Opinion of the Advocate General — ECLI:EU:C:2014:2443
Date: 2014-12-11
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the fines imposed and the actions against them brought before the General Court of the European Union and the Court are set out in Press Release No 154/13 of 5 December 2013, which can be found at: the following Internet address: http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-12/cp130154fr.pdf. 10 – The order for reference mentions that CDC concluded agreements transferring claims for damages with 32 companies established in 13 different European states, some of which had previously concluded such agreements with 39 other undertakings. 11 – The defendants were Akzo Nobel NV (‘Akzo Nobel’), established in the Netherlands, Solvay SA (‘Solvay’), established in Belgium, Kemira Oyj (‘Kemira’), established in Finland, Arkema France SA (‘Arkema France’), established in France (against which CDC later withdrew its claim), FMC Foret SA (‘FMC Foret’), established in Spain, and Evonik Degussa, the only one established in Germany (initially a defendant and later an intervening party in support of Akzo Nobel, Kemira and Arkema France). 12 – Chemoxal SA, a party intervening in support of Solvay and FMC Foret, is established in France, whereas Edison SpA (‘Edison’), a party intervening in support of Akzo Nobel, Kemira, Arkema France and FMC Foret, is established in Italy. 13 – Regarding this concept see, inter alia, Mestmäcker, E.-J., Wirtschaft und Verfassung in der Europäischen Union: Beiträge zu Recht, Theorie und Politik der europäischen Integration, Nomos, Baden-Baden, 2nd edition 2006, particularly pp. 30-39 and pp. 116-132; Christodoulidis, E., ‘A default Constitutionalism? A Disquieting Note on Europe’s Many Constitutions’ in The Many Constitutions of Europe, Tuori, K., and Sankari, S., (eds.), Ashgate, Edinburgh Centre for Law and Society series, 2010, p. 31 et seq., particularly pp. 34-38. 14 – See judgment in Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 36). 15 – The judgment delivered in Otis and Others (C‑199/11, EU:C:2012:684, paragraph 46) in connection with a claim for damages based on loss caused to the Union by an agreement or practice, points out that the ‘principle of effective judicial protection is a general principle of EU law, to which expression is now given by Article 47 of the Charter’. 16 – Regarding the fact that, in Germany, group actions are not permitted, unlike in the United Kingdom, but that actions may be brought by companies which, like CDC, have been established with the sole aim of bringing an action for damages on behalf of their members, see Derenne, J., ‘Réparation du dommage concurrentiel dans le droit de l’Union européenne et des États membres’, Concurrences, 2014, no 3, Colloque, pp. 76-78, paragraphs 120 and 122. 17 – In this field ‘litigation concerning damages is not sufficiently developed’ and ‘the chances of a victim obtaining damages for harm caused by an anti-competitive practice vary significantly between the Member States’ due to the ‘great diversity of national provisions governing such actions’ in the view of Calisti, D., in ‘Quelles propositions de l’Union européenne pour une meilleure réparation des dommages concurrentiels?’ Concurrences, 2014, no 3, pp. 27-31, paragraphs 6 and 7. Regarding the desirability of being able to consolidate the actions of several applicants against the same defendant, specifically in the case of cartel agreements, see also the Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of the Brussels I Regulation [COM(2009) 174 final, paragraph 3.5]. 18 – C‑453/99, EU:C:2001:465. 19 – C‑295/04 to C‑298/04, EU:C:2006:461. 20 – Ibid. (paragraph 95). 21 – ‘In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction to hear actions for damages based on an infringement of the Community competition rules and to prescribe the detailed procedural rules governing those actions, provided that the provisions concerned are not less favourable than those governing actions for damages based on an infringement of national competition rules [principle of equivalence] and that those national provisions do not render impossible in practice or excessively difficult the exercise of the right to seek compensation for the harm caused by an agreement or practice prohibited under Article 81 [principle of effectiveness]’ (ibid., paragraph 72). 22 – See Article 6(3) of that regulation and point 75 of this Opinion. 23 – It is settled law that secondary legislation must be interpreted and applied in accordance with primary legislation. See, inter alia, the judgment in Spain v Commission (C‑135/93, EU:C:1995:201, paragraph 37), which reiterates that ‘where the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty rather than the interpretation which leads to its being incompatible with the Treaty’. See also the judgment in Commission v Strack Review (C‑579/12 RX-II, EU:C:2013:570, paragraph 40). 24 – See the judgment in flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 29) and the Opinion of Advocate General Kokott in the same case, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2046, point 48). 