Opinion of the Advocate General — ECLI:EU:C:2025:243
Date: 2025-04-03
Language of the case: Dutch

Summary C-672/23 – 1 
Case C-672/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
13 November 2023 
Referring court:  
Gerechtshof Amsterdam (Netherlands) 
Date of the decision to refer:  
19 September 2023 
Applicants:  
Electricity & Water Authority of the Government of Bahrain 
GCC Interconnection Authority 
Kuwait Ministry of Electricity and Water 
Oman Electricity Transmission Company SAOC 
Defendants:  
Prysmian Netherlands BV 
Draka Holding BV 
Prysmian Cavi e Sistemi Srl 
Pirelli & C. SpA 
Prysmian SpA 
The Goldman Sachs Group Inc. 
ANN BV 
ABB Holdings BV 
ABB AB 
ABB Ltd 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-672/23 
 
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Nexans Nederland BV 
Nexans Cabling Solutions BV 
Nexans Participations SA 
Nexans SA 
Nexans France SAS 
  
Subject matter of the main proceedings 
Appeal against a judgment of the rechtbank Amsterdam (District Court, 
Amsterdam) in which that court declined jurisdiction to hear claims against the 
parties based outside the Netherlands in a cartel damages case. 
Subject matter and legal basis of the request 
Interpretation of Article 8(1) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters. 
Questions referred for a preliminary ruling 
Question la. 
Is there a close connection within the meaning of Article 8(1) of the Brussels I bis 
Regulation between: 
i) on the one hand, a claim against a lead defendant (also known as: anchor 
defendant) that is not an addressee of a Commission cartel decision but, as an 
entity alleged to belong to the undertaking within the meaning of European 
competition law (the ‘Undertaking’), is held liable downstream for the established 
infringement of the prohibition on cartels under EU law and, 
ii) on the other hand, a claim against: 
(A) a co-defendant who is an addressee of that decision, and/or 
(B) a co-defendant who is not an addressee of the decision in respect of which it 
is alleged that, as a legal entity, it belongs to an Undertaking which has been held 
publicly liable in the decision for the infringement of the prohibition on cartels 
under EU law? 
In that regard, does it matter: 
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(a) whether the anchor defendant being held liable downstream merely held and 
managed shares during the cartel period; 
(b) – if Question 4a is answered in the affirmative – whether the anchor 
defendant being held liable downstream was involved in producing, distributing, 
selling and/or supplying cartelised products and/or providing cartelised services; 
(c) whether the co-defendant who is an addressee of the decision has been 
designated in the order as 
(i) an actual cartel participant – in the sense that it actually participated in the 
infringing agreement(s) and/or concerted practice(s) found or 
(ii) as a legal entity forming part of the Undertaking which has been held 
publicly liable for the infringement of the prohibition on cartels under EU law; 
(d) whether the co-defendant who is not an addressee of the decision actually 
produced, distributed, sold and/or supplied cartelised products and/or services; 
(e) whether or not the anchor defendant and the co-defendant belong to the 
same Undertaking, 
(f) the plaintiffs have directly or indirectly purchased or received products 
and/or services from the anchor defendant and/or the co-defendant? 
Question 1b. 
Is it relevant to the answer to Question 1a whether or not it is foreseeable that the 
relevant co-defendant will be sued in the court of that anchor defendant? If so, is 
that foreseeability a separate criterion when applying Article 8(1) of the Brussels I 
bis Regulation? Is that foreseeability given in principle in the light of the Sumal 
judgment of 6 October 2021 (C-882/19, EU:C:2021:800)? To what extent do the 
circumstances mentioned in Question la(a) to (f) above make it foreseeable here 
that the co-defendant would be sued in the court of the anchor defendant? 
Question 2. 
In determining jurisdiction, should consideration be given also to the admissibility 
of the claim against the anchor defendant? If so, is it sufficient for that assessment 
that it cannot be excluded in advance that the claim will be upheld? 
Question 3a. 
Does the right under EU law of any person to damages following an established 
breach of the prohibition on cartels under EU law include the right to claim 
damages suffered outside the EEA? 
Question 3b. 
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Must – or can – the presumption accepted in competition law of decisive influence 
by the (fined) parent companies over the economic activity of the subsidiaries (the 
‘Akzo presumption’) be applied in (civil) cartel damages cases? 
