Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 3 April 2025 (1)
Joined Cases C‑672/23 and C‑673/23
Electricity & Water Authority of the Government of Bahrain,
GCC Interconnection Authority,
Kuwait Ministry of Electricity and Water,
Oman Electricity Transmission Company SAOC
v
Prysmian Netherlands BV,
Draka Holding BV,
Prysmian Cavi e Sistemi Srl,
Pirelli & C.
SpA,
Prysmian SpA,
The Goldman Sachs Group Inc.,
ABB BV,
ABB Holdings BV,
ABB AB,
ABB Ltd,
Nexans Nederland BV,
Nexans Cabling Solutions BV,
Nexans Participations SA,
Nexans SA,
Nexans France SAS (C‑672/23)
and
Smurfit Kappa Europe BV,
Smurfit International BV,
Smurfit Kappa Italia SpA,
DS Smith Italy BV,
DS Smith plc,
DS Smith Packaging Italia SpA,
DS Smith Holding Italia SpA,
Toscana Ondulati SpA
v
Unilever Europe BV,
Unilever Supply Chain Company AG,
Unilever Italy Holdings Srl (C‑673/23)
(Request for a preliminary ruling from the Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands))
( Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Jurisdiction in civil and commercial matters – Regulation (EU) No 1215/2012 – Special jurisdiction – Article 8(1) – International and territorial jurisdiction – Multiple defendants – Close connection – Article 101 TFEU – Concept of undertaking – Joint and several liability – Downstream and upstream liability – Claim for damages under EU antitrust law – Causality – Damage arising outside the EEA )
I.      Introduction
1.        In the two sets of first-instance proceedings for damages under antitrust law that form the basis of the present requests for a preliminary ruling, the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) was in each case faced with a large number of defendants (collectively ‘defendants’) established in different locations, some of them in different countries.
2.        Some of those defendants, of which only one per proceedings is based in Amsterdam, have participated in infringements of the prohibition on cartels under EU law. According to the plaintiffs, the other defendants each belong to the same undertakings under antitrust law as those infringers and can therefore be held jointly and severally liable for their infringement.
3.        In the appeal proceedings, the Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands) asks to what extent the Rechtbank has both international and territorial jurisdiction in respect of all of the claims concerned. Central to that issue is the question, as raised in the judgment in
Athenian Brewery and Heineken, (2) whether the claims are closely connected within the meaning of Article 8(1) of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (3) with the result that all of the proceedings may be conducted at the seat of one of the defendants, the ‘anchor defendant’.
II.    Legal framework
4.        The legal framework for the present cases is formed by Article 8(1) of the Brussels I bis Regulation, that reads as follows:
‘A person domiciled in a Member State may also be sued:
(1)      where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’.
III. Facts and requests for a preliminary ruling
A.      Case C‑672/23
5.        Case C‑672/23
concerns the determination of the joint and several liability of the defendants for damage claimed as arising from an infringement of the prohibition on cartels under EU law
in the form of a cartel in relation to underground and submarine cables and related products, works and services.
The Commission established that infringement, by decision of 2 April 2014 (‘the Commission Decision’), (4) in respect of the period from 18 February 1999 to 29 January 2009. Among other things, the cartel entered into agreements on pricing and distributed projects in the context of geographical market sharing, both within and outside the EEA.
6.        The Commission found that Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS had participated in the cartel. In its decision, the Commission found Prysmian SpA, Pirelli
& C. SpA, The Goldman Sachs Group Inc., ABB Ltd. and Nexans SA liable upstream as (indirect) parent companies of the companies participating in the cartel.
7.        However, the claim in the main proceedings is directed not only against the companies mentioned in the Commission Decision but also against other companies that fall into three groups of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all the defendants, only Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all of the shares in the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All of the other defendant companies (collectively ‘Draka and others’) each have their registered office in other locations within and outside the Netherlands.
8.        The claimants in the main proceedings in this case, the Electricity & Water Authority of the Government of Bahrain and others (collectively ‘EWGB and others’), operate high-voltage networks in the Gulf States.
9.        Before the Rechtbank Amsterdam (District Court, Amsterdam), EWGB and others sought a declaration that Draka and others are jointly and severally liable to them for their participation in the cartel. They also sought damages, the amount of which is to be determined in separate proceedings. According to the referring court, the damage in question arose outside the EEA.