25 – OJ 1972 L 299, p. 32. Wording as amended by the successive conventions on the accession of new Member States to the Convention. See also the Report by Mr P. Jenard on the Brussels Convention (OJ 1979 C 59, p. 1, the ‘Jenard Report’) and also the report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Brussels Convention, and to the Protocol on its interpretation by the Court of Justice, signed in Luxembourg on 9 October 1978, produced by Professor P. Schlosser (OJ 1979 C 59, p. 71, the ‘Schlosser Report’). 26 – See, inter alia, the judgments in OTP Bank (C‑519/12, EU:C:2013:674, paragraph 21) and Brogsitter (C‑548/12, EU:C:2014:148, paragraph 19). 27 – See, inter alia, in relation to Article 5(3) of the Brussels I Regulation, the judgments in Folien Fischer and Fofitec (C‑133/11, EU:C:2012:664, paragraphs 31 and 32) and ÖFAB (C‑147/12, EU:C:2013:490, paragraphs 28 and 29); in relation to Article 6(1), Freeport (C‑98/06, EU:C:2007:595, paragraph 39) and Sapir and Others (C‑645/11, EU:C:2013:228, paragraphs 31 and 42); and, in relation to Article 23, Refcomp (C‑543/10, EU:C:2013:62, paragraphs 18 and 19). 28 – See, inter alia, in connection with the Brussels Convention, the judgment in Benincasa (C‑269/95, EU:C:1997:337, paragraphs 26 and 27) and, in connection with the Brussels I Regulation, the judgment in Melzer (C‑228/11, EU:C:2013:305, paragraph 35). 29 – Regarding the Court’s position to this effect, see footnote 31 of this Opinion. 30 – In this connection, see Idot, L., ‘La dimension international des actions en réparation. Choisir sa loi et son juge: Quelles possibilités?’ Concurrences, 2014, no 3, pp. 43-53, in particular paragraph 5. 31 – In accordance with the judgment in flyLAL-Lithuanian Airlines (EU:C:2014:2319, paragraph 28), ‘[t]he action brought [by flyLAL] [in the main proceedings] seeks legal redress for damage relating to an alleged infringement of competition law. Thus, it comes within the law relating to tort, delict or quasi-delict’. 32 – Namely offences whose constituent elements, in other words the causal event and the harmful consequences to which it led, are separate and dispersed over the territory of several Member States. 33 – I would point out that, in this case, the second scenario envisaged by the provision in question, concerning the ‘place where the harmful event … may occur’, is not important because the applicant has invoked the consequences of tort or delict which have already occurred. 34 – See, inter alia, the judgments in Hi Hotel HCF (C‑387/12, EU:C:2014:215, paragraph 27) and Coty Germany (C‑360/12, EU:C:2014:1318, paragraph 46 and case-law cited). 35 – See, inter alia, the judgments in Shevill and Others (C‑68/93, EU:C:1995:61, paragraph 27 et seq.) and eDate advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 51). 36 – The Commission suggests interpreting Article 5(3) of the Brussels I Regulation to the effect that, in circumstances such as those in the main proceedings, ‘the applicant may bring an action for damages against each of the members of the cartel either in the courts of each Member State in which collusive agreements were entered into and implemented (place of the causal event), or before the courts of each Member State in whose territory the market was affected by the restriction of competition (place of the result); the former have jurisdiction to rule on the compensation for the overall damage caused by the infringement of the law governing cartels whereas the latter have jurisdiction to rule on the damage caused in the State of the court seised’ (my italics). 37 – Kemira submits that this question for which the court seeks a preliminary ruling is inadmissible because, inter alia, it would not contribute towards showing that unlawful cartel agreements had been entered into or implemented within the jurisdiction of the court seised. In that connection, it will suffice to point out that the questions raised by the referring court in the factual and regulatory context which that court is responsible for defining, and the accuracy of which is not a matter for the Court, enjoy a presumption of relevance which can be overturned only in a limited number of circumstances (see, inter alia, the judgment in Pohotovost’, C‑470/12, EU:C:2014:101, paragraph 27 et seq.), circumstances which, in my view, do not prevail in this case. 38 – In particular, according to FMC Foret, the courts of a Member State should have jurisdiction only to rule on claims based on the part of the unlawful cartel agreement which was entered into or which produced its effects in that State, whereas Solvay submits that a close link between the court seised and the dispute should be established, by way of a connecting factor for establishing jurisdiction, separately with respect to every defendant and for the overall damage alleged. 39 – See, inter alia, the judgments in Réunion européenne and Others (C‑51/97, EU:C:1998:509, paragraph 15); Melzer (EU:C:2013:305, paragraphs 22 and 34 et seq.); Weber (C‑438/12, EU:C:2014:212, paragraph 40); and Coty Germany (EU:C:2014:1318, paragraph 43). 40 – See, inter alia, the judgment in Coty Germany (EU:C:2014:1318, paragraphs 44 and 45). 41 – See, inter alia, the judgment in Kronhofer (C‑168/02, EU:C:2004:364, paragraphs 14 and 20). 42 – In matters relating to tort and delict, the courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on grounds of proximity and ease of taking evidence (see, inter alia, the judgment in Melzer, EU:C:2013:305, paragraph 27. 43 – In footnote 34 of this Opinion. 