Question 3c. 
Does an intermediate holding company which merely manages and holds shares 
meet the second Sumal criterion (engagement in an economic activity which has a 
specific link to the subject matter of the infringement for which the parent 
company has been held responsible)? 
Question 4a. 
When applying Article 8(1) of the Brussels I bis Regulation, can different 
defendants domiciled in the same Member State be anchor defendants (together)? 
Question 4b. 
Does Article 8(1) of the Brussels I bis Regulation directly and immediately 
designate the relative competent court, overruling national law? 
Question 4c. 
If Question 4a is answered in the negative – such that only one defendant can be 
an anchor defendant – and Question 4b is answered in the affirmative – such that 
Article 8(1) of the Brussels I bis Regulation, overruling national law, directly 
designates the relative competent court: 
When applying Article 8(1) of the Brussels I bis Regulation, is there scope for 
internal reference to the court of the defendant’s domicile in the same Member 
State? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union (TFEU): Article 101 
Agreement on the European Economic Area (‘EEA Agreement’): Article 53 
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 
12 December 2012 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters (‘Brussels I bis Regulation’): 
Article 4(1), Article 6(1), Article 7(1), (2) and (3), Article 8(1), Article 11(1)(b) 
Provisions of national law relied on 
Code of Civil Procedure (Wetboek van burgerlijke rechtsvordering; ‘Rv’): 
Article 107, Article 110(1) and (3), Article 209, Article 612 
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Succinct presentation of the facts and procedure in the main proceedings 
1 This case concerns the determination of the joint and several liability of the 
defendants for the damage caused by a single and continuous infringement of the 
prohibition on cartels under EU law (Article 101 TFEU and Article 53 of the EEA 
Agreement) established by Commission Decision C(2014)2139 final of 2 April 
2014, AT.39610 – Power Cables (‘the decision’). The decision concerns a 
hardcore cartel involving underground and undersea power cables and ancillary 
products, works and services. The infringement found concerns the period from 
18 February 1999 to 29 January 2009. Among other things, the cartel made 
agreements on prices and distributed projects in the context of geographical 
market sharing, both within and outside the EU/EEA. 
2 The applicants in this case are referred to collectively as the EWGB et al. and 
individually as the EWGB, the GCC, the KMEW and OETC. The defendants are 
referred to collectively as Draka et al. The company ABB AB replaced a company 
of the same name, now called ABB Power Grids Sweden AB; the original 
defendant is referred to as ABB AB (old). Prysmian Netherlands is based in Delft, 
Draka Holding (‘Draka’) in Amsterdam, ABB and ABB Holdings in Rotterdam, 
and Nexans Netherlands and Nexans Cabling Solutions in Schiedam. The other 
defendants are based outside the Netherlands. 
3 The EWGB, the KMEW and OETS are national utility companies responsible for 
the development, operation and maintenance of high-voltage grids in Bahrain, 
Kuwait and Oman respectively. The GCC owns and operates a connection 
between the national electricity grids of the Gulf Cooperation Council member 
countries (United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar and 
Kuwait). 
4 The EWGB et al. are seeking a declaration that Draka et al. are jointly and 
severally liable to them in tort on account of their participation in the cartel. They 
also claim that Draka et al. should be ordered jointly and severally to pay 
damages, the amount of which will be determined in separate follow-up 
proceedings. The damage in question was suffered outside the EEA. The EWGB 
et al. hold Draka et al. liable for it as legal entities which, according to the EWGB 
et al., are among the undertakings within the meaning of EU competition law 
which committed the infringement of the prohibition on cartels under EU law 
established in the decision. In addition, they have instituted proceedings against 
Draka and Prysmian Netherlands as universal successors in title to Prysmian 
Cable Holding B.V. and Prysmian Cables and Systems B.V. 
5 The decision finds that Prysmian Cavi e Sistemi, ABB AB (old) and Nexans 
France participated in the cartel. Prysmian SpA, Pirelli, Goldman Sachs, ABB 
Ltd. and Nexans SA were held liable upstream in the decision as (indirect) parent 
companies of the aforementioned cartel participants. Nexans Participations is not 
an addressee of the decision. The Netherlands-based companies Prysmian 
Netherlands, Draka, ABB B.V., ABB Holdings, Nexans Nederland and Nexans 
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Cabling Solutions are also not addressees of the decision. Those Netherlands 
defendants are all directly or indirectly wholly owned subsidiaries of Prysmian 
Cavi e Sistemi, ABB Ltd and Nexans S.A respectively. 
