EuGH; 2022-12-22; C-98/22
Decision by national courts in the field of European Union law;Judgment;Summary — ECLI:EU:C:2022:1032
Date: 2022-12-22
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Judicial cooperation in civil matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany;France

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:  
14 February 2022 
Referring court:  
Cour d’appel de Paris (France) 
Date of the decision to refer:  
2 February 2022 
Appellant: 
Eurelec Trading SCRL 
Respondent:  
Ministre de l’Économie et des Finances 
Scabel SA 
Groupement d’Achat des Centres Édouard Leclerc (GALEC) 
Association des Centres distributeurs Édouard Leclerc (ACDLEC) 
  
Brief presentation of the facts and of the procedure in the main proceedings  
1 The dispute in the main proceedings is between the Ministre français de 
lʼÉconomie et des Finances (French Minister for Economic Affairs and Finance) 
and two Belgian companies: Eurelec, a Belgian company established in Brussels, 
which is a pricing and purchasing negotiation centre founded by the French 
Leclerc group and the German Rewe group, and Scabel, a Belgian company 
established in Brussels, which acts as an intermediary between Eurelec and the 
French and Portuguese regional purchasing centres of the Leclerc group. Two 
French undertakings are also parties to the dispute: the Leclerc groupʼ national 
purchasing centre which negotiates the annual framework contracts with the 
French suppliers (ʻGALECʼ) and the association of E Leclerc distribution centres 
(ʻthe ACDLECʼ). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-98/22 
 
2  
2 Following an investigation conducted between 2016 and 2018, the Minister for 
Economic Affairs and Finance (ʻthe Ministerʼ), suspected that potentially 
restrictive practices were being implemented in Belgium by Eurelec in respect of 
suppliers established in France. Eurelec, Scabel, GALEC and the ACDLEC deny 
the alleged practices. 
3 The Minister brought an action against those four companies before the tribunal 
de commerce de Paris (Commercial Court, Paris) seeking a declaration inter alia 
that the practices of those companies consisting in (i) requiring suppliers to accept 
that Belgian law applied to the contract concluded, with the aim of denying them 
the benefit of the public policy provisions laid down by the code de commerce 
français (French Commercial Code), inter alia those allowing for the contract to 
be freely negotiated on the basis of the supplier’s general terms and conditions of 
sale, and (ii) imposing on suppliers, by implementing organised and large-scale 
retaliatory measures, significant deflations of the previous year’s triple net price 
without anything in return constitute subjection to a significant imbalance in the 
parties’ rights and obligations.  
4 By judgment of 15 April 2021, the tribunal de commerce de Paris (Commercial 
Court, Paris) held that the plea of lack of jurisdiction raised by the companies was 
unfounded. It also disallowed their requests for a preliminary ruling on the 
interpretation 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 (OJ 2012 L 351, p. 1) 
(ʻthe Brussels Ia Regulationʼ). It declared that it had jurisdiction to rule on 
compliance with Article L442-6 (now L442-11) of the Commercial Code on 
French territory in connection with the dispute and requested the parties to attend 
a subsequent hearing for submissions on the merits. 
5 By documents of 18 and 21 May 2021, Scabel and Eurelec lodged an appeal 
against that judgment before the Cour d’appel de Paris (Court of Appeal, Paris). 
6 The Cour d’appel de Paris (Court of Appeal, Paris) (the referring court) is 
therefore called upon to determine whether the French courts have jurisdiction to 
hear an action brought by the French authorities against companies established in 
Belgium seeking an order recognising, penalising and putting an end to alleged 
restrictive practices in respect of suppliers established in France. 
Essential arguments of the parties in the main proceedings concerning the 
civil and commercial nature, within the meaning of the Brussels Ia 
Regulation, of the Minister’s action  
7 According to Eurelec, the nature and subject matter of the Minister’s action and 
the evidence he has used in support of that action, may remove these proceedings 
from the scope of the Brussels Ia Regulation. In that regard, it submits that, 
although classified as an overriding mandatory provision, a rule of national law 
EURELEC TRADING 
 
