Roche Nederland BV & Ors v Frederick Primus & Anor [2006] ECR I-06535 to differing approaches by it to the term "irreconcilable" in Case C-406/93 Tatry [1994] ECR I-5439 where a broader approach was taken (i.e., "to the effect that, in order to establish the necessary relationship between the cases, it is sufficient that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences" compared to a narrower approach in Case 145/86 Hoffman [1988] ECR 645 (i.e., "in order to ascertain whether two judgments are irreconcilable within the meaning of Article 27(3), it must be determined whether they entail legal consequences which are mutually exclusive", I am satisfied that the key issue is that the divergence must arise in the context of the same situation of fact and law.
114. In this regard, many of the relevant authorities, including, for example, C- 645/11, Land Berlin v Sapir, EU:C:2013:228, Freeport v Arnoldsonn [2007] ECR I-08319, Cartel Damages Claims (CDC) Hydrogen Peroxide SA v Noble NV , C‑352/13, [2016] 53 CML Rev 225, EU:C:2015:335 were analysed in the judgment of the High Court (Heslin J.) in Micks-Wallace v Dunne & Anor [2023] IEHC 169.
115. In Cartel Damages Claims (CDC) Hydrogen Peroxide SA v Noble NV, C‑352/13, [2016] 53 CML Rev 225, EU:C:2015:335, for example, the Court of Justice (Fourth Chamber) stated as follows at paragraph 20 of the judgment:
"(20) Therefore, in order for Article 6(1) of Regulation No 44/2001 to apply, it is necessary to ascertain whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (see judgments in Freeport, C‑98/06, EU:C:2007:595, paragraph 39, and in Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 42). In that regard, in order for judgments to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law (see judgments in Freeport, C‑98/06, EU:C:2007:595, paragraph 40; Painer, C‑145/10, EU:C:2011:798, paragraph 79; and in Sapir and Others, C‑645/11, EU:C:2013:228, paragraph 43)." [16]
116. In Micks-Wallace v Dunne & Anor [2023] IEHC 169, Heslin J. referred at paragraph (38) of his judgment to the next paragraph, i.e., paragraph (21) of the judgment of the Court of Justice in Cartel Damages Claims (CDC) Hydrogen Peroxide SA v Noble NV , C‑352/13, [2016] 53 CML Rev 225, EU:C:2015:335 and added the following underlining/emphasis:
"Regarding the importance of the "same situation of fact and law", the Court stated the following from para. 21 of its decision:
"21. The requirement that the same situation of fact and law must arise is satisfied in circumstances such as those of the case in the main proceedings. Despite the fact that the defendants in the main proceedings participated in the implementation of the cartel at issue by concluding and performing contracts under it, in different places and at different times, according to decision 2006/903 upon which the claims in the main proceedings are based, the cartel agreement amounted to a single and continuous infringement..." (emphasis added)".
117. As recognised at paragraph 28 of his judgment in Micks-Wallace v Dunne & Anor [2023] IEHC 169, referring to paragraph 41 of the judgment of the Court of Justice in Freeport v Arnoldsonn [2007] ECR I-08319; [2008] QB 634, it is for the national courts, to assess, taking into account all relevant factors, whether there is a risk of irreconcilable judgments if the claims were determined separately:
"It is for the national courts to assess whether there is connection between the different claims brought before it, that is to say, a risk of irreconcilable judgements if those claims were determine separately and, in that regard, to take account of all the necessary factors in the case file, which may, if appropriate yet without its being necessary for the assessment, lead it to take into consideration the legal bases of the actions brought before that court." (Underlining and emphasis added by Heslin J. in Micks-Wallace).
118. By way of overview, it is submitted, on behalf of Mr. Yasar, that the system of work as a content moderator was deficient such as to foreseeably cause an injury to him, as a worker. It is contended that the nature of the alleged onerous duties and pressures of time related to having to make several decisions in tight time frames and get most of those decisions right and combined with alleged inadequate training and inadequate psychiatric or psychological support, it was foreseeable that Mr. Yasar would be injured.
119. It is argued that the issue of Mr. Yasar's working conditions must involve both the CCC entities and Facebook/Meta and that this was what Article 8(1) of Brussels I (recast) was meant to address.
120. Looking at Mr. Yasar's arguments in more detail, it is submitted on his behalf that the following are matters which will involve evidence from both CCC Essen and Facebook/Meta and which will require to be heard together at a trial:
(i) it is contended that Facebook/Meta (not CCC Essen) had designed a set of standards which were intended to allow it to screen inappropriate material on its platform. They are Facebook/Meta standards; they are not CCC Essen's standards and Mr. Yasar complains that those standards are so rigorous as to (potentially) cause injury to moderators.
(ii) it is argued that content moderators review content, by way of a ticket, by applying a two tier test: first, an assessment is made as to whether or not a piece of content prima facie violates the Implementation Standards of Facebook/Meta or whether it can be ignored or filters applied; second, a content moderator must identify and select from a suite of options the correct reason as to why the content violates the Implementation Standards and then confirm the appropriate response from a "hierarchy of actions" which entails consideration of a large range of potential actions;
(iii) it is alleged that to identify and choose the correct reason or action from a drop-down menu, in a 30 second period, the plaintiff was often required to repeatedly view extremely violent, graphic and upsetting material. These decisions were subject to audit by more senior persons where a metric of "accuracy" was used, i.e., the percentage of occasions on which the auditor agreed with the decision of the content moderator. It is alleged that at one point, the plaintiff (Mr. Yasar) was required to review a minimum of 500 tickets per day with an expectation of maintaining a minimum level of 98% accuracy.
(iv) in brief, it is alleged that not only was the plaintiff working under pressure, but also under a concern of being dismissed if he, for example, sought the supports which were supposed to be provided. It is contended that whilst this was primarily a matter for Facebook/Meta, the CCC entities, as its agent, may bear some of the responsibility.
121. Mr. Yasar's personal injury summons claims damages against CCC Essen and Facebook and is dated 17th February 2022.
122. The Indorsement of Claim in Mr. Yasar's case is structured as follows: the parties are described at paragraphs (1) to (7); the nature of the claim is set out at paragraph (8) with the acts of the defendants alleged to constitute the wrong and the circumstances regarding the commission of the wrong pleaded at paragraphs (9) to (16); the system of work is described at paragraphs (17) to (29); the commencement of the employment contract is pleaded at paragraph (30) and the ending of Mr. Yasar's contract is pleaded at paragraph (45); the nature of the content moderation work is further described from paragraph (31) onwards, with examples of specific pieces of content pleaded at paragraph (43)(i) to (vii); Mr. Yasar's promotion to the role of Subject Matter Expert is pleaded at paragraph (44); the particulars of alleged negligence, alleged breach of duty (including breach of statutory duty), alleged breach of contract and alleged intentional or reckless infliction of emotional suffering is pleaded at paragraph 46 (a) to (hh); the right to furnish further such particulars and to rely on same is pleaded at paragraphs (47) and (48); at paragraph (49) it is pleaded and alleged that as a result of the previous pleas, Mr. Yasar has suffered severe and lasting personal injuries, loss, damage, inconvenience and expense; the particulars of personal injury are pleaded at paragraphs (50) to (58); the plaintiff claims reliefs and refers to particulars of special damage which are to be ascertained.