6 Prysmian Cavi e Sistemi is a wholly owned subsidiary of Prysmian SpA. Until 
29 July 2005, Pirelli was the ultimate holding company of the Prysmian Group; 
since that date, Prysmian SpA has been the ultimate holding company. Goldman 
Sachs was the indirect parent company of Prysmian SpA from 29 July 2005 to 
28 January 2009. During part of the cartel period – from 27 October 1999 to 
26 April 2006 – Prysmian Cable Holding was an (intermediate) holding company 
between its wholly owned parent company Prysmian Cavi e Sistemi and its 
wholly owned subsidiary Prysmian Cables and Systems. During the cartel period, 
Prysmian Cables and Systems was engaged in the manufacture, export and 
distribution of cables. 
7 The EWGB et al. hold Draka (as the legal successor to Prysmian Cable Holding) 
liable downstream, as the ‘link’ between its parent company Prysmian Cavi e 
Sistemi and its subsidiary Prysmian Cables and Systems (now: Prysmian 
Netherlands). According to the EWGB et al., Prysmian Cables and Systems is also 
liable downstream because it sold cartelised products. 
8 ABB AB (old) was a subsidiary of ABB Ltd. ABB AB assumed the potential 
liability of ABB AB (old) for what is being claimed in the main action. ABB B.V. 
is a wholly owned subsidiary of ABB Holdings. ABB B.V. engages in sales and 
support activities for ABB’s projects in Benelux. ABB Holdings was a holding 
company which held and managed the shares of ABB B.V. 
9 Nexans France is an (indirect) subsidiary of Nexans SA, the (ultimate) holding 
company of the Nexans Group. Nexans Netherlands is a wholly owned subsidiary 
of Nexans Participations. It was and is engaged in the wholesale of cables and 
wires, among other things. Nexans Cabling Solutions is a wholly owned 
subsidiary of Nexans Nederland. Among other things, it is engaged in offering 
network cabling systems and solutions. 
10 In the contested judgment, the rechtbank Amsterdam (District Court, Amsterdam) 
declined to take cognisance of the claims against the defendants established 
outside the Netherlands. The rechtbank considers itself to have jurisdiction only to 
hear claims against the Netherlands-based defendants. The rechtbank held, inter 
alia, that it cannot be assumed that there is such a close connection between the 
claims against the defendants established in the Netherlands and the defendants 
established outside the Netherlands that the proper administration of justice calls 
for them to be tried by the same court in order to avoid irreconcilable decisions. 
The EWGB et al. are appealing that decision. 
11 Jurisdiction is a matter of public policy under Netherlands law and is therefore 
reviewed ex officio, including on appeal. Moreover, the international jurisdiction 
of the rechtbank Amsterdam was challenged by the defendants based outside the 
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Netherlands in an incidental claim. The debate between the parties thus far has 
concerned only the jurisdiction of the rechtbank Amsterdam to hear claims against 
the defendants based outside the Netherlands. 
12 Relative jurisdiction, that is to say the question of which court (of equal level) 
within the Netherlands has jurisdiction to hear the claim, is not a matter of public 
policy. Relative jurisdiction is in principle determined by the domicile of the 
defendant. Of the Netherlands defendants, only Draka is domiciled in the district 
of Amsterdam. The rechtbank Amsterdam assumed relative jurisdiction under 
Article 107 Rv. This provides that, where a court has jurisdiction over one of the 
defendants jointly involved in the proceedings, that court is to have jurisdiction 
also over the other defendants, provided that there is such a connection between 
the claims against the various defendants that reasons of expediency justify joint 
proceedings. In addition, the relevant Netherlands-based defendants did not 
challenge the relative jurisdiction of the rechtbank. No appeal is permitted against 
the decision on relative jurisdiction (Article 110(3) Rv). The Gerechtshof (Court 
of Appeal) must therefore assume, under Netherlands procedural law, that the 
rechtbank Amsterdam has relative jurisdiction over all of the defendants that are 
domiciled in the Netherlands. 
