On 21 May 2015, the Court of Justice of the European Union (CJEU) handed down a preliminary ruling concerning the interpretation of Articles 5(3) and 6(1) of Regulation 44/2001 (Brussels I Regulation) in follow-on damages actions. The questions had been referred pursuant to Article 267 TFEU from a German court in proceedings between Cartel Damages Claims (CDC) Hydrogen Peroxide SA and Akzo Nobel AV (and others), which concerns an action for damages in relation to a hydrogen peroxide and sodium perborate cartel. The ruling addresses how Council Regulation (EC) 44/2001 (Brussels I Regulation) applies in the context of a damages action against the participants in an illegal cartel and the impact on jurisdiction where the anchor defendant to proceedings in one EU Member State is withdrawn from the claim and the other defendants are domiciled in different Member States.
The Brussels I Regulation sets out the rules governing the jurisdiction of courts in civil and commercial matters in EU Member States. The general rule for determining jurisdiction is that a person should be sued in the courts of the Member State in which they are domiciled. However, the Brussels I Regulation allows claimants to depart from this rule in certain circumstances. Article 5(3) provides that, in matters relating to tort, a person domiciled in one Member State may be sued in another Member State in the courts where the harmful event occurred. Further, Article 6(1) provides that, where a person is domiciled in a Member State and is one of a number of defendants, he may be sued in the courts of the place where any one of the defendants is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together. Article 23 provides that if the parties (at least one of whom is domiciled in a Member State) have agreed that a court of a Member State is to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court should have exclusive jurisdiction unless the parties have agreed otherwise.
The CJEU held that Article 6(1) can apply in the case of an action for damages brought jointly against undertakings which have participated in single or continuous infringement of Article 101 TFEU, which has been established by a decision of the European Commission. This is the case even where the applicant has withdrawn its action against the sole anchor defendant, unless it is found that, at the time the proceedings were instituted, the applicant and the anchor defendant had colluded to artificially fulfil, or prolong the fulfilment of the conditions for the application of Article 6(1).
The CJEU further held that Article 5(3) must be interpreted as meaning that an alleged victim of a cartel can choose to bring an action before the courts of the place where the cartel was definitively concluded, or the place in which one agreement in particular was concluded which is identifiable as the sole causal event giving rise to the loss allegedly suffered, or before the courts of the place where its own registered office is located.
Finally, the CJEU held that Article 23 must be interpreted as allowing, in cartel damages actions, account to be taken of jurisdiction clauses contained in contracts for the supply of goods, even if the effect is to derogate from the rules on international jurisdiction provided for in Article 5(3) and/or Article 6(1), provided that those clauses refer to disputes concerning liability incurred as a result of an infringement of competition law.
The CJEU’s preliminary ruling on the interpretation of these clauses will be of particular interest to the victims of European cartels, where the cartel participants may well be domiciled in several Member States and have participated at different times and in different places. The ruling will give claimants a certain amount of flexibility as to choice of forum for bringing an action for damages. The Brussels I Regulation was replaced by the Recast Brussels Regulation on 10 January 2015. Clauses 5(3) and 6(1) (now Articles 7(2) and 8(1)) have not been amended and the judgment will continue to be relevant to the Recast Brussels Regulation.