ECJ: Max Schrems can bring individual action against Facebook in Austria

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However, he cannot bring proceedings on behalf of seven other users in Austria, Germany and India who assigned him their claims for the purpose of the legal action.

Mr Schrems, who is resident in Austria, brought legal proceedings against Facebook Ireland before the Austrian courts. He claims that Facebook has infringed several data protection provisions in relation to his private Facebook account and the accounts of the seven others.

Mr Schrems seeks, inter alia, a declaration from the Austrian courts that certain contractual terms are invalid and an order requiring Facebook both to refrain from using the data in question for its own purposes or the purposes of third parties and to pay damages.

Facebook took the view that the Austrian courts do not have international jurisdiction, and that Mr Schrems cannot rely on the rule of EU law that allows consumers to sue a foreign contracting partner in their own place of domicile (consumer forum).

Facebook argued that Mr Schrems, by also using Facebook for professional purposes, cannot be regarded as a consumer. So far as the assigned claims are concerned, Facebook submits the consumer forum is not applicable since jurisdiction is not transferable.

The Supreme Court of Austria asked the ECJ to clarify the conditions under which the consumer forum may be invoked.

By today’s judgment, the ECJ replies that the activities of publishing books, giving lectures, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement in judicial proceedings do not entail the loss of a private Facebook account user’s status as a “consumer”.

However, the consumer forum cannot be invoked in proceedings brought by a consumer with a view to asserting, in the courts of the place where he is domiciled, not only his own claims but also claims assigned by other consumers domiciled in the same member state, in other member states or in non-member countries.

So far as the status of consumer is concerned, the ECJ points out that the consumer forum applies, in principle, only where the contract between the parties has been concluded for the purpose of a use of the relevant goods or services that is other than a trade or professional use. Therefore, a person bringing legal proceedings who uses digital social network services may rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.

Nonetheless, given that the notion of a “consumer” is defined by contrast to that of an “economic operator” and that it is distinct from the knowledge and information that the person concerned actually possesses, neither the expertise which that person may acquire in the field covered by those services, nor his assurances given for the purposes of representing the rights and interests of the users of those services, can deprive him of the status of a “consumer”.

As far as assigned claims are concerned, the ECJ notes that the consumer forum was established in order to protect the consumer as a party to the contract in question. A consumer is therefore protected only in so far as he is, in his personal capacity, the applicant or defendant in proceedings. Consequently, an applicant who is not himself a party to the consumer contract in question cannot enjoy the benefit of the jurisdiction relating to consumer contracts. The same also applies in regard to a consumer to whom the claims of other consumers have been assigned.