10.      In the judgment contested in the main proceedings, the Rechtbank Amsterdam (District Court, Amsterdam) declared itself to lack jurisdiction in respect of the claims against the defendants established outside the Netherlands. EWGB and others lodged an appeal against that judgment. The defendants established inside the Netherlands did not challenge the territorial jurisdiction at first instance. Under Netherlands procedural law, the referring court, the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) must therefore assume that the Rechtbank Amsterdam (District Court, Amsterdam)
has territorial jurisdiction in respect of all of the defendants established in the Netherlands.
B.      Case C‑673/23
11.      Case C‑673/23 likewise concerns the determination of the joint and several liability of the defendants in the main proceedings at first instance for damage which is alleged to have arisen as a result of two infringements of the prohibition of cartels under EU law. These were established by the Autorità garante della concorrenza e del mercato (AGCM) (Italian competition authority) by decision of 17 July 2019 (‘the AGCM decision’). That decision concerns a cardboard sheet cartel which existed from 2 February 2004 to 30 March 2017, and a packaging cartel in existence from 7 September 2005 to 30 March 2017.
12.      The AGCM found that Smurfit Kappa Italia SpA and Toscana Ondulati SpA had participated in the infringements. DS Smith Holding Italia SpA was held liable as the indirect parent company.
13.      However, the claim in the main proceedings at first instance was directed not only against the companies mentioned in the AGCM decision but also against other companies that fall into two groups of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA,
and, on the other hand, Toscana Ondulati SpA. Of those defendants, only Smurfit International BV is established in Amsterdam, Netherlands. All of the other companies (collectively ‘Smurfit and others’) each have their registered office in other locations within and outside the Netherlands.
14.      The claimants at first instance in the main proceedings (hereinafter referred to collectively as ‘Unilever and others’) received packaging material from the cartel participants.
15.      Before the Rechtbank Amsterdam (District Court, Amsterdam), Unilever and others sought a declaration that Smurfit and others are jointly and severally liable to them for their participation in the cartels. They also sought damages, the amount of which is to be determined in separate proceedings.
16.      In
its judgment contested in the main proceedings, the Rechtbank Amsterdam (District Court, Amsterdam)
declared itself to have international and territorial jurisdiction in respect of the claims against the defendants established outside the Netherlands. It also proceeded on the premiss that, irrespective of Article 8(1) of the Brussels I bis Regulation, its territorial jurisdiction in respect of the defendants established in the Netherlands but not in Amsterdam arose from the Netherlands law of civil procedure and from the fact that these parties had entered an appearance in the proceedings before it without raising an objection to its jurisdiction.
Smurfit and others lodged an appeal against that judgment before the Gerechtshof Amsterdam (Court of Appeal, Amsterdam).
C.      Questions referred for a preliminary ruling
17.      Against that background, the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) referred to the Court of Justice the following questions, which are largely identical in both cases (the differences between the questions in the two cases being indicated below):
‘Question (1a)
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 that is not an addressee of a Commission cartel decision (C‑672/23)/cartel decision of a national competition authority (C‑673/23)
but, as an entity alleged to belong to the undertaking within the meaning of the [EU] competition law (the ‘Undertaking’), is held liable downstream (C‑672/23)/upstream (C‑673/23) for the established infringement of the prohibition of 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:
(a)      whether the anchor defendant being held liable downstream (C‑672/23)/upstream (C‑673/23) 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 (C‑672/23)/upstream (C‑673/23) was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;
(c)      (C‑673/23)
whether or not the anchor defendant resides in the Member State where the national competition authority has found (only) an infringement of the prohibition on cartels under EU law on the national market;
(c)      (C‑672/23)/(d)      (C‑673/23)
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)      (C‑672/23)/(e)      (C‑673/23)
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)      (C‑672/23)/(f)      (C‑673/23)
whether or not the anchor defendant and the co-defendant belong to the same Undertaking,
(f)      (C‑672/23)/(g)      (C‑673/23)
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 [judgment of 6 October 2021,
Sumal] (C‑882/19, EU:C:2021:800)? To what extent do the circumstances mentioned in Question
(1a)(a) to (f) (C‑672/23)/(a) to (g) (C‑673/23) 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) (C‑672/23)
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) (C‑672/23)/Question (3) (C‑673/23)
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) (C‑672/23)
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?’