123. Several matters are endorsed on the personal injury summons and in the context of the matters which I must consider, at page 12 of the personal injury summons, the Brussels I (recast) endorsement is endorsed in the following terms:
"The court has the power under Regulation No. 1215/2012 to hear and determine the claim herein and should assume jurisdiction under Article 8(1) thereof. No proceedings between the parties concerning the same causes of action are pending between the parties in another Member State of the European Union or in a contracting state of the Lugano Convention".
124. Mr. Yasar's personal details are then set out.
125. In summary, Mr. Yasar alleges, inter alia, the following: CCC Essen were engaged by Facebook/Meta for the purposes of recruiting and hiring personnel to work as content moderators; he was employed by CCC Essen who owed him a duty to ensure his safety, health and welfare; it is alleged that he was working under the ultimate control and direction of Facebook/Meta who was an employer and/or owed a duty to ensure his safety, health and welfare or that both defendants were vicariously responsible for the treatment he was subjected to.
126. Mr. Yasar's particulars of alleged negligence, breach of duty, including breach of statutory duty, breach of contract and intentional or reckless infliction of emotional suffering, include, for example, as set out at paragraph (46(x)), failing to provide the plaintiff with any or any adequate information on the nature of the content he would be required to review; at paragraph (46(y)), failing to ensure that the plaintiff was provided with adequate information and/or advice and/or failing to ensure that same was explained to him, so as to enable the plaintiff to identify the symptoms when they arose and understood the causes of symptoms; at paragraph (46(z)), failing to provide any, or any adequate training to the plaintiff in respect to the duties he was required to carry out; at paragraph (46(aa)), failing to provide any or any adequate training to the plaintiff in preparation for the disturbing, graphic and violent image he was exposed to; and at paragraph (46(bb)), failing to provide any or any adequate supports so as to ensure and/or protect the health and well-being of the plaintiff.
127. Mr. Talibov's Notice of Personal Injuries Summons is in similar format and content and is dated 8th September 2022; likewise, Ms. Senen's Notice of Personal Injuries Summons has the format and similar content and is dated 17th August 2022.
128. In summary, the central themes running through the arguments posited on behalf of Mr. Yasar, and the other plaintiffs, - as set out above, for example, under the subheadings, "Closely connected claims & avoiding the risk of irreconcilable judgments resulting from separate proceedings", "Arguments made on behalf of Mr. Yasar" and Personal Injury Summons - are predicated on an proposition which relates to the suggested "unique and comprehensive degree of control" exercised by Facebook/Meta in the work of content moderators and that without the application of Article 8(1) it is said there runs a risk of irreconcilable judgments arising from separate proceedings.
129. As mentioned, Article 8(1) of Brussels I (recast) provides that for Article 8(1) to apply there must be a risk of irreconcilable decisions arising from the same legal or factual circumstances. It is noted that the Essen Labour Court (with whom Mr. Brust, a German lawyer, agrees) has stated that there is no irreconcilability and whilst it is possible that Facebook/Meta may be liable to Mr. Yasar but not CCC Essen, or vice versa (and expresses an indicative view that the Irish Court has no jurisdiction), it necessarily accepts that it does not determine that matter and, rather, it has stayed its proceedings pursuant to Article 29 of Brussels I (recast) until the Irish High Court has determined, either way, the question of jurisdiction (in the applications before me).
130. In her Affidavit sworn on 7th November 2023, Ms. Amanda Mawson (Vice President of Legal Operations at CCC Essen) states that the CCC entities are responsible for all of the normal incidences of the employment relationship: control and supervision is vested in the CCC entities and not Facebook/Meta; it is CCC Essen rather than Facebook/Meta which is responsible for hiring, setting conditions of employment, performance assessments, responsibility for pay, schedules, and working hours. The CCC entities supervise the day-to-day operations of employees and provide for training with no involvement from Facebook/Meta.
131. In Yasar, Talibov and Senen, the plaintiffs' claims 'qua direct employer relationship' are only against the CCC entities and not against Facebook/Meta. To that extent, it is said that there is no risk of irreconcilable judgments resulting from separate proceedings. Thus, Facebook/Meta could be found liable and the CCC entities not, or vice versa.
132. On behalf of Messrs. Yasar and Talibov and Ms. Senen, Ms. Diane Treanor, solicitor, avers inter alia that Facebook/Meta outsources the vast majority of content moderation work to third party vendors. Ms. Trainor states that the policies and systems implemented by such companies were designed, directed and ultimately controlled by Facebook/Meta and she states, from a practical perspective, without the extensive involvement and oversight exercised by Facebook/Meta, companies such as the CCC entities would not be capable of implementing such a critical and fluid function on behalf of Facebook/Meta. Taking the case of Mr. Yasar, for example, it is contended that his claim as against Facebook/Meta stems from the unique and comprehensive degree of control which Facebook/Meta exercised over the system of work implemented by CCC Essen (and its other third party providers). [17] Specifically, it is claimed that if Mr. Yasar's claims against Facebook/Meta and CCC Essen were to proceed separately, there would be a risk that conflicting and irreconcilable judgments would be delivered in circumstances where the court hearing each action/aspect of Mr. Yasar's claim would be required to establish, inter alia, "what, as a matter of fact, the systems of work, policies/procedures/training in place and known/foreseeable risks were and, potentially, the extent to which the Plaintiff adhered to those structures which were in place. Such issues arise in the context of both a contractual employment claim and/or a claim of tortious liability." [18]
133. In assessing these matters, in Mr. Yasar's case, for example, the personal injury summons confirms that there is no contractual claim made by Mr. Yasar as against Facebook/Meta. The written submissions (at paragraph 1.3) confirm that "[i]t is not disputed that the Plaintiff's contract of employment was with CCC Essen, or that there was no contractual nexus between the Plaintiff and Meta". The claim, rather, is on the basis that Facebook/Meta had a unique and comprehensive degree of control over the system of work implemented by the CCC entities (in this case CCC Essen) which is a claim in tort. In summary, the risk of irreconcilability, as argued on behalf of Mr. Yasar, is predicated upon: (i) what the systems of work in place were; and (ii) whether Mr. Yasar (taking his situation, for example) adhered to the structures that were in place.
134. I consider that the plaintiffs' cases against the CCC entities and Facebook/Meta are not so closely related so as to constitute a risk of irreconcilable judgments arising from the same situation of law and fact. Amongst the factors considered, the employer of Mr. Yasar is CCC Essen. It has the normal duties of an employer to provide a safe system of work etc., (which have been referred to earlier in this judgment). Facebook/Meta does not have these obligations qua employer. It is, rather, contended that Facebook/Meta exercises a unique and comprehensive degree of control over the system of work implemented by CCC Essen, i.e., that Facebook/Meta has as a duty as the client of an employer (CCC Essen) to the (CCC Essen) employees, which, in my view, is different from the duty to provide a safe system of work that is owed by CCC Essen, in this case, to Mr. Yasar and raises a different factual matrix and a different legal context.