44 – See, inter alia, the judgment in Coty Germany (EU:C:2014:1318, paragraphs 47 and 48). 45 – The referring court indicates that this problem arises ‘[e]ven assuming that liability is attributed to all the defendants, on the ground that the infringement at issue is a single and continuous infringement committed by a number of co-perpetrators contrary to Article 81 EC/Article 101 TFEU’. 46 – See the judgment in LAL-Lithuanian Airlines (EU:C:2014:2319, paragraph 28). 47 – On the other hand, Article 5(3) could, in my view, apply to vertical restrictions of competition — provided that the liability invoked is not of a contractual nature — and to cartel agreements whose scope is geographically limited, seeing that the geographical location of both the anti-competitive act and its effect can be clearly identified. 48 – See recital 15 in the preamble to the Brussels I Regulation. 49 – Regarding the various aspects of the practical implementation of the cartel in this case, see point 18 of this Opinion. 50 – EU:C:2013:305, paragraph 40. 51 – Negative action as a result of a cartel agreement is not equivalent to positive action, because abstention cannot as such be linked to a specific place (see, by analogy, the judgment in Besix, C‑256/00, EU:C:2002:99, paragraph 49, where the disputed contractual obligation was an undertaking not to act which was not subject to any geographical limit). 52 – See Advocate General Cruz Villalón in his Opinion in Hejduk (C‑441/13, EU:C:2014:2212, point 42), who pointed out that ‘[a] criterion which requires a plaintiff to circumscribe the scope of his action according to territorial criteria which are difficult, if not impossible, to determine, is not a criterion which reflects the spirit of the [Brussels I] Regulation’. 53 – In my view there should be a distinction between this situation and those, for example, of a classic cartel managed by a trade association or a cartel whose activity is geographically concentrated because of a single venue for meetings, given that in such situations there would not be an equivalent dispersal of damage-causing events. 54 – Thus, in the judgment in Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 30 et seq.), the Court held that ‘a loss being suffered by the customer of an undertaking not party to a cartel, but benefiting from the economic conditions of umbrella pricing, because of an offer price higher than it would have been but for the existence of that cartel is one of the possible effects of the cartel, that the members thereof cannot disregard’. 55 – In the judgment in Dumez France and Tracoba (C‑220/88, EU:C:1990:8, paragraph 20), the Court interpreted Article 5(3) of the Brussels Convention as meaning that the person indirectly adversely affected may bring an action, on that basis, only before the court of the place where the event giving rise to the damage directly produced its harmful effects on the person who is immediately adversely affected. 56 – It follows from the provisions of the Brussels I Regulation that the latter limits the cases in which a defendant may be sued before the court of the applicant’s domicile (see, in relation to the Brussels Convention, the judgments in Six Constructions, 32/88, EU:C:1989:68, paragraphs 13 and 14, and Dumez France and Tracoba, EU:C:1990:8, paragraph 19). 57 – In this connection, recital 21 in the preamble to the Rome II Regulation indicates that ‘[t]he connection to the law of the country where competitive relations … are, or are likely to be affected, [which is laid down, in respect of acts restricting free competition, in Article 6 of that regulation] generally … protect[s] competitors, consumers and the general public and ensure[s] the proper functioning of the market economy’. 58 – Ashton, D., and Henry, D., Competition Damages Action in the EU, Law and Practice, Elgar Competition Law and Practice Series, Cheltenham, 2013, p. 179, point 7.030, emphasise that ‘[i]n the case of a pan-European cartel [the place where the claimant suffered loss] could conceivably be in any Member State, which leads to relatively unrestrained freedom to forum shop in proceedings relating to … abuses with effects felt throughout Europe’. 59 – EU:C:1995:61, paragraph 33, which indicates that ‘the courts of each Contracting State [to the Brussels Convention] in which the publication was distributed and where the victim claims to have suffered injury to his reputation, [have] jurisdiction to rule solely in respect of the harm caused in the State of the court seised’ (my italics). 60 – The courts of each Member State are best placed to assess the nature and extent of the damage arising in national territory. 61 – See the specific example mentioned by Idot, L., in ‘La dimension internationale des actions en réparation. Choisir sa loi et son juge: Quelles possibilités?’, op. cit., paragraph 34. 62 – EU:C:2012:664. 63 – Pursuant to Article 16(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [101 TFEU and 102 TFEU] (OJ 2003, L 1, p. 1), in order to guarantee ‘[u]niform application of Community competition law’, ‘[w]hen national courts rule on agreements, decisions or practices under Article [101 TFEU] which are already the subject of a Commission decision, they cannot take decisions running counter to the decision adopted by the Commission’. The judgment in Otis and Others (EU:C:2012:684, paragraph 51), indicates that ‘[t]hat rule also applies when national courts are hearing an action for damages or loss sustained as a result of an agreement or practice which has been found by a decision of the Commission to infringe Article 101 TFEU’. 