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applicable to the substance of the dispute cannot serve as a basis for the 
international jurisdiction of the French courts. 
8 Eurelec and Scabel, claiming that the concept of ʻcivil and commercial mattersʼ 
within the meaning of Article 1 of the Brussels Ia Regulation cannot be 
interpreted by reference to the internal law of the Member State, maintained that 
the Minister’s action, owing to its nature and subject matter, falls within the 
exercise of public powers characterised by the exercise of powers which are 
excessive in relation to the ordinary law rules applicable in relations between 
individuals, and that therefore the dispute does not concern civil and commercial 
matters. 
9 According to those companies, imposing a civil fine cannot be confused with the 
prerogative of individuals to claim damages for harm which they have suffered 
directly and the Minister uses evidence obtained through public powers, in this 
case visits and seizure operations in the premises of the ACDLEC and GALEC 
pursuant to Article L 450-4 of the Commercial Code, although the procedural 
powers offered by Article 145 of the Code of Civil Procedure to private persons 
cannot be equated to the powers of investigation enjoyed by the State authority. In 
that regard, they claim that any natural or legal person, even a public body, may 
act on the basis of Article 145 of the Code of Civil Procedure, which is not the 
case of Article L-450-4 of the Commercial Code. Moreover, opposing a measure 
of inquiry in futurum ordered on the basis of Article 145 of the Code of Civil 
Procedure does not constitute an offence, although any opposition to the visits and 
seizures of the direction générale de la concurrence, de la consummation et de la 
répression des frauds (Directorate General for Competition, Consumer Affairs and 
Prevention of Fraud) of the Ministry for Economic Affairs and Finances 
constitutes an offence of obstructing an investigation (Article L 540-8 of the 
Commercial Code). 
10 Eurelec also submits that, in a judgment of 6 July 2016, No 15-21.811, the Cour 
de cassation (Court of Cassation) recognises that the Minister’s action, by its very 
nature and subject matter, forms part of the Minister’s public powers. 
11 According to the Minister, his applications fall within the material scope of the 
Brussels Ia Regulation and there is neither a problem of interpretation nor a 
reasonable doubt justifying a question for a preliminary ruling, in the light of the 
replies provided by the judgment of 16 July 2020, Movic and Others (C-73/19, 
EU:C:2020:568); he considers that the advantage of such a reference has not been 
established since the alleged inapplicability of that regulation still does not give 
jurisdiction to the foreign court.  
12 The Minister claims that, as the Court states in the judgment of 16 July 2020, 
Movic and Others (C-73/19, EU:C:2020:568), ʻacting in the general interest 
should not be confused with the exercise of public powersʼ, that the provisions of 
Article L 442-6, 1, 2° of the Commercial Code are mandatory as regards the 
protection of the French economic policy and he intervenes in order to defend the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-98/22 
 
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general interest in order to obtain an order for a civil fine. According to the 
Minister, since the aim of his action is to defend the French economic policy, it is 
only natural for that action to be heard by the French court, as the Cour de 
cassation (Court of Cassation) stated in the judgment of 6 July 2016, cited above.  
13 As regards the use of its powers of inquiry, he considers it necessary to distinguish 
the inquiry stage from the judicial proceedings and maintains that the criterion for 
applicability of the Brussels Ia Regulation is the use made of that evidence and not 
the rules for collecting it. He relies in that regard on the Opinion of Advocate 
General Szpunar in Movic and Others (C-73/19, EU:C:2020:297, paragraph 59), 
adding that in Movic, the exercise by the State monitoring authorities of powers of 
inquiry by which they establish findings on which to base their legal action, did 
not preclude the application of the Brussels Ia Regulation. He submits that the 
court which rules on that evidence has never declared that it did not have 
jurisdiction, even when foreign companies were concerned as in the Apple, 
Expedia or Booking cases, and that it is not consistent to vary the application of 
the regulation depending on the nature of the evidence.  
Lastly, he adds that his action puts him on equal footing with the defendants, since 
they are subject to the rules of the Code of Civil Procedure which are applicable to 
all the parties in the case, with all the corresponding safeguards and that the 
classification of the infringement and the penalty imposed, if appropriate, are 
subject to the sovereign assessment of the court seised.  
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
14 The Minister bases his action on the provisions of Article L 442-6, I, 2°, of the 
French Commercial Code in the version thereof prior to Ordinance No 2019-359 
of 24 April recasting Title IV of Book IV of the Commercial Code which, in 
Article 2, replaces them with the provisions of L 442-1, I, of that code. 
15 (Former) Article L 442-6 of the Commercial Code provides: ʻI. Any producer, 
trader, manufacturer or person registered in the trades register shall be liable for, 
and obliged to compensate for the harm resulting from, any act which: 
… 
2° subjects or attempts to subject a commercial partner to obligations creating a 
significant imbalance in the rights and obligations of the parties. 
… 
III. – Proceedings may be brought before the competent civil or commercial court 
by any person who provides proof of a legitimate interest, the Public Prosecutor’s 
Office, the Minister for Economic Affairs or the president of the Competition 
Authority, when he detects a practice mentioned in this article in cases under his 
jurisdiction. 
EURELEC TRADING 
 