135. Further, and recognising the limitations when assessing a jurisdiction challenge, this difference as between CCC Essen, on the one hand and Facebook/Meta, on the other is further exemplified on the question of 'subject access requests'.
136. The reference, for example, by Ms. Treanor to data in the 'Ireland only cases' derives from data subject access requests which are different and distinct cases in which both Facebook/Meta and the provider of the content moderation services are 'Irish companies' and involve 'Irish only workers' which is not the situation with Messrs. Yasar, Talibov and Ms. Senen. On behalf of the CCC entities, the point is made in response that they (i.e., the CCC entities and not Facebook/Meta) are responsible for the management of their employees which has nothing to do with Facebook/Meta. They give the example that information is inputted by the CCC entities including, for example, in relation to workers' status, start dates and end dates etc., into a 'Supernova' system which is what the 'CCC entities' workers use when carrying out content moderation services. The information found in data subject access requests is maintained by CCC Essen, for example, from a system previously known as the VWMP (Vendor Worker Management Programme) which, since 2022, is the Contingent Services Centre (CSC) tool for which vendor contractors who are employed by entities other than Facebook/Meta access the system. It is controlled and populated by a limited number of CCC Essen employees following the onboarding of employees to CCC Essen to grant them access to a 'plug-in' system, i.e., 'Supernova', which CCC Essen employees utilise and 'plug in' to CCC Essen hardware at CCC Essen offices to access Facebook/Meta content for review. Notably, this 'plug-in' cannot be utilised by content moderators outside of a CCC Essen office. The information provided, therefore, relates to the individual's Supernova accounts and not their employment contract with CCC Essen. CCC Essen employees undergo training provided by a training team led by CCC Essen management. CCC Essen employees spend a prescribed period in various employment related training sessions, including working in tandem with those more experienced team members. To be permitted to access the Supernova platform, Facebook/Meta requires each CCC employee to conduct mandatory privacy courses via their portal in relation to Facebook/Meta's data and these are recorded in the 'data subject access requests'. CCC Essen has similar arrangements in place with other contractors. In terms of the question of irreconcilability and the provisions of Article 8(1), hypothetically Mr. Yasar could succeed against CCC Essen because, if proven, it had failed in its duty to provide a 'safe system of work' but could fail against Facebook/Meta because such a duty of care was not established or was not breached or there was a failure to prove a 'unique and comprehensive degree of control'.
137. It is not my function in these applications to determine any dispute between the parties as to the level of control which the CCC entities or Facebook/Meta exercise having regard to the matters discussed above. Rather, my assessment is by reference only to the jurisdictional question raised in Article 8(1) of Brussels I (recast) and, for the reasons set out above, I do not consider that these specific features, as just outlined, constitute a divergence in the context of the same situation of fact and law such as to create a real risk of irreconcilable judgments in Germany and Ireland.
138. The principle of legal certainty requires that the special rules on jurisdiction, such as that contained in Article 8(1) of Brussels I (recast) be interpreted in such a way as to enable the CCC entities, as normally well-informed defendants, to reasonably foresee before which courts, other than those of the State in which he or she is domiciled, he or she may be sued. This is made clear at paragraphs 24 and 25 of the judgment of the Court of Justice in Reisch Montage, C‑103/05, EU:C:2006:471, as follows:
"(24) It is for the national courts to interpret those rules having regard for the principle of legal certainty, which is one of the objectives of Regulation No 44/2001 (see, in relation to the Brussels Convention, Case C-440/97 GIE Groupe Concorde and Others [1999] ECR I-6307, paragraph 23; Case C-256/00 Besix [2002] ECR I-1699, paragraph 24; and Case C-281/02 Owusu [2005] ECR I-1383, paragraph 38).
(25) That principle requires, in particular, that the special rules on jurisdiction be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (see GIE Groupe Concorde and Others , paragraph 24; Besix , paragraph 26; and Owusu , paragraph 40)."
139. Again, this reflects Recital (16) which I have referred to previously in this judgment and, in this context, provides as follows:
"In addition to the defendant's domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation."
140. In Micks-Wallace v Dunne & Garcia [2023] IEHC 169, the High Court (Heslin J.) emphasised at paragraphs 11 and 12 that having regard to the requirements of predictability and foreseeability which infused the proper interpretation of Brussels I (recast) and in particular the exceptions to the default domiciliary rule, the "special jurisdiction" in the Article 8(1) exception must be interpreted strictly and consequently the onus of proof rested on the plaintiff to establish that the claim 'unequivocally' came within the relevant exception (citing the decision of the Supreme Court in Handbridge Ltd v British Aerospace Communications Ltd [1993] 3 I.R. 342 which also referred to Kalfelis v Bankhaus Schroder & Ors [1988] ECR 5565, ECLI:EU:C:1988:459) and which is similar language to the application of a strict or restrictive interpretation or close enquiry to the exceptions to the default domiciliary rule. Heslin J., at paragraph 27 of his judgment, observed that it was accepted by the parties in that case that the applicability, or not, of Article 8(1) was to be determined in the context of EU authorities and the question was not governed by national law.
141. In paraphrasing and adapting paragraph 36 of the judgment of Heslin J. in Micks-Wallace v Dunne & Garcia [2023] IEHC 169 to the applications before me, any consideration Messrs. Yasar and Talibov and Ms. Senen's claims against the CCC entities and Facebook-Meta may have different legal bases is not, in and of itself, dispositive of the question regarding reliance on Article 8(1). It is, however, a factor to be considered.
142. Additionally, where claims have different legal bases, the issue of foreseeability is engaged, i.e., a difference in legal bases will not preclude the application of Article 8(1) provided that it was foreseeable by the CCC entities (in this case) that they might be sued in a member state where at least one of them is domiciled. On behalf of the plaintiffs, it is submitted that the test is not whether CCC Essen might have foreseen that it would be sued in a court other than the Essen courts, but rather whether it was reasonably foreseeable that if it was sued in courts other than the Essen Court, the venue for such an action might potentially be Ireland. As Heslin J. observed in Micks-Wallace v Dunne & Garcia [2023] IEHC 169 (at paragraph 36), it can be noted that this principle, as articulated in Case C-145/10 Eva Maria Painer v Standard Verlags [2011] E.C.R 0000, EU:C:2011:798, reflects the contents of Recital 16 of Brussels I (recast) which lays emphasis on foreseeability and Recital 15 which emphasises predictability.