64 – EU:C:2002:99, paragraph 55. Under the terms of that judgment, ‘the special jurisdictional rule in matters relating to a contract laid down in Article 5(1) of the Brussels Convention is not applicable where … the place of performance of the obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit and is therefore characterised by a multiplicity of places for its performance’ (my italics). 65 – A finding of a connecting factor can of course also be made in the context of Article 28 of the Brussels I Regulation, but in a different manner (see footnote 70 of this Opinion). 66 – See point 44 of this Opinion. 67 – See, starting from the Court’s first judgment interpreting Article 6(1) of the Brussels Convention, the judgment in Kalfelis (189/87, EU:C:1988:459, paragraph 10), then later in relation to Article 6(1) of the Brussels I Regulation, inter alia, the judgment in Reisch Montage (C‑103/05, EU:C:2006:471, paragraphs 27 to 30). 68 – Recital 11 in the preamble to the Brussels I Regulation states that ‘[t]he domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction’ and Article 60(1) provides that, for the purpose of applying the regulation, a company or other legal person is domiciled at the place where it has its statutory seat, central administration, or principal place of business. 69 – As pointed out in the judgment in Freeport (EU:C:2007:595, paragraph 53), that condition did not figure in Article 6(1) of the Brussels Convention, but was inferred by the Court in the judgment in Kalfelis (EU:C:1988:459, paragraph 12) concerning the interpretation of that provision and was later adopted by the Union legislature, which introduced it into the wording of the Brussels I Regulation. 70 – The condition set out in Article 6(1) of the regulation is formulated in the same manner in Article 28, which defines the concept of connexity in the case of several courts potentially having jurisdiction, whereas Article 6(1), by contrast, provides for an extension of the jurisdiction of the court seised to cover defendants who would not normally fall under its jurisdiction. In the judgment in Tatry (C‑406/92, EU:C:1994:400, paragraph 53), relating to Article 22 of the Brussels Convention, which equates to Article 28 of the Brussels I Regulation, the Court held that it is sufficient that there is ‘a risk of conflicting decisions, even if the judgments can be separately enforced and their legal consequences are not mutually exclusive’. 71 – See the judgment in Painer (C‑145/10, EU:C:2011:798, paragraph 77) relating to recitals 12 and 15 in the preamble to the Brussels I Regulation. 72 – See, inter alia, the judgments in Glaxosmithkline and Laboratoires Glaxosmithkline (C‑462/06, EU:C:2008:299, paragraph 28) and Painer (EU:C:2011:798, paragraph 74). 73 – The judgment in Glaxosmithkline and Laboratoires Glaxosmithkline (EU:C:2008:299, paragraph 20 et seq.) excludes recourse to that provision where the rules on jurisdiction designed to protect a weak party, contained in Section 5 of Chapter II of the Brussels I Regulation, are applicable. 74 – Kemira submits that the first part of the first question is inadmissible on the grounds that the referring court may in no circumstances claim jurisdiction on the basis of Article 6(1) of the Brussels I Regulation, because only the Landgericht Essen (Regional Court Essen, Germany) has jurisdiction ratione loci, not the Landgericht, Dortmund, for the seat of the ‘anchor defendant’ is in Essen. It is true that that provision refers to the court for the place where any one of the defendants in the main proceedings is domiciled, and not to all the courts of a Member State, as does Article 2 of the regulation. Nevertheless, it is acceptable, in my view, for a domestic rule to operate a centralisation of jurisdiction ratione materiae, particularly in the competition field, as in the case of Article 89 of the Act on Restrictions of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) in Germany, provided that such a rule does not discriminate between cross-border disputes and domestic disputes and exclude the former from the jurisdiction of a court which would normally have jurisdiction both ratione loci and ratione materiae. (See, by analogy, my Opinion in Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2171, paragraph 58 et seq., footnote 72.) 75 – Judgment in Sapir and Others (EU:C:2013:228, paragraph 43 and case-law cited). 76 – In this regard, see footnote 63 to this Opinion. 77 – The court refers in this connection to Commission Decision C(2006) 1766 final, paragraphs 31 and 324-327. 78 – See, inter alia, the judgments in Sapir and Others (EU:C:2013:228, paragraph 44) and Painer (EU:C:2011:798, paragraph 84). 79 – See the judgment in Kalfelis (EU:C:1988:459, paragraph 9) and the Jenard Report, cited above, in particular p. 26 (my italics). 80 – The Commission points out that this is the case ‘in Germany, France, the Netherlands, Belgium, Finland and Sweden’ and that ‘the same applies under the criminal liability systems of Italy, the United Kingdom, Spain, Austria, Romania, Croatia, the Czech Republic, Denmark, Estonia, Greece, Hungary, Ireland, Lithuania, Luxembourg, Poland and Portugal’. 