IV.    Proceedings before the Court of Justice
18.      By order of 18 January 2024, the President of the Court of Justice joined Cases C‑672/23 and C‑673/23 for the purposes of the written and oral procedures and the judgment.
19.      EWGB and others, Nexans Nederland, Pirelli & C., ABB, Prysmian Netherlands and others
and Prysmian, The Goldman Sachs Group, DS Smith Italy, Unilever Europe, Smurfit Kappa Europe and others and the European Commission submitted written observations and, on 23 January 2025, presented oral argument on those cases.
V.      Legal assessment
20.      By its first question, which, barring a few details, is identical in both cases, the referring court wishes to ascertain whether, in the circumstances that characterise them, those cases fall within the scope of international jurisdiction under Article 8(1) of the Brussels I bis
Regulation.
21.      The fourth question, which is identical in both cases, seeks to determine whether and, if so, to what extent Article 8(1) of the Brussels I bis Regulation also governs territorial jurisdiction.
22.      The second and third questions referred for a preliminary ruling have to do in both cases with the question of whether and, if so, to what extent the prospects of success of the claim against the anchor defendant must be taken into account in the determination of jurisdiction.
23.      In the view of the defendants, the claims cannot succeed. Consequently, the questions concerning the determination of jurisdiction are not relevant to the decision to be given and, therefore, do not call for an answer at all.
24.      In those circumstances, I shall, after a succinct presentation of the previous case-law on the concept of undertaking under antitrust law and the consequences thereof under the law on jurisdiction, from which the answers to the questions in the present case are for the most part already apparent (A.), look first at the questions concerning the taking into account of the claim’s prospects of success in the examination of jurisdiction (B.), before turning to the questions concerning international jurisdiction (C.) and territorial jurisdiction (D.).
A.      Concept of undertaking under antitrust law and international jurisdiction
25.      The concept of ‘undertaking’ in Article 101 TFEU covers any entity engaged in an economic activity, regardless of its legal status. It thus designates an economic unit even if in law that economic unit consists of several persons, natural or legal. (5) The qualification as an ‘economic unit’ and thus as an ‘undertaking’ legally entails the application of joint and several liability amongst the entities of which the economic unit is made up at the time that the infringement against this provision was committed.(6)
26.      In that context, legally independent persons organised as a group form a single undertaking when they do not decide independently upon their own conduct on the market in question but, having regard, more specifically, to the economic, organisational and legal links between those persons and a parent company, those companies are subject to the effects, to that end, of the actual exercise of that decisive influence, by being run as one. (7)
27.      In the case where a parent company holds (almost) 100% of the shares in the capital of a subsidiary company, there is a rebuttable presumption that the parent company exercises a decisive influence on the economic activity of the subsidiary (‘the presumption of control’), so that an infringement by the latter may be imputed to the former and the former may be held liable for it. (8)
28.      The entities which are required to compensate for the damage caused by a cartel or practice prohibited by Article 101 TFEU are the undertakings, within the meaning of that provision, which have participated in that cartel or that practice. (9)
29.      However, the possibility
for the victim of an anticompetitive practice, in the context of a claim for damages, of invoking the liability of a subsidiary company rather than that of the parent company cannot automatically be available against every subsidiary of the parent company. (10)
30.      Rather, in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company. (11)
31.      In accordance with Article 8(1) of the Brussels I bis
Regulation, a person domiciled in a Member State who is one of a number of defendants may also be sued in the courts for the place where any one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
In that regard, for judgments to be regarded as irreconcilable, it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law. (12)
32.      That condition is fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times. (13)
33.      The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking. (14)
B.      The prospects of success of the claim against the anchor defendants
34.      In order to answer the second question referred for a preliminary ruling, it must be examined whether and, if so, to what extent any success of the claim against the anchor defendant is to be taken into account in the determination of jurisdiction (1.). I shall then look at the issues regarding the substantive examination of the claims against the anchor defendants in the present case that form the subject of the third question referred for a preliminary ruling, in so far as these prove relevant to the determination of jurisdiction (2.).