13 The admissibility of the claims in the main proceedings requires, first, that the 
liability alleged of each of the defendants by the EWGB et al. be established. The 
EWGB et al. intend for the damages to be assessed in damages proceedings 
(Article 612 Rv). Those are customary, but not mandatory, separate follow-up 
proceedings under Netherlands law. For referral of the case to the damages 
assessment procedure in order to determine the damage in those follow-up 
proceedings, it is sufficient that it is plausible that the EWGB et al. have suffered 
damage. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The questions of interpretation are linked to the specific nature of this case, a 
cartel damages case following a breach of the EU law prohibition on cartels found 
by the Commission. A number of the intended questions are also at play in other 
cartel damages cases pending in the Netherlands, for example in another cartel 
damages case in which the gerechtshof asks today partly the same questions, and 
in a case in which the Hoge Raad (Supreme Court) asked questions on 26 June 
2023 (C-393/23, Athenian Brewery and Heineken). 
Question 1a and 1b 
15 The gerechtshof is confronted in this case with different views as to whether a 
close connection within the meaning of Article 8(1) of the Brussels I bis 
Regulation exists or can exist between, on the one hand, the claim against Draka 
and/or the other defendants domiciled in the Netherlands and, on the other hand, 
each of the claims against the foreign defendants and whether it is relevant that it 
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is foreseeable that the defendant in question will be sued before the rechtbank 
Amsterdam, the court of the anchor defendant Draka. 
16 Under the first view, espoused by the EWGB et al., the existence of the close 
connection follows from the fact that the claims against Draka (and possibly those 
against the other defendants established in the Netherlands), on the one hand, and 
the claims against the foreign defendants, on the other, are based on joint and 
several liability for the same damage, all of them being brought before the courts 
in their capacity as entities which, according to the EWGB et al., belong to the 
undertakings found in the decision to be guilty of a single and continuous 
infringement of the EU law prohibition on cartels. This view rests on the objective 
of compensation, which is to ensure the effective application of the prohibition on 
cartels under EU law (see judgment of 6 October 2021, Sumal, C-882/19, 
EU:C:2021:800, paragraph 67; ‘the Sumal judgment’). 
17 This is contrasted with the view under which, in such a case, only an addressee of 
the decision or even only an entity which has actually committed competition 
infringements itself can act as an anchor defendant. Under this view, the upstream 
and/or downstream liability of entities belonging to the undertaking which were 
not themselves involved in the infringement does not justify such an entity (not 
named in the decision) being able to be an anchor defendant. The proper 
administration of justice would not be served by a wide group of potential anchor 
defendants. This would amount to an erosion of the main rule of Article 4(1) of 
the Brussels I bis Regulation and lead to unpredictable application of the 
jurisdiction rules and undesirable forum shopping since, in such a case, courts in 
(almost) all Member States may have jurisdiction. This is contrary to the 
requirement of foreseeability, the objective that jurisdiction rules should be highly 
predictable and the principle that special jurisdiction rules such as Article 8(1) of 
the Brussels I bis Regulation should be limited to a small number of narrowly 
construed and clearly defined cases. In particular, claims against an entity not 
named in the decision which is held liable downstream and against entities held 
liable purely upstream in the decision as a part of the undertaking are, under this 
view, too far away from each other to meet the requirement of a close connection, 
at least in the case of claims against entities not belonging to the same 
undertaking. This view argues that Article 8(1) of the Brussels I bis Regulation 
can create jurisdiction only if it is foreseeable to the defendants that claims against 
them may be brought before the court of the anchor defendant. This is not the case 
for parent and subsidiary entities from different undertakings which are far away 
from each other. 