143. It is argued on behalf of Mr. Yasar, for example, that it was reasonably foreseeable on the part of CCC Essen that if there was litigation against Facebook/Meta, it would be joined. It is suggested, for example, it would have been immediately apparent that if any of the content moderators had a complaint against Facebook/Meta, that complaint would be canvassed in Ireland, and that being entirely foreseeable, CCC Essen could have foreseen that would have resulted in litigation in Ireland. Further reference is made to the notice claiming indemnity or contribution, where Facebook/Meta not only refer to CCC Essen's potential obligations in tort but also refer to an indemnity it is said CCC Essen has provided to Facebook/Meta in relation to any claims by content moderators.
144. It is further argued that as Facebook/Meta is solely and entirely responsible for policing the material on its platform, it must devise the criteria to do so and, therefore, must put the manpower in place to deliver those criteria and that this is required to be done on an international basis, country-wide, i.e., emphasising the universality of the content moderation.
145. On behalf of Mr. Yasar, it is submitted that whilst it makes little difference, having regard to the totality of the facts, in addition to its potential contractual liability, CCC Essen is also potentially liable to the Plaintiff in tort, it is more accurate to state that there are common legal bases for the claims against CCC Essen and Facebook/Meta, with CCC Essen having an additional contractual liability which is unique to that defendant.
146. Having regard to the totality of the facts, however, I do not consider that CCC Essen, being a well-informed defendant and as a German company who had employed persons to carry out work in Germany for the Turkish market, could reasonably foresee it being sued in Ireland arising from the fact that the material being moderated was from a platform whose company had a head office in Ireland.
147. In this regard, while not in any way dispositive of the question but rather representing an additional range of factors to which I have to give consideration in balancing the respective arguments of the parties, this case (in any jurisdiction) will be decided according to German law and in his Affidavit and exhibits, Mr. Dirk Brust, a German lawyer, makes a number of observations in proffering a view is that there is no risk of irreconcilable judgments.
148. Albeit, within the confines of the jurisdictional limitations of Article 8(1) of Brussels I (recast), Mr. Brust explains his view that the claims against CCC Essen and Facebook/Meta are factually different, have different legal basis and there is no irreconcilability.
149. Mr. Brust states, for example, that there are different legal bases in German law for the claims against CCC Essen, on the one hand and Facebook/Meta, on the other hand, including that the respective plaintiffs can only assert claims for damages against Facebook/Meta on the basis of alleged tortious liability within the meaning of Section 823 of the German Civil Code (BGB) and against CCC Essen in their capacity as employees and states that there are special features of the employment relationship which do not arise in a claim based on tort. Further in this regard, Mr. Brust states that section 823 of the German Civil Code does not require a contractual legal relationship, it is a general tortious basis for a claim; he references certain special features in labour law, such as the expiry period in the employment contract and also a special care relationship and states that these legal instruments are not related to tortious liability.
150. Mr. Brust states that there is, in his view, no risk of incompatible judgments according to German Law: for example, an employment relationship only exists with CCC Essen and under German law, there would be no objection if different results or judgments were determined in the respective legal relationships; he states that since there are different legal relationships and bases, there is no risk under German law that different judgments will be made, this would be the normal consequence and that, even if the judgments were different, these would not be considered incompatible judgments, due to the different basis for the claim.
151. Mr. Brust states, in addressing one of the questions posed, that in the event that the German proceedings are resumed, employees whose rights have been allegedly impaired can bring a counterclaim seeking damages within a three year period in the proceedings before the Labour Court in Essen.
152. As mentioned earlier, CCC Essen is Mr. Yasar's employer and not Facebook/Meta. It is CCC Essen and not Facebook/Meta which is responsible for providing the system of work. It not disputed by the parties that Mr. Yasar's contract of employment is with CCC Essen and that there is no contractual nexus between Mr. Yasar and Facebook/Meta. Rather, the case made on behalf of Mr. Yasar was summarised as claiming that by reason of the 'unique and comprehensive degree of control' which Facebook/Meta exercised over the system of work implemented by CCC Essen, Facebook/Meta has a tortious liability to Mr. Yasar where there is negligence in respect of injuries suffered in the course of his work. In a context necessarily limited to the jurisdictional question raised in Article 8(1) of Brussels I (recast), the specific features referred to above suggest a different situation of fact and law, including, for example, a different tortious responsibility or duty of care which is claimed is owed by Facebook/Meta as the customer of the CCC entities to Mr. Yasar (and to Mr. Talibov and Ms. Senen) compared to that owed in contract (or in tort) by CCC Essen qua employer to Messrs. Yasar and Talibov and Ms. Senen, as employees. Such circumstances and features would not, therefore, suggest a divergence in the context of the same situation of fact and law such as to create a real risk of irreconcilable judgments in Germany and Ireland.
153. Further, having regard to the jurisdictional issue under consideration, in the context of such specific features, ex hypothesi any possible finding against the CCC entities that it was in breach of its contractual obligations (or those in tort) to Mr. Yasar to provide a safe system of work and a finding, again hypothetically, in favour of Facebook/Meta i.e., that either it did not have duty of care as the customer of the CCC entities to Mr. Yasar (and to Mr. Talibov and Ms. Senen), or if it did, it was not breached, would not comprise a divergence in the context of the same situation of fact and law and would not lead to a risk of incompatible judgments arising in Germany and Ireland.
154. Ms. Kyra Senen had a contract of employment with CCC Barcelona (a Spanish company) from 18th May 2018 to in or around June 2020.
155. The same Article 8(1) point which arises in the Yasar and Talibov cases also applies in Ms. Senen's case and my determination of that issue in Yasar applies mutatis mutandis in Senen.
156. However, unlike, the situation with Messrs. Yasar and Talibov, Ms. Senen's contract contained an exclusive jurisdiction clause providing for the courts in Barcelona to have jurisdiction in the event of any dispute. In her contract of employment, Clause 21 provided that "[b]oth contract parties irrevocably submit to the exclusive jurisdiction of the Courts of Spain in Barcelona for the purpose of hearing and determining any dispute arising from this Contract."
157. A further difference arises in that there is no similar application as that before the Essen Labour Court so there is no issue of a court being deemed to have been first 'seised'.
158. It will be recalled that Section 5 of Brussels I (recast) addresses "Jurisdiction over individual contracts of employment" at Articles 20, 21, 22 and 23.
159. It was submitted on behalf of Ms. Senen that the jurisdiction clause in question does not comply with Article 23, contending, contrary to its provisions, that the agreement was not completed after the dispute and referred to Article 25(4) which inter alia provides that "[a]Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles [15, 19 or] 23".
160. Article 23, however, does not disapply Article 25 in cases where jurisdiction is based on Article 8. Contrary to the argument made on behalf of the plaintiffs, Article 20(1) provides that in matters relating to individual contracts of employment, jurisdiction shall be determined by section 5 without prejudice to inter alia (in the case of proceedings brought against an employer) Article 8(1). Agreements which seek to invoke Article 8(1) as a jurisdictional basis over individual contracts of employment are not subject to section 5 (Articles 20 to 23) of Brussels I (recast). The Article 8(1) jurisdictional agreements are predicated on the provisions of Article 8(1) and section 5 (including Article 23) is irrelevant to those agreements.