1.      Taking into account the prospects of success of the claim against the anchor defendant in the examination of jurisdiction
35.      By its second question, which is identical in both cases, the referring court wishes to ascertain whether, in the determination of jurisdiction, account is also to be taken of any success on the part of the claim against the anchor defendant. If so, the referring court wishes to know whether, in the context of that assessment, it is sufficient if the success of the claim cannot be ruled out a priori.
36.      As the Court noted in its judgment in
Athenian Brewery and Heineken, (15) when examining international jurisdiction, the court seised examines neither the admissibility nor the substance of the claim, but only the connecting factors with the State in which that court is situated and
on which its jurisdiction under Article 8(1) of the Brussels I bis
Regulation is based. The aim of legal certainty requires that the court seised must in principle be capable to decide on its own jurisdiction without entering into an examination of the substance of the case. (16)
37.      However, Article 8(1) of the Brussels I bis
Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. (17) That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability. (18)
38.      For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought. (19)
39.      The answer to Question (2) in both cases must therefore be that, in the examination of jurisdiction under Article 8(1) of the Brussels I bis
Regulation, account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.
2.      The prospects of success of the main proceedings in the present cases
40.      Questions (3a) to (3c) in Case C‑672/23 and Question (3) in Case C‑673/23 have to do with the prospects of success of the claims against the anchor defendants in the present cases. (20) Since the referring court is concerned in the main proceedings only with jurisdiction, (21) these questions are relevant to the decision to be given only in so far as they pertain to the determination of jurisdiction.
41.      Below, therefore, I shall discuss only whether the circumstances cited by the referring court (damage outside the EEA (a), application of the presumption of control (b) and recourse to an intermediate holding company (c)) give the claims against the anchor defendants the appearance of being manifestly unfounded.
(a)    Right to damages under EU antitrust law and damage outside the EEA
42.      By Question (3a) in Case C‑672/23, the referring court wishes to ascertain whether the right to damages which any person enjoys under EU antitrust law for an infringement of the EU prohibition on cartels
includes the right to compensation for damage arising outside the EEA. That question springs from the fact that EWGB and others are established and active in the Gulf States and the referring court assumes that the damage suffered by them occurred there. (22)
43.      Contrary to the defendants’ submission, the controversial positions adopted by the parties in the present proceedings show that a claim for compensation for such damage does not seem to have so little prospect of success as to warrant being classified as manifestly unfounded. Rather, it raises a complex legal question calling for in-depth examination.
44.      Thus, the parties are largely agreed to begin with that damage which has occurred outside the EEA qualifies for reimbursement on the basis of the right to damages under Article 101 TFEU only where it is attributable to an infringement of that provision.
45.      However, the point on which they are no longer agreed concerns the question of the extent to which damage occurring outside the EEA is capable of fulfilling that condition. Thus, EWGB and others take the view that the causal link between the damage suffered by them and the infringement of Article 101 TFEU is obvious, since they acquired the cartelised goods directly from the cartel participants. Draka and others, on the other hand, consider that damage occurring in the Gulf States cannot under any circumstances fall within the scope of Article 101 TFEU. For its part, the Commission simply states that, in order to qualify for compensation on that basis, damage must be attributable to an adverse effect on competition in the internal market, without explaining what, in its view, this means in the circumstances of the present case.
46.      Should the main proceedings in Case C‑672/23 go on to entail a substantive examination of the claims for damages pursued by EWGB and others, this would, given the third-country dimension of the facts of that case, have to be preceded by an examination of the applicability of the right to damages under EU antitrust law. In the context of facts with a third-country dimension, that right is available where the relevant private international law of the competent court makes it available. This is in any event not excluded from the outset in the present case, inasmuch as the latter concerns a right arising from a tortious act, in the form of the power cable cartel, (23) that had effects on, inter alia, the territory of the European Union. This is capable of entailing the applicability of Article 101 TFEU according to the private international law of the Member States. (24)
47.      If the right to damages under EU antitrust law is applicable, it falls to be examined whether the conditions governing that right are fulfilled.
48.      This will be the case where there is a causal link between a cartel or practice prohibited under Article 101 TFEU and the occurrence of damage. (25) It is therefore necessary to prove that there has been an infringement of the prohibition laid down in Article 101 TFEU, that damage has occurred and that there is causality between those two circumstances.