18 In the opinion of the gerechtshof, the a priori exclusion of entities with which a 
close connection may exist and/or which may be anchor defendants is not 
consistent with the objective of effective enforcement of the prohibition on cartels 
under EU law. It is arguable that claims which are brought as a result of the same 
continuous infringement of the EU law prohibition on cartels against defendants 
who are directly identified by EU law as liable entities relate to the same situation 
in fact and in law, provided that it was foreseeable to those defendants that they 
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would be sued before the courts of the anchor defendant’s domicile. For 
foreseeability purposes, it may be relevant that infringement of the prohibition on 
cartels under EU law may lead to claims for damages by many claimants against 
many liable entities directly designated by EU law. However, the concrete facts 
and circumstances of a particular case might mean that the connection between the 
claim against the anchor defendant and the claim against a particular other 
defendant is so remote that the requisite close connection within the meaning of 
Article 8(1) of the Brussels I bis Regulation is lacking. In those cases, it cannot be 
maintained that there is a risk of irreconcilable judgments unless claims against 
different defendants are heard by the same court. Foreseeability thus acts as a 
corrective mechanism in the context of determining whether the same situation 
exists in fact and in law. This interpretation is in line with the judgment of 21 May 
2015, CDC Hydrogen Peroxide (C-352/13, EU:C:2015:335), is consistent with the 
purpose of Article 8(1) of the Brussels I bis Regulation (proper administration of 
justice), contributes to the efficient and effective enforcement of EU competition 
law and is consistent with the lack of hierarchy of claims and the absence of 
further requirements on the anchor defendant when applying Article 8(1) of the 
Brussels I bis Regulation. 
Question 2 
19 The gerechtshof is faced with two different views as to the relevance of the 
admissibility of the claims against the anchor defendant when applying 
Article 8(1) of the Brussels I bis Regulation, both of which are followed in 
Netherlands legal practice. 
20 Under one view, the admissibility of the claims must be assessed only in the main 
case. In this vision, however, the bringing of a claim against an anchor defendant 
that patently has no chance of success, against one’s better judgment, may 
constitute an abuse of right. 
21 Under the other view, when assessing international jurisdiction, it is necessary to 
check whether claims which are sufficiently substantiated in fact and in law have 
been brought, especially as regards the claim against the anchor defendant, and 
Article 8(1) of the Brussels I bis Regulation cannot be applied where there is 
insufficient substantiation. To that end, reference is made to the judgments of 
28 January 2015, Kolassa, C-375/13, EU:C:2015:37, paragraph 61, and of 16 June 
2016, Universal Music International Holding, C-12/15, EU:C:2016:449, 
paragraph 44. In those judgments, the Court considered that the determination of 
jurisdiction should not be limited to the applicant’s claims. Consideration must 
also be given to the information available on the legal relationship that actually 
exists between the parties and to the defendant’s claims. Under this view, 
Article 8(1) of the Brussels I bis Regulation can apply only if it is sufficiently 
plausible beforehand, i.e. without party debate on the merits, further factual 
examination or provision of evidence, that the claim against the anchor defendant 
is admissible. 
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22 There may be reasonable doubt as to which view is correct. Advocate General 
Mengozzi, in his Opinion of 24 May 2007 in Freeport, C-98/06, EU:C:2007:302, 
point 70, considered that the assessment of the risk of irreconcilable judgments 
may include an evaluation of the likelihood that the claim brought against the 
defendant who is domiciled in the forum Member State will succeed. That 
evaluation, however, according to Mengozzi, is of real practical relevance for the 
purpose of excluding the risk of irreconcilable judgments only if that claim proves 
to be manifestly inadmissible or unfounded in all respects. On the other hand, in 
its judgment of 13 July 2006 in Reisch Montage, C-103/05, EU:C:2006:471, 
paragraph 31, the Court held that, in the circumstances of that case, Article 6(1) of 
the Brussels I Regulation could be relied upon in the context of an action brought 
in a Member State against a defendant domiciled in that State and a co-defendant 
domiciled in another Member State even when that action was already regarded 
under a national provision as inadmissible from the time it was brought in relation 
to the first defendant. That does not alter the fact that the bringing of a claim 
against an anchor defendant that patently has no chance of success, against one’s 
better judgment, may constitute an abuse of right. 
Question 3a to 3c 
23 These questions are relevant only if the admissibility of the claim against the 
anchor defendant is relevant in the context of determining jurisdiction. If, when 
determining jurisdiction, only the bringing of a claim against an anchor defendant 
that patently has no chance of success can constitute an abuse of right and 
therefore result in a lack of jurisdiction, these questions – if there is no abuse – 
should be answered in the main case. 
Question 3a 
24 Underpinning the claims of the EGWB et al. is the view that, in circumstances 
such as those at issue here, the EU law right to damages arising from breaches of 
the prohibition on cartels under EU law may also be exercised in respect of 
damage suffered outside the EEA. This is in line with the principle that any person 
may claim compensation for damage suffered if there is a causal link between that 
damage and an infringement of the prohibition on cartels under EU law, where the 
injured party need not necessarily be active as a customer or supplier in the market 
concerned (see judgments of 13 July 2006, Manfredi, C-295/04, EU:C:2006:461, 
paragraphs 60 and 61; of 5 June 2014, KONE and Others, C-557/12, 
EU:C:2014:1317, paragraph 34, and of 12 December 2019, Otis Gesellschaft and 
Others, C-435/18, EU:C:2019:1069, paragraph 32). 