161. For example, Article 23 states that the provisions of that section (i.e., section 5: Articles 20 to 23) may be departed from only by an agreement: (1) which is entered into after the dispute has arisen; or (2) which allows the employee to bring proceedings in courts other than those indicated in that Section.
162. Accordingly, when Article 23 says that the provisions of this Section may be departed from only when the above criteria are satisfied, that in effect is without prejudice to Article 8(1) in the specific context of proceedings brought against an employer. It is incorrect, in my view, to suggest that "in relying upon Article 8(1), the Plaintiff is undoubtedly relying upon Section 5".
163. Further, and as set out earlier, the personal injury summonses in the Yasar, Talibov and Senen cases all contained, on their face, the Article 8(1) endorsement.
164. As mentioned, Articles 25 and 26 are contained within Section 7, which relates to the 'Prorogation of jurisdiction' where the parties have contracted to include an exclusive jurisdiction clause. From an interpretive perspective, this reflects Recital (19) which provides that "[t]he autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation."
165. When looked at both in isolation and in context, Article 25(4) is not limited to trust instruments but, rather, relates to an agreement conferring jurisdiction and to trust instruments conferring jurisdiction.
166. This is clear from the terminology used: Article 25(1) refers to agreements conferring jurisdiction; Article 25(3) refers to trust instruments conferring jurisdiction; Article 25(4), then, refers to both agreements or trust documents. The reference to agreements or provisions of a trust instrument meaning in effect 'agreements' and 'provisions of a trust instrument' in Article 25(4) is, in my view, the correct interpretation of the provisions.
167. For the reasons stated above, the reference, however, in Article 25(4) to "[a]greements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Article ... 23" does not disapply Article 25 in a case where jurisdiction is based on Article 8 because, it will be recalled, Article 20(1) provides that in matters relating to individual contracts of employment, jurisdiction shall be determined by Section 5 without prejudice to inter alia, Article 8(1) in the context of proceedings brought against an employer.
168. Ms. Senen has chosen to issue (and endorse) proceedings in accordance with Article 8(1) of Brussels I (recast) rather than relying on a jurisdictional basis under Section 5 and her claim is, therefore, also subject to the jurisdiction agreement clause of Brussels I (recast), i.e., Article 25, and not to the jurisdiction over individual contracts of employment provisions of Section 5 (including Article 23).
169. Separately, on behalf of Ms. Senen, reference is also made to the Affidavit of Edmund Sweetman sworn on 10th September 2024, a practising Spanish lawyer, who, in addition to addressing Spanish employment law, inter alia states at paragraph 8 that from "the perspective of civil law, i.e. even where it is considered that there has been no illegal transfer of workers but the employee has still suffered damages during the performance of his/her services, the employee may claim responsibility for such damages and losses from both his or her employer and any companies that may have directly or indirectly participated in the events causing the damage or harm, (through their workers equipment, materials, facilities, training, etc.), suffered by the claimant employee in accordance with the ordinary principles of extra-contractual liability as governed in general by article 1902 of the Spanish Civil Code."
170. In referring to this extract from Mr. Sweetman's Affidavit, the point is argued that as with the German proceedings, there is a potential non‑contractual claim under Spanish law against Facebook/Meta.
171. In the Senen case (as with Yasar and Talibov), the question arose as to whether there is a risk of irreconcilable judgments if the case against Facebook/Meta is tried in Ireland and the case against CCC Barcelona is tried in Spain. Mr. Sweetman's opinion, however, addresses a different matter, namely, that Facebook/Meta can be sued in Spain. For the reasons, which I have set out in the context of Mr. Yasar's case which apply mutatis mutandis to Ms. Senen, I do not consider that Ms. Senen has discharged the onus of demonstrating that her claim comes within the exception contained in Article 8(1) of Brussels I (recast).
172. As referred to earlier in this judgment, Section 9: Articles 29 to 34 of Brussels I (recast) provide for "lis pendens– related actions".
173. Article 29(1) provides: "[w]ithout prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established." [19]
174. Article 29(2) provides: "[i]n cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32."
175. Article 29(3) provides: "[w]here the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
176. Article 30(1) provides: "[w]here related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings."
177. Article 30(2) provides: "[w]here the action in the court first seised is pending at first instance, any other court may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof."
178. Article 30(3) provides: "[f]or the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
179. Article 31(1) provides: "[w]here actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court." [20]
180. Article 31(2) provides: "[w]ithout prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement."
181. Article 31(3) provides: "[w]here the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court."
182. Article 31(4) provides: "[p]aragraphs 2 and 3 shall not apply to matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the claimant, and the agreement is not valid under a provision contained within those sections."
183. Article 32(1) provides: "[f]or the purposes of this Section [i.e. section 9], a court shall be deemed to be seised (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
The authority responsible for service referred to in point (b) shall be the first authority receiving the documents to be served."
184. Section 9 also contains provisions at Articles 33 and 34 regarding lis pendens and related actions pending before a court of a third State where jurisdiction is based on Article 4 or on Section 2 of Brussels I (recast).
185. Article 29(1) describes the lis pendens rule (i.e., a pending legal action or the first-in-time rule) as requiring, where proceedings involving the same cause of action and between the same parties, the court in which the proceedings are first seised (i.e., first commenced) to determine whether they have jurisdiction to determine the dispute. The first seised court has no discretion to stay the proceedings in favour of the courts of a different country, the "other court" (i.e., any court other than the court first seised) is required to stay proceedings until the "first seised court" has determined jurisdiction.
186. In not seeking to add any further layer of complexity to these cases, whilst the only issue to be addressed in the Yasar case was the 'Article 8(1) issue', in terms of explaining the background to these cases, the Essen Labour Court proceedings in Mr. Yasar's case were referred to at length during the hearing but, of course, there is no exclusive jurisdiction clause at issue in the cases involving Messrs. Yasar and Talibov; it only arises in Ms. Senen's case.
187. In the Yasar case - which again, does not involve an exclusive jurisdiction clause - it was contended on behalf of the CCC entities, that the Essen Labour Court (which has stayed its proceedings pending the outcome of the decision of this court) was in fact the correct court 'first seised' and should continue with its case.
188. Separately, and by way of general observation, case-law has recognised that the lis pendens, or first-in-time rule, has implications where, for example, a claim had been commenced contrary to the provisions of an exclusive jurisdiction clause.
189. The position that applied under Brussels I (Regulation 44/2001 EC) was referred to by Clarke J. (as he then was) in Goshawk Dedicated Ltd & Ors v Life Receivables Ireland Ltd [2008] IEHC 90, at paragraphs (6.2) to (6.4), as follows:
"(6.2)....The jurisdiction in which proceedings are first commenced in effect retains seizer until such time as that jurisdiction has determined whether, in accordance with the rules set out in Regulation, it has jurisdiction. Any subsequent proceedings commenced in a second or subsequent Member State are stayed until such time as the courts of the Member State first seized of the case have come to a conclusion as to whether they have jurisdiction. If those courts determine that they have jurisdiction, then that is the end of the matter and (subject to the possibility that a different view might be taken by the ECJ on a reference) the courts first seized will determine the matter and the result will be recognised in all other Member States. If the courts first seized do not consider that they have jurisdiction under the terms of the Regulation, and so determine, then, of course the stay on the continuance of the proceedings in the courts of a jurisdiction second seized is lifted and that court may go on to consider, in turn, whether it has jurisdiction.
