Opinion of Advocate General Kokott delivered on 26 September 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0393
• ECLI: ECLI:EU:C:2024:798
• Date: 26 September 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 26 September 2024 (1)

Case C‑393/23

Athenian Brewery SA,

Heineken NV

v

Macedonian Thrace Brewery SA

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))

( Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Jurisdiction in civil and commercial matters – Regulation (EU) No 1215/2012 – Special grounds of jurisdiction – Article 8(1) – Multiple defendants – Close connection – Article 102 TFEU – Concept of an undertaking – Parent company and subsidiary – Infringement by the subsidiary – Presumption of a decisive influence on the part of the parent company – Joint and several liability – Decision of a national competition authority – Follow-on actions for damages )

I. Introduction

1. Can a person injured by an infringement of the competition rules sue the company which committed that infringement at the seat of its parent company in another Member State? That, in essence, is the question underlying the present request for a preliminary ruling.

2. The request gives the Court the opportunity to further develop its case-law on the scope of the special ground of jurisdiction based on a factual connection, provided for in Article 8(1) of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’), (2) in the context of actions for damages for infringements of EU competition law (private enforcement). In the judgment in CDC Hydrogen Peroxide, (3) the Court has already held that that special ground of jurisdiction allows multiple participants in a cartel contrary to Article 101 TFEU to be sued in the place where one of them is domiciled, if their participation has previously been established in a binding European Commission decision (‘follow-on’ actions for damages).

3. By contrast, this case is concerned with whether a (subsidiary) company which has been found by decision of a national competition authority to have abused its dominant position within the meaning of Article 102 TFEU can be sued together with its parent company at the latter’s seat, which is located in a Member State (in this instance, the Netherlands) other than that of the subsidiary (in this instance, Greece).

4. In that context, the referring court wishes to know to what extent the case-law on the concept of an undertaking for the purposes of Articles 101 and 102 TFEU and on the attribution of liability within an economic unit has an impact on the allocation of jurisdiction in accordance with Article 8(1) of the Brussels 1a Regulation. In that case-law, the Court has recognised a rebuttable presumption that a parent company exercises decisive influence on the economic activity of the subsidiary where it holds (almost) 100% of the shares in the capital of that subsidiary (‘the presumption of control’), with the result that an infringement by the latter may be imputed to the former and the former may be held jointly and severally liable for that infringement. (4)

II. Legal framework

A. Brussels Ia Regulation

5. Recitals 15, 16 and 21 of the Brussels Ia Regulation read:

‘(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.

…

(21) 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’.

6. Article 4(1) of the Brussels Ia Regulation reads:

‘1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

7. Article 5(1) of the Brussels Ia Regulation reads:

‘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 Sections 2 to 7 of this Chapter.’

8. Article 8(1) of the Brussels Ia Regulation governs a special ground of international jurisdiction:

‘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 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;

…’

B. Regulation No 1/2003

9.Article 16(1) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] reads: (5)

‘When national courts rule on agreements, decisions or practices under Article 81 or Article 82 of the Treaty which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission. They must also avoid giving decisions which would conflict with a decision contemplated by the Commission in proceedings it has initiated. To that effect, the national court may assess whether it is necessary to stay its proceedings. This obligation is without prejudice to the rights and obligations under Article 234 of the Treaty.’

C. Directive 2014/104

10.Article 2(2) and (3) of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (6) defines the terms ‘infringer’ and ‘national competition law’ as follows:

‘For the purposes of this Directive, the following definitions apply:

…

(2) “infringer” means an undertaking or association of undertakings which has committed an infringement of competition law;

(3) “national competition law” means provisions of national law that predominantly pursue the same objective as Articles 101 and 102 TFEU and that are applied to the same case and in parallel to Union competition law pursuant to Article 3(1) of Regulation (EC) No 1/2003, excluding provisions of national law which impose criminal penalties on natural persons, except to the extent that such criminal penalties are the means whereby competition rules applying to undertakings are enforced;

…’

11.Article 3(1) of Directive 2014/104 concerns the right to full compensation:

‘Member States shall ensure that any natural or legal person who has suffered harm caused by an infringement of competition law is able to claim and to obtain full compensation for that harm.’

12.Article 9 of Directive 2014/104 concerns the effect of decisions of national competition authorities:

‘1. Member States shall ensure that an infringement of competition law found by a final decision of a national competition authority or by a review court is deemed to be irrefutably established for the purposes of an action for damages brought before their national courts under Article 101 or 102 TFEU or under national competition law.

2. Member States shall ensure that where a final decision referred to in paragraph 1 is taken in another Member State, that final decision may, in accordance with national law, be presented before their national courts as at least prima facie evidence that an infringement of competition law has occurred and, as appropriate, may be assessed along with any other evidence adduced by the parties.

3. This Article is without prejudice to the rights and obligations of national courts under Article 267 TFEU.’

III. Facts and request for a preliminary ruling

13. The main proceedings concern a dispute between, on the one hand, Macedonian Thrace Brewery SA (‘MTB’), and, on the other hand, Athenian Brewery SA (‘AB’) and its (great-)grandparent company Heineken NV (‘Heineken’). Heineken has its registered office in the Netherlands, while AB has its registered office in Greece. Nevertheless, MTB wishes to hold both AB and Heineken jointly and severally liable before the Netherlands courts for the damage which it claims to have suffered as a result of an infringement of, inter alia, Article 102 TFEU committed by AB on the Greek beer market.

14. MTB is a brewery established in Greece and operating on the Greek beer market. AB is part of the Heineken group and also operates in Greece. Heineken sets the strategy and objectives of the Heineken group but does not itself carry on any operational activities in Greece. Heineken indirectly held approximately 98.8% of the shares in the capital of AB during the period relevant to these proceedings.

15. By decision of 19 September 2014, the Greek competition authority found that AB had abused its dominant position on the Greek beer market during the period from September 1998...