25 This is countered by the view that EU competition law is not relevant to damage 
suffered in markets outside the EEA as a result of conduct there, especially if that 
damage is suffered by entities established outside the EEA. 
26 There is reasonable doubt as to which view is correct. While the aforementioned 
judgment in Otis Gesellschaft and Others (paragraph 30) considered that all 
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damages causally related to an infringement of the prohibition on cartels under EU 
law should be eligible for compensation to ensure the effective application of that 
prohibition, the Court’s judgments thus far have dealt with damage suffered (at 
least also) in the EEA. It can be inferred from the judgment of 14 February 2012, 
Toshiba Corporation and Others, C-17/10, EU:C:2012:72, paragraph 67, that 
Article 101 TFEU does not apply to a cartel which merely has effects outside the 
territory of the Member States. The question is whether that means that, in the 
case of a competition agreement which has effects both in the territory of one or 
more Member States and in the territory of a third country, a right to damages can 
be derived from EU law in respect of the latter effects. 
27 In this case, it cannot be ruled out that the Commission’s decision concerns also 
conduct which may not have taken place in the territory of the EU/EEA, but 
whose anti-competitive effects may be or may have been noticeable on the 
EU/EEA market (see judgment of 24 October 2017, Intel v Commission, 
C-413/14 P, EU:C:2017:632, paragraph 45). Recital 681 of the decision in fact 
reads: ‘In so far as the activities of the cartel related to sales in countries that are 
not members of the Union or the EEA and had no impact on trade in the Union or 
the EEA, they are outside the scope of this Decision.’ 
Question 3b 
28 Question 3b deals with the ‘Akzo presumption’, the rebuttable presumption that a 
parent company which holds (almost) 100% of the capital of its subsidiary that 
has committed an infringement of EU competition law exercises decisive 
influence over the conduct of its subsidiary (see judgment of 10 September 2009, 
Akzo Nobel and Others v Commission, C-97/08 P, EU:C:2009:536, paragraph 60 
and the case-law cited). This presumption also applies where a parent company 
can exercise all the voting rights attaching to the shares in its subsidiary (see 
judgment of 27 January 2021, The Goldman Sachs Group v Commission, 
C-595/18 P, EU:C:2021:73, paragraph 35) and has also been applied in relation to 
a parent company with indirect control through an intermediate holding company 
(see judgment of the General Court of 27 September 2012, Shell Petroleum and 
Others v Commission, T-343/06, EU:T:2012:478, paragraph 52) and a parent 
company that is a non-operational holding company with no economic activity 
(see judgments of 20 January 2011, General Química and Others v Commission, 
C-90/09 P, EU:C:2011:21, paragraphs 86 to 88, and of 11 July 2013, Commission 
v Stichting Administratiekantoor Portielje, C-440/11 P, EU:C:2013:514, 
paragraphs 42 to 44). The Akzo presumption was developed in the context of the 
enforcement under public law of EU competition law. There may be reasonable 
doubt as to the application of the Akzo presumption in civil cartel damages cases. 
29 One approach emphasises that the concept of undertaking in competition law 
should be interpreted in the same way in public and private enforcement and that 
the considerations underlying the application of the Akzo presumption in 
enforcement under public law of EU competition law apply equally to 
enforcement under private law. 
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30 This is countered by a view in which the Akzo presumption is only a procedural 
presumption of evidence in favour of the Commission and national competition 
authorities in administrative law proceedings. According to this view, national 
rules of evidence and procedural law are not overruled by the Sumal judgment and 
the judgment of 14 March 2019, Skanska Industrial Solutions and Others, 
C-724/17, EU:C:2019:204, nor can it be inferred from those judgments that this 
procedural rule of administrative law is applicable one-to-one in civil liability 
proceedings. It is considered important in that regard that the Akzo presumption is 
not mentioned as an aspect of (civil law) attributability in paragraph 43 of the 
Sumal judgment. 