(6.3) That this process is one to be rigorously applied is most strikingly illustrated in Erich Gazzer GmbH v MISAT [2003] E.C.R. 1 –14693, where the ECJ determined that the process had to be strictly applied notwithstanding it being clear that the Courts of Italy were the subject of extraordinary delays (indeed delays found on many occasions to be in breach of obligations under the European Convention on Human Rights) such that the commencement of proceedings in Italy, even where there was little basis for asserting an Italian jurisdiction, had, in practice, the effect of freezing proceedings in any other jurisdiction during the very prolonged period that would elapse before the Italian courts would be likely to determine that they did not have jurisdiction. It has been asserted in commentaries that a tactic, colourfully described as the "Italian Torpedo", was available to parties who wished to delay proceedings by the simple expedient of commencing, at the earliest possible date, a form of proceedings in the Italian courts thus freezing the possibility of any other proceedings being commenced, or progressed, elsewhere within the EU during the prolonged period that the Italian court was likely to take to determine that it did not have jurisdiction. Notwithstanding those difficulties, the ECJ held that the mandatory provisions of the Regulation required that proceedings in any other jurisdiction remain stayed pending a determination by the Italian courts of Italy's jurisdiction.
(6.4) It is clear, therefore, that, as and between Member States, a strict application of the doctrine of lis pendens applies. Courts of one jurisdiction are precluded from exercising jurisdiction over a dispute until the courts of a jurisdiction first seized with that dispute have dealt with the question of whether that court first seized has, in fact, jurisdiction. Against that background it is argued, correctly at least so far as it goes, that the Regulation itself acknowledges a lis pendens doctrine".
190. Again, by way of general observation, in response to the "Italian Torpedo" scenario, (contextualised by Clarke J. in the quoted extract above from Goshawk Dedicated Ltd & Ors v Life Receivables Ireland Ltd), Article 31(2) was added as an amendment enacted via Brussels I (recast) on 10th July 2015 and accordingly, provides an exception to the lis pendens rule where there is an exclusive jurisdiction clause. In terms, it provides that "without prejudice to Article 26,[ [21]] where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement." [22]
191. The purpose and objective which Article 31(2) is intended to achieve is reflected in Recital (22) of Brussels I (recast) as follows:
"However, in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to deal satisfactorily with a particular situation in which concurrent proceedings may arise. This is the situation where a court not designated in an exclusive choice-of-court agreement has been seised of proceedings and the designated court is seised subsequently of proceedings involving the same cause of action and between the same parties. In such a case, the court first seised should be required to stay its proceedings as soon as the designated court has been seised and until such time as the latter court declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that, in such a situation, the designated court has priority to decide on the validity of the agreement and on the extent to which the agreement applies to the dispute pending before it. The designated court should be able to proceed irrespective of whether the non-designated court has already decided on the stay of proceedings.
This exception should not cover situations where the parties have entered into conflicting exclusive choice-of-court agreements or where a court designated in an exclusive choice-of-court agreement has been seised first. In such cases, the general lis pendens rule of this Regulation should apply."
192. Therefore, Article 31(2) of Brussels I (recast) enables the court nominated by the parties in an agreement which contains an exclusive jurisdiction clause to decide its own jurisdiction before, and without regard to, the court which is first seised. In addition, the nominated court is not obliged to stay its own proceedings pending any determination by the first court seised as to jurisdiction.
193. Accordingly, if proceedings are commenced in the court nominated in the exclusive jurisdiction agreement, all other EU Member State courts must stay the proceedings before them until the nominated court declares that it has no jurisdiction under the agreement. If the nominated court determines that it has jurisdiction, all other EU Member State courts must decline jurisdiction as per the provisions in Article 31(3) of Brussels I (recast)).
194. As with other provisions in Brussels I (recast), Article 31(2) uses the syntax and phraseology of "Without prejudice to Article 26".
195. By way of further example, Article 29(1) itself begins in the following terms "Without prejudice to article 31(2)".
196. Article 20(1) provides that in matters relating to individual contracts of employment, jurisdiction shall be determined by Section 5 without prejudice to, inter alia, in the case of proceedings brought against an employer, Article 8(1).
197. The reference in Article 31(2) to "Without prejudice to Article 26" means that the first inquiry to make is whether or not a defendant has entered an appearance in the proceedings before the court which first seised as the without prejudice is referable to Article 26, which in turn refers to when a defendant will be taken to have entered an appearance and by so doing submitting to the jurisdiction of a court and if that has happened, the provisions in Article 31 will not apply.
198. Insofar as Mr. Talibov's case is concerned, whilst reference is being made to Section 9 (lis pendens), it does not involve Article 31(2) (exclusive jurisdiction) which provides for the exception to the lis pendens rule but rather refers to Articles 29(1) and (3), 30(1), 30(3) and 32(1) of Brussels I (recast).
199. To recap, (and as referred to earlier), Article 29(1) describes the lis pendens rule as requiring, where proceedings involving the same cause of action and between the same parties, the court in which the proceedings are first seised to determine whether they have jurisdiction to determine the dispute.
200. Mr. Talibov had a contract with CCC Essen from 30th October of 2017 to in or around December 2019 in the same format as the contract in the Yasar case. As with Mr. Yasar, the issue related to a German choice of law clause rather than a German exclusive jurisdiction clause.
201. The central sequential difference in Mr. Talibov's case is that PIAB had granted an authorisation to Mr. Talibov on 28th March 2022 (after Mr. Talibov had issued a PIAB claim on 22nd March 2022 against the defendants), and subsequently CCC Essen's proceedings in relation to Mr. Talibov before the Essen Labour Court in Germany were instituted on 20th July 2020 (which sought a similar negative declaration as that sought by CCC Essen before the Essen Labour Court in the Yasar proceedings) and Mr. Talibov's Irish proceedings (the Notice of Personal Injury Summons) were issued on 8th September 2022.
202. It was suggested, on behalf of the plaintiffs, that while technically available, the proceedings in the Essen Labour Court had the effect of circumventing the proceedings in Ireland and reference was made to the fact that the value in the proceedings in the Essen Labour Court was limited to €1,000 on the face of the summons and the action was for a pre‑emptive declaration on behalf of CCC Essen.
203. By a decision made on 14th February 2023, the Essen Labour Court in Germany took the view that Article 29 of Brussels I (recast) applied, and it suspended its proceedings on its interpretation that the application to PIAB meant that the Irish High Court had been 'first seised' in the Talibov proceedings.