81 – See recital 37 and Article 11(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 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 (OJ 2014 L 349, p. 1). 82 – See, by analogy, the judgment in Solvay (C‑616/10, EU:C:2012:445, paragraph 28). 83 – In the judgment in Sapir and Others (EU:C:2013:228, paragraphs 47 and 48), the Court stressed the fact that, even though the legal basis relied upon in support of the claim against one defendant is different from that on which the action brought against the other defendants is based, the need to determine the issue uniformly exists where the claims relied upon in the various proceedings are all directed at the same interest. 84 – See the judgments in Painer (EU:C:2011:798, paragraph 83) and Solvay (EU:C:2012:445, paragraph 29). 85 – See the second sentence of Article 6(3)(b) and, on the conditions for the application of that provision, Fitchen, J., ‘The Applicable Law in Cross-Border Competition Law Actions and Article 6(3) of Regulation No 864/2007’, in Cross-Border EU Competition Law Actions, Mihail, D., Becker, F., and Beaumont, P. (under the guidance of), Hart Publishing, Oxford, 2013, p. 297 et seq., in particular p. 323 et seq. 86 – Recital 7 in the preamble to the Rome II Regulation expressly states that ‘the substantive scope and the provisions [of the latter] should be consistent with the [Brussels I] Regulation’. As part of its task of interpretation, the Court has already effected a parallel between competition rules laid down in the Brussels I Regulation and more recent rules on conflict of laws also flowing from Union law (see, inter alia, the judgments in Pammer and Hotel Alpenhof, C‑585/08 and C‑144/09, EU:C:2010:740, paragraphs 43, 74 and 84, and Football Dataco and Others, C‑173/11, EU:C:2012:642, paragraphs 29 and 31). 87 – See footnote 6 of this Opinion. 88 – Also known as the principle of forum perpetuum, or the principle of perpetuatio fori, to use the terminology employed in the order for reference. 89 – Evonik Degussa, for its part, limited its observations to an objection of inadmissibility directed at this part of the first question, on the grounds that it was hypothetical and irrelevant. In my view, the case-law cited in footnote 37 of this Opinion is sufficient justification for rejecting this objection of inadmissibility. 90 – EU:C:2006:471, paragraphs 27 to 31 (my italics). In that case, the national rule which led to inadmissibility vis-à-vis the anchor defendant precluded individual actions by creditors against a bankrupt debtor. 91 – EU:C:2007:595, paragraph 54. 92 – In this case, the order for reference states that notice of the action was served on the German company Evonik Degussa on 7 April 2009 and that the other defendants in the main proceedings received translated applications in August 2009, whereas the action against Evonik Degussa was withdrawn at the end of September 2009. 93 – Article 30 provides that ‘[for] the purposes of this Section, a court is deemed to be seised: 1) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or, 2) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court’. 94 – In the judgment in Kalfelis (EU:C:1988:459, paragraph 11), the Court also established a formal connection between the jurisdiction rule in Article 6(1) of the Brussels Convention (corresponding to Article 6(1) of the Brussels I Regulation) and the provisions relating to connexity in Article 22 thereof (corresponding to Article 28 of the regulation). 95 – See recitals 11 and 12 in the preamble to the Brussels I Regulation and recitals 15 and 16 in the preamble to Regulation No 1215/2012, which recasts the former, the latter being more detailed in this regard. 96 – My italics. See, inter alia, Reisch Montage (EU:C:2006:471, paragraph 32) and Painer (EU:C:2011:798, paragraph 78 and the case-law cited). 97 – According to that report (see p. 27), to which the Court referred in Kalfelis (EU:C:1988:459, paragraph 9), it follows from the requirement of a ‘connection between the claims made against each of the defendants, … that action cannot be brought solely with the object of ousting the jurisdiction of the courts of the State in which the defendant is domiciled’. 98 – EU:C:2007:595, paragraph 54 (my italics). 99 – See, inter alia, Michinel Álvarez, M. A., ‘Jurisprudencia española y comunitaria de Derecho internacional privado’, Revista Española de Derecho Internacional, 2007, no 2, pp. 754-757; Idot, L., ‘Pluralité de défendeurs et fraude à la compétence juridictionnelle’, Europe, 2007, December, commentary no 364, pp. 35-36; Würdinger, M., ‘RIW-Kommentar’, Recht der Internationalen Wirtschaft, 2008, no 1-2, pp. 71-72; Scott, A., ‘‘Réunion’ Revised? Freeport v Arnoldsson’, Lloyd’s Maritime and Commercial Law Quarterly, 2008, no 2, pp. 113-118. 100 – The order for reference indicates that ‘[i]n the light of the timeline of procedural events relating to the partial withdrawal of the action and taking into account the conduct of the applicant and the former anchor defendant and current intervener Evonik Degussa GmbH in the proceedings, it is not only possible but almost certain that the settlement agreement, or at least the substance and key points of it, had already been reached before the action was brought’. 