Question 3c 
31 Question 3c raises the issue of whether an intermediate holding company such as 
Draka, which merely manages and holds shares, meets the criterion set out in the 
Sumal judgment, paragraph 51, of engaging in an economic activity that has a 
‘concrete connection’ to the object of the infringement for which the parent 
company has been held liable. Here, too, the gerechtshof is confronted with 
different approaches. 
32 In one approach, this question should be answered in the affirmative, as the Sumal 
judgment (paragraph 52) seems to give scope for indirect involvement in the 
infringement of the prohibition on cartels under EU law. This view points out that 
such an intermediate holding company as a link facilitates and enables the 
economic activity and hence the cartel infringement. 
33 Under the other approach, this question must be answered in the negative, as the 
Sumal criteria require actual active involvement in the infringement of the 
prohibition on cartels under EU law, and the (mere) holding and management of 
shares cannot qualify as such. This view further raises the question of whether it 
matters for civil liability whether the intermediate holding company's subsidiary 
sold cartelised products to the EWGB et al. or whether it is sufficient that 
cartelised products were sold to whomever. 
Question 4a to 4c 
Question 4a 
34 According to the EWGB et al., for Article 8(1) of the Brussels I bis Regulation to 
be applicable, it is sufficient that the claims against the foreign defendants have a 
close connection, within the meaning of that provision, with one of the claims 
against the Netherlands defendants, even if that/those defendant(s) is/are 
domiciled in a district other than that of the court where the claim is brought This 
is countered by an approach in which only one defendant domiciled in the 
jurisdiction of the court before which the matter is brought can act as an anchor 
defendant. Both approaches can be found in Netherlands legal practice. 
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35 The gerechtshof notes that the text of Article 8(1) of the Brussels I bis Regulation 
seems to indicate that only one defendant can be an anchor defendant. If it is 
necessary for the claims against all foreign co-defendants to have the said close 
connection with the claim against Draka, that is a much stricter standard than if a 
connection with the claim against one of the other defendants domiciled in the 
Netherlands (but not within the jurisdiction of the rechtbank Amsterdam) is 
sufficient. As has been considered in paragraph 12 above, the gerechtshof in this 
case must assume in this case that it has jurisdiction over all defendants domiciled 
in the Netherlands. 
Question 4b 
36 Since it may be that Draka cannot be an anchor defendant, but one of the other 
Netherlands defendants can, it is important whether Article 8(1) of the Brussels I 
bis Regulation confers direct and possibly even exclusive, not only international 
but also relative jurisdiction, to the exclusion of the national rules of relative 
jurisdiction. The wording of Article 8(1) of the Brussels I bis Regulation does 
indeed suggest that. This dual function has already been adopted for Article 7(1) 
and (2) and Article 11(1)(b) of the Brussels I bis Regulation, which have similar 
wording to Article 8(1) of the Brussels I bis Regulation (see judgments of 15 July 
2012, Volvo and Others, C-30/20, paragraph 33; of 3 May 2007, Color Drack, 
C-386/05, EU:C:2007:262, paragraph 30, and of 30 June 2022, Allianz Elementar 
Versicherung, C-652/20, EU:C:2022:514). Question 4b seeks to put this beyond 
doubt, as Question 4c assumes this dual function. 
Question 4c 
37 Question 4c is asked in the event that not Draka but one of the other Netherlands 
defendants can be an anchor defendant. Indeed, if Question 4a is answered in the 
negative – such that only one defendant can be an anchor defendant – and 
Question 4b is answered in the affirmative – such that Article 8(1) of the Brussels 
I bis Regulation directly designates the court with relative jurisdiction – the 
question arises as to whether Article 8(1) of the Brussels I bis Regulation leaves 
room for referral to the court of another defendant’s domicile in the same Member 
State. In that situation (no close connection with the claim against the anchor 
defendant, but a close connection with a claim against another defendant in the 
same Member State), the case will have to be brought again before the court of the 
domicile of that other defendant within the same Member State without the 
possibility of internal referral. This leads to new proceedings, in which 
international jurisdiction will again have to be determined ex officio. The 
possibility of internal referral (from one Netherlands court to another, with the 
proceedings continuing as they are) serves procedural economy and efficiency. It 
therefore appears to the gerechtshof that an interpretation of Article 8(1) of the 
Brussels I bis Regulation which has scope for such an internal referral must be 
possible.