204. Earlier in this judgment, I referred to certain limitations which apply when assessing and determining a jurisdiction challenge. Other than referring, for example, to the reasoning and basis on which a court in another jurisdiction may have 'stayed ' proceedings between the same parties before that court in that jurisdiction, it is not my function to state whether I agree or disagree with the rationale or reasoning offered by that court or any other views offered (obiter) by that court on jurisdictional issues.
205. Whilst it may be the case, therefore, that my assessment and decisions on these jurisdiction applications have a coincidental consequence, in some respects, of agreeing with the approach of the court of another jurisdiction, i.e., in this case the Essen Labour Court, and in other respects has a coincidental consequence of disagreeing with the approach of that court, my starting point is that the disputes in each of the Yasar, Talibov and Senen cases are civil and commercial matters within the meaning of Article 1(1) of Brussels I (recast) and, therefore, section 2 of the Regulation and the associated principles (arising from the established case law) apply in respect of the assessment and determination of the jurisdiction questions raised. As stated earlier, it is not my function to review or assess the decisions of the Essen Labour Court. Rather, in the three applications before me, jurisdictional challenges have been raised before the Irish High Court which require a determination.
206. I consider, for the following reasons, that the application to PIAB in Mr. Talibov's case does not mean that the Irish Court was first seised of the matter as that term is understood in Article 29 of Brussels I (recast). In so finding, I emphasise again that it is not my function to, in any way, review the finding of the Essen Labour Court.
207. The issue of "sequencing" and when "proceedings are brought" are, for example, important considerations in assessing these matters in the context of Mr. Talibov's case.
208. In addressing this central question, however, an Irish court is not 'seised' of proceedings by virtue of the initiation of a PIAB application or the making of a PIAB authorisation.
209. At paragraph 343 of his judgment in the Supreme Court in Delaney v The Personal Injuries Board & Ors [2024] IESC 10, Collins J. summarised how the condition precedent of an authorisation was required prior to the commencement or initiation of proceedings pursuant to the provisions of the Personal Injuries Assessment Board Act 2003 ("the PIAB Act"), including section 32:
"the Plaintiff here was not in a position simply to institute proceedings against the Local Authority. Instead, the PIAB Act required personal injury claimants to first make an application to PIAB and put a bar on the institution of court proceedings unless and until authorised by PIAB. To accommodate that requirement, the Oireachtas provided for a standstill period for limitation purposes[ [23]] while the application was being processed by PIAB and for a further
period after the authorisation issued: section 50 of the PIAB Act. A further indication of the integration of the PIAB process and proceedings in court is provided by section 51A which provides for adverse costs consequences for claimants if they fail to accept a PIAB assessment and then do fail to obtain a higher award in court (section 51A was inserted by Personal Injuries Assessment Board (Amendment) Act 2007 and has been significantly amended - and made more onerous from a claimant's point of view - by section 16 of the Personal Injuries Resolution Board Act 2022)".
210. In a similar vein, in his judgment in the Supreme Court in Delaney v The Personal Injuries Board & Ors [2024] IESC 10, Hogan J. referred at paragraph 84 to the plaintiff having made "her application to PIAB in June 2019. She was debarred by statute from launching her personal injuries action pending the grant of authorisation by PIAB. This in turn depended on the making of an assessment by PIAB... She was not free to issue her proceedings against Waterford County Council until PIAB had made the assessment on 13th May 2021. As I have already noted, she subsequently obtained the letter of authorisation pursuant to s. 32 of the 2003 Act on 3rd June 2021 enabling her to commence proceedings following her earlier rejection of that PIAB offer".
211. Further, given that an Irish court is not seised of proceedings by virtue of the initiation of a PIAB application or its authorisation, the legislative architecture of the PIAB scheme, as described relatively recently by the Supreme Court in Delaney v The Personal Injuries Board & Ors [2024] IESC 10 (as per the extracts quoted above from Hogan J. and Collins J.) is very different, and in my view distinguishable from, that which was at issue in the conciliation/arbitration process in Schlömp v Landratsamt Schwäbisch Hall, Case C-467/16) EU:C:2017:993.
212. The decision of the Court of Justice in Schlömp was referenced in the decision of the Essen Labour Court. In Schlömp, the Court of Justice held that where it was mandatory to have recourse to conciliation proceedings, a Swiss conciliation/arbitration authority responsible for dealing with civil actions constituted a court for the purposes of Articles 27 and 30 of the 2007 of Lugano Convention. Consequently, if that authority was 'first seised' of the same proceedings, other courts must, of their own motion, stay subsequent proceedings. The Court of Justice inter alia held that a court was already considered to have been invoked at the time at which the mandatory conciliation/arbitration proceedings had been initiated before an arbitration authority under Swiss law and observed at paragraph 53 that:
"Article 9(2) of the Swiss Federal Code on Private International Law states that, in order to determine when a court in Switzerland is seised, the date of the first act necessary to institute the action is to be decisive and that the initiation of conciliation proceedings is to suffice".
213. This, however, can be contrasted to the statutory process in Ireland as provided for under the PIAB Act where there is no equivalent provision that the making of an application to PIAB would suffice for the purpose of demonstrating the date on which proceedings are issued.
214. Further, I consider that the facts and law which apply in Mr. Talibov's case come closer to those which applied in Hanse Yachts, C‑29/16, (EU:C:2017:343) rather than Schlömp, having regard to the objectives behind Article 29 of Brussels I (recast) and the provisions of the PIAB legislation.
215. The decision in Hanse Yachts concerned a process for preserving evidence on which subsequent legal proceedings could be based. The Court of Justice held that this procedure for the taking of evidence was independent in relation to the substantive procedure which may, if necessary, be brought subsequently.
216. The Court observed, at paragraph 35 of its judgment, that having regard to this independence and the very clear distinction between the proceedings for the taking of evidence, on the one hand, and any substantive procedure, on the other, the concept of an 'equivalent document' to a document instituting legal proceedings, set out in Article 30 of Brussels I (now Article 32(1)(a) and (b) of Brussels I (recast)), "must be interpreted as meaning that a document instituting proceedings for the taking of evidence cannot be regarded, for the purposes of assessing a situation of lis pendens and of determining which court is the court first seised within the meaning of Article 27(1) of [Brussels I (now Article 29(1) of Brussels I (recast))], as also being the document instituting the substantive proceedings" and that such an interpretation would be incompatible with the objective of having a "simple and uniform identification of the time at which a court is seised."
217. Further in Case C-173/16, MH v MH, ECLI:EU:C:2016:542, the Court of Justice held that Article 16(1)(a) of Council Regulation (EC) No. 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments dealing with matrimonial and parental responsibility matters) must be interpreted to the effect that the "time when the document instituting the proceedings or an equivalent document is lodged with the court", was the time when that document was lodged with the court concerned, even if under national law lodging that document did not of itself immediately initiate proceedings.
218. An application to PIAB is not an application to court and the decision of the Court of Justice in MH v MH required that a document be lodged with the national court. The Court of Justice had earlier observed at paragraph 5 of its judgment that "according to the procedural rules applicable in Ireland, as set out by the referring court, proceedings are initiated when the summons is issued by the registry of the court concerned. Service of the summons is not required prior to proceedings being initiated. Once issued, the summons is served on the respondent".