101 – On abuse of rights, and in particular the different effect that it is likely to have, first, concerning jurisdiction and, second, concerning lack of the right to bring an action, see Usunier, L., ‘Le règlement Bruxelles I bis et la théorie de l’abus de droit», in Le nouveau règlement Bruxelles I bis, Règlement No 1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l'exécution des décisions en matière civile et commerciale, Guinchard, E. (under the guidance of), Bruylant, Brussels, 2014, p. 449 et seq., in particular p. 473. 102 – In this connection, the Commission considers, quite correctly, that the condition of connexity required by Article 6(1) would be wanting if the applicant and the ‘anchor defendant’ had actually entered into a definitive transaction regarding the disputed legal relationship before proceedings were brought, but if the action had none the less been brought against that defendant, and the transaction concealed, for the sole purpose of depriving one of the other defendants of the jurisdiction of the courts of the Member State where that defendant was domiciled. 103 – In footnote 27 in his Opinion in Freeport (C‑98/06, EU:C:2007:302), Advocate General Mengozzi indicated that ‘[w]ithin certain limits, “forum shopping”, interpreted according to the definition provided by Advocate General Colomer as “[c]hoosing a forum according to the advantages which may arise from the substantive (and even procedural) law applied there” (see the Opinion in GIE Groupe Concorde and Others, C‑440/97, [EU:C:1999:146], footnote 10), is undoubtedly permitted’ (emphasis added). 104 – The Court held in the judgment in Manfredi and Others (EU:C:2006:461, paragraph 60) that ‘the full effectiveness of Article 81 EC [Article 101 TFEU] and, in particular, the practical effect of the prohibition laid down in Article 81(1) EC would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition (see Courage and Crehan [EU:C:2001:465], paragraph 26)’. 105 – The Landgericht Dortmund indicates that, in order to ascertain whether clauses conferring jurisdiction may validly be invoked against statutory jurisdiction rules, it is necessary, by interpreting those clauses, to determine which disputes fall within their scope, which is a matter for the national court alone, and that the same is true of arbitration clauses. 106 – By way of illustration, CDC mentions the supply contract of 20 June 1996 concerning a specific delivery of hydrogen peroxide from the FMC Group to the German factory of the assignee Stora Enso Oyj, which contained the following clause: ‘it is hereby agreed between the parties that the court of Düsseldorf [Germany] shall be seised of any dispute arising out of this contract’. 107 – CDC cites as an example ‘the contract concluded between Oy Finnish Peroxides AB and the assignor Stora Enso Oyj in early March 2011 concerning deliveries in the period 1 February 2001 to 31 January 2003 and containing the following clause: “All disputes or allegations resulting from or in connection with this contract or any infringement thereof, or concerning its termination or validity, shall be referred to an arbitration tribunal according to the rules of the Helsinki Chamber of Commerce. Arbitration shall take place in Helsinki, Finland”’. 108 – This being the case with Stora Enso Oyj in the examples given in the two preceding footnotes. 109 – CDC indicates that ‘Kemira Kemi AB and the assignor Södra Cell AB agreed on 27 June 1996, in respect of the supply period 1 January 1996 to 31 December 1998, that arbitration would take place in Stockholm [Sweden], and on 2 and 30 April, in respect of an unspecified delivery period, that arbitration would take place in Malmö [Sweden]’. 110 – In this connection, see point 127 of this Opinion. 111 – Article 1(2)(d) of the Brussels I Regulation excludes arbitration from its scope. Given that the Brussels Convention contained an equivalent clause, paragraph 63 of the Schlosser report, cited above, indicated that ‘[t]he 1968 Convention as such in no way restricts the freedom of the parties to submit disputes to arbitration. This applies even to proceedings for which the 1968 Convention has established exclusive jurisdiction. Nor, of course, does the Convention preclude national legislation from invalidating arbitration agreements affecting disputes for which exclusive jurisdiction exists under national law or pursuant to the 1968 Convention’. 112 – The Court has held that, by excluding arbitration from the scope of the Brussels Convention, on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts, and that that exclusion extends to such a procedure, whose purpose is to appoint an arbitration tribunal, even if that dispute raises the initial question of the existence or validity of an arbitration agreement (See the judgment in Rich, C‑190/89, EU:C:1991:319, paragraph 18, and the Opinion of Advocate General Darmon in that case, C‑190/89, EU:C:1991:58; see also the judgment in Van Uden, C‑391/95, EU:C:1998:543, paragraphs 31 and 32). 113 – Judgment in Allianz and Generali Assicurazioni Generali (C‑185/07, EU:C:2009:69, paragraphs 26 and 27). 114 – Respect for the autonomy of the parties’ wishes is mentioned, inter alia, in recital 11 in the preamble to the Brussels I Regulation. 