This article analyses the recent High Court decision in L’Oréal v eBay, which is part of a Europe-wide string of cases initiated by L’Oréal against the online auction portal. The article focusses on the contentious questions of law which Mr Justice Arnold has referred to the European Court of Justice (ECJ) for clarification. His judgment makes several references to German cases. This article takes up this approach and compares the High Court’s judgment with the relevant German case law. The findings reveal some considerable differences between the two EU Member States. It will be argued that these deviations in the interpretation of the Directives alone underline how necessary the substantial referrals to the ECJ are to achieve consistency and clarity at the European level. The article will place the discussions about eBay’s liability for third party auctions into the wider debate about Internet intermediary liability at the European level.