219. In terms of PIAB, therefore, after it grants an authorisation consequent upon an application, a personal injuries action may only be commenced by the issuing of a personal injuries summons through the Central Office of the High Court.
220. In summary, I have sought, within the limitations and parameters of these three jurisdictional applications, to balance and assess the respective claims made on behalf of Messrs. Yasar and Talibov and Ms. Senen, on the one hand, against those of the CCC entities, on the other hand.
221. The plaintiffs, for example, argued that by reason of the alleged unique and comprehensive degree of control which Facebook/Meta exercised over the system of work implemented by the CCC entities, Facebook/Meta had a tortious liability to the plaintiffs where there was alleged negligence in respect of injuries suffered when moderating, by reference to Facebook/Meta's standards, content from Facebook/Meta's platform.
222. In contrast (and as referred to in greater detail earlier in this judgment) the CCC entities, in brief, refer to their position as the plaintiffs' employer and point to the range of their responsibilities for providing the system of work rather than Facebook/Meta. It was common case, for example, that the plaintiffs' contracts of employment were with the CCC entities and that there was no contractual nexus between the plaintiffs and Facebook/Meta.
223. Ultimately, when balancing these counter positions, and the claims made in the plaintiffs' personal injury summonses, through the prism of these three jurisdictional applications brought by the CCC entities (with their associated contextual limitations and constraints as established by the relevant jurisprudence), I have determined - having regard to the alleged tortious responsibility or duty of care owed by Facebook/Meta to the plaintiffs as the customer of the CCC entities compared to that owed in contract (or in tort) by CCC entities as the employer of the plaintiffs – such features would not suggest a divergence in the context of the same situation of fact and law such as to create a real risk of irreconcilable judgments in Ireland and Germany i.e. in their respective cases, Messrs. Yasar and Talibov and Ms. Senen have not demonstrated the requisite close connection and risk of irreconcilable judgments as per the requirements of Article 8(1) of Brussels I (recast).
224. In relation to the additional matters in Ms. Senen's case which raise questions of interpretation, in brief summary, Article 23 of Brussels I (recast) does not, in my view, disapply Article 25 in a case where jurisdiction has been claimed based on Article 8(1) of Brussels I (recast).
225. In brief, in relation to the additional matters in Mr. Talibov's case, I consider that the application to PIAB in Mr. Talibov's case did not mean that the Irish Court was first seised of the matter as that term is understood in Article 29 of Brussels I (recast).
226. Subject to hearing from the parties, I propose to make the following three separate orders in the Yasar, Talibov and Senen cases as per paragraph (2) of the respective Notices of Motion in those cases:
(i) An Order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) that the High Court in Ireland does not have jurisdiction to hear and determine, pursuant to the terms of Article 8(1) of Brussels I (recast), the claims of Ugur Yasar (plaintiff) against CCC Essen Digital GMBH (defendant) in the proceedings bearing Record Number 2022/650P;
(ii) An Order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) that the High Court in Ireland does not have jurisdiction to hear and determine, pursuant to the terms of Article 8(1) of Brussels I (recast), the claims of Abuzar Talibov (plaintiff) against CCC Essen Digital GMBH (defendant) in the proceedings bearing Record Number 2022/4639P;
(iii) An Order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) that the High Court in Ireland does not have jurisdiction to hear and determine, pursuant to the terms of Article 8(1) of Brussels I (recast), the claims of Kyra Senen (plaintiff) against CCC Barcelona Digital Services S.L.U (defendant) in the proceedings bearing Record Number 2022/170P.
227. I shall put the matter in before me on the day of Wednesday 30th April 2025 at 10:00 to discuss the terms of the final orders in the three cases, the question of costs and any further consequential or ancillary matters which arise.
Appearances:
228. John Gordon SC, Robert Fitzpatrick SC and Ben Clarke BL appeared for the Plaintiffs in all three cases, instructed by Coleman Legal LLP.
229. Eoin McCullough SC and Hayley O'Donnell BL appeared for the Defendants in all three cases instructed by Arthur Cox LLP.
CONLETH BRADLEY
11th APRIL 2025
[1] Also referred to as "the CCC entities".
[2] Also referred to as "Yasar", "Talibov" and "Senen".
[3] Letter dated 26th February 2024 from Arthur Cox to Coleman Legal LLP.
[4] Clause 22 of Mr. Yasar's contract with CCC Essen, which imposes a contractual time limit on making claims in clause 22 of the contract, whilst disputed between the parties, is not a matter which arises for determination in this 'jurisdiction' application.
[5] Article 7(1) of Brussels I (recast).
[6] Article 7(2) of Brussels I (recast).
[7] Article 8(2) of the Brussels I (recast) provides that a person domiciled in a Member State may also be sued as a third party in the court seised of the original proceedings.
[8] Underlining added in this judgment.
[9] Underlining added.
[10] Handbridge Ltd v British Aerospace Communications Ltd [1993] 3 I.R. 342.
[11] See Trafalgar Developments Ltd & Ors v Mazepin & Ors [2022] IEHC 167 per Barniville J. (as he then was) at paragraphs 336, 357-373; Kolassa v Barclays Bank plc, Case C-375/13, ECLI:EU:C:2015:37.
[12] Emphasis added in this judgment.
[13] Emphasis added in this judgment.
[14] By reference to Case C-98/06 Freeport plc v Arnoldsson ECLI:EU:C:2007:595 at paragraph 41 and Case C-145/10 Painer v Standard VerlagsGmbH & Ors ECLI:EU:C:2011:798 at paragraph 83.
[15] See Case C-539/03 Roche Nederland and Others [2006] ECR I-6535, at paragraph 26; Freeport, at paragraph 40; and Painer, at paragraph 79.
[16] I note, after the hearing of these matters, that this extract was applied in the context Article 8(1) of Brussels I (recast) by the Court of Justice in Athenian Brewery SA and Heneken, C-393/23, ECLI:EU:C:2025:85, at paragraph 22. This concerned a request for a preliminary ruling pursuant to Article 267 TFEU, which received from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) in the court's registry on 28th June 2023. The Opinion of Advocate General Kokott was delivered on 26th September 2024. The judgment of the Court was delivered on 13th February 2025.
[17] Paragraph 33(c) of the Affidavit of Dianne Treanor sworn on 15th May 2024.
[18] Paragraph 34 of the Affidavit of Dianne Treanor sworn on 15th May 2024.
[19] Emphasis and underlining added.
[20] Underlining added.
[21] Article 26(1) provides: "Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 24."
Article 26(2) provides: "In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the defendant, the court shall, before assuming jurisdiction under paragraph 1, ensure that the defendant is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance."
[22] Underlining added.
[23] See also Molloy v Reid [2014] IESC 4; [2014] 1 I.R. 343 per Clarke J. at section 5 'Discussion'.