115 – Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, concluded in Lugano on 16 September 1988 (OJ 1988 L 319, p. 9) between the Member States of the European Economic Community and certain States members of the European Free Trade Association (EFTA), which mirrors the Brussels Convention and was revised by a convention concluded in Lugano on 30 October 2007 between the European Community, the Kingdom of Denmark, the Republic of Iceland, the Kingdom of Norway and the Swiss Confederation [see the Explanatory Report of Mr Pocar concerning that convention (OJ 2009 C 319, p. 1)]. 116 – In this connection, the Commission submits that national courts, at least all those which sit in EU territory, are required, under primary law, to guarantee effective exercise of the rights deriving from Article 101 TFEU. Thus, only clauses which confer jurisdiction on a court outside that territory could be problematic from the point of view of the principle of full effectiveness of the prohibition of agreements, decisions and concerted practices in Union law. 117 – See point 37 of this Opinion. 118 – See point 127 of this Opinion. 119 – However, Article 6(4) of the Rome II Regulation provides that ‘[t]he law applicable under this Article [entitled “Unfair competition and acts restricting free competition”][to non-contractual obligations] may not be derogated from by an agreement pursuant to Article 14’, namely ‘an agreement entered into after the event giving rise to the damage occurred’ or ‘where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred’ which also complies with the other conditions set forth in that article. 120 – I would point out that an expression of the wishes of the parties in the form of a jurisdiction clause cannot, on the contrary, alter the jurisdiction ratione materiae of a court of a Member State, which is determined by the law of the court seised. 121 – See the judgment in Estasis Saloti di Colzani (24/76, EU:C:1976:177, paragraph 7). 122 – See the judgment in Meeth (23/78, EU:C:1978:198, paragraph 5). 123 – In relation to insurance, consumer and employment contracts, that autonomy is limited (see recitals 11, 13 and 14 and Articles 13, 17 and 21 of that regulation). 124 – Regarding the classification of the subject-matter of the dispute in the main proceedings and the resultant consequences in terms of the interplay of the arbitration and jurisdiction clauses relied upon, see the comments in point 127 et seq. of this Opinion. 125 – Pursuant to the judgment in Coreck (C‑387/98, EU:C:2000:606, paragraph 19 et seq.), it is the national law applicable to the substance of the case which determines whether a third party to the initial contract succeeded to the rights and obligations of one of the original parties, such that a jurisdiction clause could apply to the former, even if it had not agreed to it at the time the contract was concluded. 126 – Judgment in Refcomp (EU:C:2013:62, paragraph 27 et seq.). 127 – See the judgment in Powell Duffryn (C‑214/89, EU:C:1992:115, paragraph 31, my italics). 128 – See recital 48 et seq, and Articles 18 and 19 of that directive, in addition to the proposal by the Commission leading to the adoption of that act (COM(2013) 404 final, p. 22 et seq., point 4.6). The European Economic and Social Committee (see OJ 2014 C 67, p. 83, paragraph 4.7), the Council of the European Union (see note entitled ‘Analysis of the final compromise text with a view to agreement’, of 24 March 2014, 8088/14 RC 6 JUSTCIV 76 CODEC 885, particularly pp. 4, 12 and 37 et seq.) and the European Parliament [see legislative resolution and position adopted at first reading on 17 April 2014, P7_TA(2014)0451, recital 43 and Articles 18 and 19] have all taken a position on this proposal, duly approving the proposed mechanisms. 129 – In this connection, the second subparagraph of Article 25(5) of Regulation No 1215/2012 states that ‘[t]he validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid’, in line with the principle of the autonomy of such a clause in relation to the substantive conditions of the contract in which it is incorporated, a principle upheld by the Court in the judgment in Benincasa (EU:C:1997:337, paragraph 24 et seq.). Moreover, it follows from the judgment in Eiffer (38/81, EU:C:1982:79, paragraph 7 et seq.) that such a clause must be applied even if the dispute concerns the constituent parts of the contract. 130 – See point 105 et seq. of this Opinion. 131 – See, inter alia, recitals 16 and 17 in the preamble to the Brussels I Regulation. 132 – In the judgment in Renault (C‑38/98, EU:C:2000:225, paragraph 29 et seq.), the Court held that, ‘without undermining the aim of the Convention’, ‘the possibility that the court of the State of origin erred in applying certain rules of Community law’ such as ‘the principles … of freedom of competition’, ‘does not constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought’, given that Article 29 and the third paragraph of Article 34 of the Brussels Convention (to which Articles 36 and 45(2) of the Brussels I Regulation equate) provide that ‘[u]nder no circumstances may a foreign judgment be reviewed as to its substance’. Regarding a review, for public policy purposes, of the observance of the elementary principles of the right to a fair trial, see flyLAL-Lithuanian Airlines (EU:C:2014:2319, paragraphs 46 to 54). 133 – Point 30 of this Opinion. See also the judgment in Kone and Others (EU:C:104:1317, paragraph 21 et seq.) and the case-law cited. 