49.      An infringement of Article 101 AEUV is present where the practice at issue is covered by the territorial scope of that article. This is true of practices which are either carried on in the EEA or have qualified effects on the EEA. (26) It is common ground that the practice in question here fulfils those conditions, since the power cable cartel entered into pricing agreements and distributed projects in the context of market sharing within and outside the EEA. (27)
50.      Damage which has occurred in a third country can, prima facie, be causally attributed to that practice if it was caused by the implementation of the cartel in the EEA or its effects on the EEA (and thus by the infringement of the then applicable Article 101 TFEU). In the case of damage such as that which EWGB and others claim to have suffered, this would seem to be readily apparent. For, according to the information provided by EWGB and others, that damage arose as a result of the cartel-driven higher prices of goods which they acquired directly from the European cartel participants.
51.      What has not as yet been clarified, however, is the question whether third-country nationals are able to rely on the right to damages under EU antitrust law in order to seek compensation for damage which has occurred outside the EEA.
52.      Thus, according to settled case-law, it is open to any individual to claim damages for any damage caused to him or her, where there is a causal connection between the damage and a cartel or practice prohibited under Article 101 TFEU. (28) That right follows from the fact that Article 101(1) TFEU produces direct effects in relations between individuals and creates rights for those individuals which national courts must protect. (29)
53.      So far as I can tell, however, the Court has not as yet had an opportunity to decide whether and, if so, under what conditions (30) the foregoing also applies to damage occurring in third countries.
54.      In those circumstances, Question (3a), raised by the referring court in Case C‑672/23, must be answered as follows: The fact that damage alleged in a claim for damages under antitrust law before a court of a Member State occurred outside the EEA does not mean that that claim must be classified as manifestly unfounded in the context of the examination of jurisdiction.
(b)    Presumption of control under antitrust law and private enforcement of antitrust law
55.      By Question (3b) in Case C‑672/23 and Question (3) in Case C‑673/23, the referring court asks whether the presumption of control (31) must or may be applied in cartel damages cases.
56.      The Court answered this question in the affirmative in the judgment in
Athenian Brewery and Heineken, (32) which is logical. After all, as the Court has previously made clear, the concept of ‘undertaking’ within the meaning of the EU competition rules, which constitutes an autonomous concept of EU law, cannot have a different scope with regard to the imposition of fines as compared with claims for damages for infringement of those rules. (33)
57.      In the context of Article 8(1) of the Brussels I bis
Regulation, the court may confine itself to verifying that it cannot be excluded a priori that the defendants concerned belong to the same undertaking, in order to be able to declare itself competent.
It must conduct such an examination especially in the case in which a claimant relies on the concept of undertaking under antitrust law, and in particular on the fact that the parent company holds almost all of the subsidiary company’s capital, so that the presumption of control is triggered. (34) A full analysis of whether the companies concerned belong to the same undertaking, on the other hand, does not take place until the substance of the claims is examined, provided that the court seised declares itself competent. (35)
58.      The answer to Question (3b) in Case C‑672/23 and to Question (3) in Case C‑673/23 must therefore be that the rebuttable presumption that a parent company which directly or indirectly holds all or almost all of the capital of a subsidiary company exerts a decisive influence on that subsidiary, may be applied in cartel damages cases.
(c)    Intermediate holding company and the concept of undertaking under antitrust law
59.      Question (3c) in Case C‑672/23 springs from the fact that Draka Holding BV, the anchor defendant in the main proceedings in that case, is a holding company which is being sued downstream for the infringement of the prohibition of cartels committed by its parent company, Prysmian Cavi e Sistemi. (36)
60.      Accordingly, the referring court wishes to ascertain whether such an intermediate holding company, which merely manages and holds shares, is capable of meeting 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 liable). (37)
61.      The economic activity necessary for that specific link is any activity consisting in offering goods or services on a given market. (38)
62.      Considered in isolation, a holding company which merely manages and holds shares is not capable of engaging in such an economic activity. After all, in only holding and managing shares, it does not go so far as to operate on the market in such a way as to offer goods and services.
63.      However, the principles governing the allocation of liability within an economic unit, as summarised at the outset, (39) can be transposed, mutatis mutandis, to the question as to the economic activity of an intermediate holding company such as Draka Holding BV in the present case.
