Objective Territorial Principle or Effects Doctrine? Jurisdiction and ...

In.Law | 6 (2006) | 293
was not under French jurisdiction, because the auction service of Yahoo.com was
organized and maintained in the United States, and Yahoo! Inc. had not carried
out any act in France. 43 This was a position taken in the light of the following
jurisdictional clause of the French Penal Code. “French Criminal law is applicable
to all offences committed within the territory of the French Republic. An offence
is deemed to have been committed within the territory of the French Republic
where one of its constituent elements was committed within that territory.” 44 In the
light of this provision, the Yahoo! side specifically contended that all constituent
elements of the alleged offences were committed outside France. 45 However, the
Tribunal de Grande Instance considered that since the messages or the content of
the site were made accessible in the French territory through the internet, there
was room to examine the constituent elements in detail in order to determine the
place of the offence. 46 This examination led the Tribunal de Grande Instance to the
conclusion that the offence in question had not materialized exclusively abroad as
the Yahoo! side contended, but had materialized equally in the French territory. 47
In the jurisdictional phase of the case, the Cour d’Appel upheld both the reasoning
and the conclusion by the Tribunal de Grande Instance. 48
3.2. Töben case.
The Töben case in Germany, especially the different appreciations by the
lower court of Mannheim 49 and the Federal Court of Justice 50 concerning
Yahoo! (I et II) et Al Manar: l’approche universaliste confirmée deux fois, Juriscom.net, http://www.
juriscom.net (17 mai 2005) (last visited on 8 November 2006).
43 Yahoo! Auction cases (2a) and (2b), supra note 42.
44 French Penal Code, Article 113–2, see supra note 34 for the translation. How broad this
basis of jurisdiction can be in the internet context is discussed in Pierre Sirinelli, L’adéquation entre
le village virtuel et la création normative - Remise en cause du rôle de l’Etat?, in Internet: Which Court
Decides? Which Law Applies? Quel tribunal décide? Quel droit s’applique? (Katharina Boele-Woelki &
Catherine Kessedjian eds. 1998), p. 11.
45 Yahoo! Auction cases (2a), supra note 42, at II.1.
46 Yahoo! Auction case (2a), supra note 42.
47 See Yahoo! Auction case (2a), supra note 42, at II.2.a.
48 Yahoo! Auction case (2b), supra note 42.
49 LG Mannheim, Urt. v. 10. 11. 1999 – 5KLs 503 Js 9551/99 [hereinafter referred to as the
Töben case (LG)].
50 Bundesgerichtshof [BGH] [Federal Court of Justice], Urt. v. 12. 12. 2000 – 1 StR 184/00
(LG Mannheim), NJW 54(8), pp. 624–628 (2001) [hereinafter referred to as the Töben case
(BGH)].