134 – See, inter alia, the judgment in Kone and Others (EU:C:104:1317, paragraph 24 et seq. and paragraph 32). That option forms part of what is usually known as the procedural autonomy of the Member States. 135 – The objective being to guarantee effective and undistorted competition in the internal market and hence prices which are arrived at as a result of free competition. 136 – Given that the provisions of that article produce direct effects in relations between individuals and create rights and obligations for the individuals concerned which the national courts must safeguard (see, inter alia, the judgment in Kone and Others, EU:C:2014:1317, paragraph 20). 137 – Ibid. (paragraph 21 et seq.). The explanatory memorandum in the proposal for a directive COM(2013) 404 final, pp. 2 and 4, emphasises that ‘[d]amages claims for breaches of Articles 101 [TFEU] or 102 [TFEU] constitute an important area of private enforcement of EU competition law’ and that ‘[t]he second main objective [of that proposal] is to ensure that victims of infringements of EU competition rules can effectively obtain compensation for the harm they have suffered’. 138 – The applicable provisions may derive from arbitration rules adopted by the Member State concerned or from international agreements to which the latter is party. 139 – See the judgment in Allianz and Generali Assicurazioni Generali (EU:C:2009:69, paragraphs 31 to 33) and, concerning the clarifications made in this regard by recital 12 in the preamble to Regulation No 1215/2012, inter alia, Neilsen, P. A., ‘The New Brussels I Regulation’, Common Market Law Review, 2013, vol. 50, p. 505 et seq., and Menétrey, S., and Racine, J.-B., ‘L’arbitrage et le règlement Bruxelles I bis’, in Le nouveau règlement Bruxelles Ibis, Règlement No 1215/2012 du 12 décembre 2012 concernant la compétence judiciaire, la reconnaissance et l'exécution des décisions en matière civile et commerciale, Guinchard, E. (under the guidance of), Bruylant, Brussels, 2014, p. 13 et seq., in particular point 37. 140 – EU:C:1999:269, paragraph 31 et seq., particularly paragraphs 36 and 39. 141 – Idem (paragraphs 37 and 40). 142 – See, inter alia, the judgments in Pfeiderer (C‑360/09, EU:C:2011:389, paragraph 28 et seq.) and Donau Chemie and Others (C‑536/11, EU:C:2013:366, paragraph 29 et seq.), which concern the right of an individual harmed by an infringement of Article 101 TFEU, and seeking to obtain damages on that account, to gain access to the documents in proceedings concerning the authors of that infringement, even in leniency proceedings, after the courts of the Member States have weighed up the interests at stake which are protected by Union law. 143 – Concerning the different forms allegedly taken by the clauses concerned, see point 94 of this Opinion. 144 – According to the judgment in Powell Duffryn (EU:C:1992;115, paragraphs 33 and 36), ‘it is for the national court to interpret the clause conferring jurisdiction invoked before it in order to determine which disputes fall within its scope’. 145 – Ibid. (paragraph 31) and point 110 of this Opinion. 146 – In this connection, the Commission submits that, on the one hand, the High Court of Justice (England and Wales), Queen’s Bench Division, held that a clause conferring jurisdiction referring to the ‘legal relationship’ between the parties did not cover the rights resulting from tortious liability arising from an agreement or concerted practice [judgment in Provimi Ltd. v Roche Products Ltd. (2003) EWHC 961] and, on the other hand, that the Helsingen käräjäoikeus (court of first instance, Helsinki, Finland) ruled, similarly, that an arbitration clause referring to ‘all the rights’ arising from a supply contract did not cover rights to claim damages as a result of a cartel agreement, in that the latter did not flow directly from that agreement but from a situation which was external to the latter, namely the participation of the defendant in a collusive agreement (interlocutory judgment of 4 July 2013, CDC Hydrogen Peroxide Cartel Damage Claims SA v Kemira Oyj, Välituomio 36492 no 11/16750). 147 – ‘It is apparent from settled case-law that the concept of “matters relating to tort, delict, or quasi-delict” within the meaning of Article 5(3) of the Brussels I Regulation covers all actions which seek to establish the liability of a defendant and which do not concern “matters relating to a contract” within the meaning of Article 5(1) of the regulation. In order to determine the nature of the civil liability claims brought before the referring court, it is important first to check whether they are, regardless of their classification under national law, contractual in nature’ (see, inter alia, the judgments in Engler, C‑27/02, EU:C:2005:33, paragraph 29 et seq., and Brogsitter, EU:C:2014:148, paragraph 20 et seq.). 148 – For example, according to the case-law of the Korkein oikeus (Supreme Court, Finland), an arbitration clause contained in a contract is applicable to a dispute concerning extra-contractual liability where failure to comply with the contract invoked constitutes fraud within the meaning of criminal law (see Korkein oikeus, judgment of 27 November 2008, KKO, 2008:102, available at the following Internet address: http://www.finlex.fi/fi/oikeus/kko/kko/2008/20080102).