Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Evonik Degussa GmbH and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2014:2443
• Docket Number: C-352/13
• Date: 11 December 2014
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 11 December 2014 ( 1 )

Case C‑352/13

Cartel Damage Claims (CDC) Hydrogen Peroxide SA

v

Evonik Degussa GmbH,

Akzo Nobel NV,

Solvay SA,

Kemira Oyj,

Arkema France SA,

FMC Foret SA,

Chemoxal SA,

Edison SpA

(Request for a preliminary ruling from the Landgericht Dortmund (Germany))

‛Judicial cooperation in civil and commercial matters — Regulation (EC) No 44/2001 — Special jurisdiction — Action for disclosure and damages against companies domiciled in different Member States and having participated in various places and at various times in a cartel agreement declared contrary to Article 81 EC (Article 101 TFEU) and Article 53 of the EEA Agreement — Article 6(1) — Jurisdiction in the case of multiple defendants — Risk of irreconcilable judgments — Withdrawal of the action against the only defendant domiciled in the Member State of the court seised — Maintenance of jurisdiction — Abuse of rights — Article 5(3) — Jurisdiction in matters relating to tort or delict — Definition of ‘the place where the harmful event occurred’ — Possible jurisdiction in respect of all co-defendants and for all damages claimed on the basis of every place in the territory of the Member States in which the unlawful agreement was entered into and put into effect — Article 23 — Clauses conferring jurisdiction — Arbitration agreements — Effect of the principle of the full effectiveness of the prohibition of agreements, decisions and concerted practices laid down in Union law’

I – Introduction

1. The reference for a preliminary ruling from the Landgericht Dortmund (Regional Court, Dortmund, Germany) concerns the interpretation of Articles 5(3) and 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 2 ) (the ‘Brussels I Regulation’) and, which is unusual, the interplay between those provisions and the guiding principles of European Union (‘EU’) competition law relating to Article 101 TFEU.

2. This request was made in the context of an action for disclosure and damages brought before the German court, by an applicant domiciled in Belgium, against several companies domiciled in various Member States — only one in Germany — which had participated in an infringement declared by a decision of the European Commission to be in breach of the prohibition of agreements, decisions and concerted practices in Article 81 EC (now Article 101 TFEU) and Article 53 of the Agreement on the European Economic Area of 2 May 1992. ( 3 )

3. The parties disagreeing as to the international jurisdiction of the referring court, the latter seeks the Court’s interpretation on three main points.

4. In the first place, the referring court questions the applicability, in a dispute such as that before it, of Article 6(1) of the Brussels I Regulation, which authorises an extension of the jurisdiction of the court seised so that it may also deliver judgments in actions relating to defendants other than the defendant domiciled within its jurisdiction, in order to avoid irreconcilable judgments. In addition, those issues are raised in the particular case in which, as here, the applicant has withdrawn its action against the sole co-defendant domiciled in the Member State of the court seised, which can be regarded as the ‘anchor defendant’ in that it alone can provide grounds for the court’s jurisdiction.

5. In the second place, in terms of jurisdiction in matters of tort or delict falling within Article 5(3) of the Brussels I Regulation, the Court has been asked whether the ‘place where the harmful event occurred’ within the meaning of that provision must be interpreted as allowing that jurisdiction to apply with respect to all the defendants in respect of all the alleged damage, in every one of the numerous places in the Member States in which the unlawful cartel agreement was entered into and/or put into effect and in which, according to the applicant, purchasers’ freedom of choice was thereby restricted.

6. In the third place, the referring court appears to start from the premise that some of the clauses conferring jurisdiction, which may fall under Article 23 of the Brussels I Regulation and/or the arbitration agreements invoked by the defendants in the main proceedings, cover the claims for damages made in this case. The referring court has asked the Court to state whether, in the case in point, the principle of effective implementation of the prohibition of agreements, decisions and concerted practices set out in Article 101 TFEU can preclude those clauses being invoked against the claimant for damages when the action has been brought before one of the courts having jurisdiction under Article 5(3) and/or Article 6(1) of the Brussels I Regulation.

7. I would emphasise that this case is the first in which the Court has been asked to adjudicate directly on the interaction between, on the one hand, provisions of primary law guaranteeing freedom of competition within the European Union and, on the other, provisions of EU private international law relating to jurisdiction in civil and commercial matters, in a dispute characterised by a far-reaching cartel agreement which has myriad participants and injured parties and has distorted competition throughout the internal market.

8. First of all, I must point out that it appears to me that the Brussels I Regulation, the aim of which is to create a system of rules of jurisdiction for the Union in respect of cross-border disputes in civil and commercial matters, is not fully geared towards ensuring effective private implementation of the Union’s competition law (or ‘private enforcement’, as it is usually called in this field) ( 4 ) in circumstances such as those in this case.

9. The application of certain provisions of that regulation is likely to lead to a territorial division of jurisdiction between the courts of the Member States which might, on the one hand, be inadequate from the point of view of the geographical scope of EU competition law or, on the other hand, make it more difficult for persons adversely affected by unlawful restrictions of competition to seek and obtain full reparation for the damage that they have suffered. It seems to me, therefore, possible that the authors of such restrictions could use those provisions of international private law to bring about a situation in which the civil-law consequences of a single, serious infringement of Union competition rules are to be determined in the context of a series of actions scattered across the various Member States.

10. The general conclusion that I shall draw from this request for interpretation is that, de lege ferenda, because of the particular repercussions which cross-border anti-competitive practices are likely to have in terms of judicial cooperation in civil matters, especially when they are complex, as they are in the main proceedings, it would be advisable for the EU legislature to envisage incorporating in the Brussels I Regulation a rule of jurisdiction apt to cover such practices, ( 5 ) on the lines of the conflict-of-laws provision which applies specifically to obligations deriving from acts restrictive of competition under the regulation usually known as ‘Rome II’. ( 6 )

II – Legal context

11. Recitals 11, 12, 14 and 15 in the preamble to the Brussels I Regulation state: ‘11. The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking 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. 12. In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice. … 14. The 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, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation. 15. 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 two Member States. …’

12. Article 1(2)(d) of the Brussels I Regulation excludes arbitration from the scope of the regulation.

13. Chapter II of the regulation lays down a series of rules concerning jurisdiction in civil and commercial matters. Article 2(1) of the regulation lays down the principle 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’.

14. Article 5(3) of that regulation, which is part of Section 2 of Chapter II, entitled ‘Special jurisdiction’, provides that ‘a person domiciled in a Member State may, in another Member State, be sued … in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

15. Article 6(1) in that Section adds that ‘[a] person domiciled in a Member State may also be sued … where he...