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…ʼ 
16 The companies facing prosecution contest the jurisdiction of the French court to 
hear the Minister’s action against the two Belgian companies. It is therefore a 
matter, in this case, of determining whether the court of the Member State has 
jurisdiction to hear an action brought by authorities of that State against 
companies established in another Member State for a declaration recognising, 
penalising and putting an end to alleged restrictive practices in respect of suppliers 
established in the Member State, in this case France. 
17 Is the Brussels Ia Regulation applicable? Article 1(1) provides: ʻThis Regulation 
shall apply in civil and commercial matters whatever the nature of the court or 
tribunal. It shall not extend, in particular, to revenue, customs or administrative 
matters or to the liability of the State for acts and omissions in the exercise of 
State authority (acta iure imperii)ʼ.  
18 According to the Court (judgment of 16 July 2020, Movic and Others,  C-73/19, 
EU:C:2020:568), Article 1(1) of the Brussels Ia Regulation must be interpreted as 
meaning that an action where the opposing parties are the authorities of a Member 
State and businesses established in another Member State, in which those 
authorities seek, primarily, findings of infringements constituting allegedly 
unlawful unfair commercial practices and an order for the cessation of such 
infringements and, as ancillary measures, an order for publicity measures and the 
imposition of a penalty payment, falls within the scope of the concept of ‘civil and 
commercial matters’ in that provision. 
19 In the judgment in Movic, the Court stated:  
– in paragraph 33, that the concept of ‘civil and commercial matters’ must be 
regarded as an autonomous concept to be interpreted by reference, first, to the 
objectives and scheme of that regulation and, second, to the general principles 
which stem from the corpus of the national legal system;  
– in paragraph 34, that the need to ensure the smooth functioning of the internal 
market and the need to ensure, in the interests of the harmonious administration 
of justice, that irreconcilable judgments will not be delivered in the Member 
States require a broad interpretation of that concept of ‘civil and commercial 
matters’; 
– in paragraph 35, that it has repeatedly held that, although certain actions where 
the opposing parties are a public authority and a person governed by private 
law may come within the scope of the Brussels Ia Regulation, it is otherwise 
where the public authority is acting in the exercise of its public powers; 
– in paragraph 36, that the exercise of public powers by one of the parties to the 
action, because it exercises powers falling outside the scope of the ordinary 
legal rules applicable to relationships between private individuals, excludes 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-98/22 
 
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such an action from ‘civil and commercial matters’ within the meaning of 
Article 1(1) of the Brussels Ia Regulation; 
– in paragraph 37, that in order to determine whether or not a matter falls within 
the scope of the concept of ‘civil and commercial matters’ within the meaning 
of Article 1(1) of the Brussels Ia Regulation, and, consequently, whether it 
comes within the scope of that regulation, it is necessary to determine the 
nature of the legal relationships between the parties to the action and the 
subject matter of the action or, alternatively, the basis of the action and the 
detailed rules applicable to it; 
– in paragraph 57, that only where, due to the use to which a public authority has 
put certain pieces of evidence, it is not specifically in the same position as a 
person governed by private law in the context of a similar action, would it be 
appropriate to make a finding that such an authority has, in the particular case, 
exercised public powers; 
– in paragraph 59, that it is not apparent from the information available to the 
Court that, in the context of the proceedings pending before the referring court, 
the Belgian authorities made any use of evidence collected by exercising their 
public powers, which, as the case may be, it falls to the referring court to 
verify. 
20 The referring court wonders whether the solution given by that judgment may be 
transposed to the action for significant imbalance brought by the Minister seeking 
a declaration of the existence of restrictive practices. It considers that in order to 
answer that question, it is necessary to examine the action brought by the Minister 
against those two Belgian companies from the point of view of the French system.  
21 Under (former) Article L 442-6 of the Commercial Code, although the victim may 
claim damages for the harm caused by the practices at issue and request cessation 
of the practice or annulment of a term, only the Minister and the Public 
Prosecutorʼs Office may apply for the perpetrator of the practices to be ordered to 
pay a civil fine. 
22 In addition to the fact that the Minister, who intervenes on behalf of the general 
interest, does not have to justify his interest in bringing proceedings and benefits 
from an action classified as autonomous according to the judgment of the Cour de 
cassation (Court of Cassation) of 6 July 2016 cited above, he may use his powers 
of investigation.  
23 In the present case, the Minister produces evidence which he has gathered in the 
premises of the ACDLEC and of GALEC pursuant to the provisions of Article L 
450-4 of the Commercial Code which allow him to arrange for agents of the 
Competition Authority authorised for that purpose to conduct visits in any places 
and seize documents and any data medium. The evidence thus gathered is 
nevertheless subject to the principle of freedom to challenge the evidence in civil 
proceedings.  
EURELEC TRADING 
 
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24 In comparison, as regards evidence, private persons do not enjoy those powers but 
may have recourse to measures of inquiry in futurum which may be ordered on the 
basis of Article 145 of the Code of Civil Procedure at the request of any natural or 
legal person, even a public body, such as an order to produce documents, an order 
that an expert opinion be obtained or preventive attachments carried out by 
bailiffs. These investigative measures may be obtained on request, that is to say on 
an ex parte basis when they are shown to be necessary.  
25 Moreover, opposing a measure of inquiry in futurum ordered on the basis of 
Article 145 of the Code of Civil Procedure does not constitute an offence, 
although any opposition to the visits and seizures of authorised officials 
constitutes an offence of obstructing an investigation. 
26 Therefore, the referring court wonders if, as in this case, where the Minister uses 
his specific powers of investigation to establish the existence of practices 
constituting a significant imbalance in the rights and obligations of the parties and 
asks the court to order a civil fine in order to sanction them, he is using a public 
power in bringing his action which excludes it from the scope of the Brussels Ia 
Regulation as it does not concern civil and commercial matters.  
27 Thus, in view of the specific nature of the Minister’s action in French law, there is 
reasonable doubt that the action as brought by the Minister in this case falls within 
the material scope of the Brussels Ia Regulation, applicable to ‘civil and 
commercial matters’, which justifies making a reference for a preliminary ruling 
under Article 267 TFEU.  
28 The referring court stays the proceedings and refers the following question to the 
Court of Justice for a preliminary ruling:  
Are ʻcivil and commercialʼ matters, as defined in Article 1(1) of Regulation 
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, to be interpreted as including in the scope of that 
regulation an action – and the judicial decision rendered at the end of the 
proceedings – (i) brought by the French Minister for Economic Affairs and 
Finances pursuant to (former) Article L 442-6, I, 2° of the French Commercial 
Code against a Belgian company, (ii) seeking a declaration of the existence of 
restrictive practices, an order that they cease and an order that the alleged 
perpetrator of those practices pay a civil fine, (iii) on the basis of evidence 
obtained in the exercise of his specific powers of investigation?