64.      On that basis, the economic activity of the subsidiary
(Prysmian Netherlands BV) of an intermediate holding company
(such as Draka Holding BV) is to be imputed to the holding company where that subsidiary, notwithstanding that it has its own legal personality, does not decide independently upon its own conduct on the market, but, in essence, follows the instructions of the intermediate holding company as parent (known as the ‘controlling holding company’). This must be rebuttably presumed to be true of a parent company which holds all or almost all of the capital of its subsidiary. (40) In the present case, it must thus be presumed that Draka Holding BV, since it holds all of the shares in the capital of Prysmian Netherlands BV, (41) controls that subsidiary and the latter’s economic activity must therefore be imputed to it.
65.      The mere fact that the entity to which the subsidiary’s conduct is imputed is a holding company is not such as to preclude that conduct from being imputed. (42) Its imputation, after all, is based on the fact that, at the time of the cartel offence, the parent
(Draka Holding BV) was able to exert a decisive influence on the business policy of its subsidiary
(Prysmian Netherlands BV). However, such an influence can be exerted just as much by a holding company as it can by any other parent company in control of its subsidiary.
66.      If such a subsidiary (Prysmian Netherlands BV) of a holding company engages in an economic activity, the holding company (Draka Holding BV) participates in any event indirectly in that activity through the influence it exerts on the latter. This holds also true in the case of an intermediate holding company (Draka Holding BV), which is itself subject to the decisive influence exerted by a parent company (Prysmian Cavi e Sistemi) and serves only as a vehicle for the latter to exert influence on the subsidiaries held by Draka Holding BV, in particular Prysmian Netherlands BV. Thus, it is decisive for the question of the responsibility of a holding company (Draka Holding BV) under antitrust law whether the subsidiary (Prysmian Netherlands BV) of that holding company engages in an economic activity which has a specific link to the subject matter of the infringement for which its grandparent company and parent company of the holding company (Prysmian Cavi e Sistemi) has been held liable. (43)
67.      The answer to Question (3c) in Case C‑672/23 must therefore be that the activity of an intermediate holding company (Draka Holding BV) which merely manages and holds shares is capable of having a specific link to the subject matter of an infringement of competition law for which the parent company controlling the intermediate holding company (Prysmian Cavi e Sistemi) is held liable. This is especially the case where a subsidiary of the intermediate holding company, on which the holding company itself exerts a decisive influence (Prysmian Netherlands BV), pursues an economic activity which has a specific link to the subject matter of the infringement committed by the grandparent company (Prysmian Cavi e Sistemi).
C.      International jurisdiction
68.      By Question (1a), which is almost identical in both cases, the referring court asks, in essence, about the criteria for assessing whether the Rechtbank Amsterdam (District Court, Amsterdam) has international jurisdiction in respect of the claims against both the anchor defendants (44) and the various co-defendants because those claims are ‘closely connected’ within the meaning of Article 8(1) of the Brussels I bis
Regulation (1.). Question (1b) seeks to determine whether the foreseeability of the bringing of such a claim is a separate criterion in the application of that provision (2.).
1.      ‘Close connection’ and concept of undertaking
69.      As I explained at the outset, a ‘close connection’ within the meaning of Article 8(1) of the Brussels I bis
Regulation and, therefore, the same situation of fact and law are present, on the one hand, where claims are brought against several undertakings sued for their participation in a joint infringement of Article 101 TFEU. (45)
70.      On the other hand, as I have also explained, such a ‘close connection’ and, therefore, the same situation of fact and law are present where claims are brought against various companies forming part of the same undertaking for a cartel infringement committed by that undertaking. (46)
71.      Taken together, those two starting points mean that, in cases such as those here, in which several companies have participated in a joint infringement of the EU prohibition of cartels, a close connection exists between the claims against those companies and those against all of the companies with which they each form an undertaking. The reason for this is that the infringement is imputed to each part of an undertaking as if each part had committed the infringement itself, (47) and, in such a case, too, therefore, the liability of all the defendants arises from the same facts and legal bases, with the result that the same situation of fact and law is present.
72.      As I have already explained in this regard, when it comes to examining international jurisdiction, it is sufficient for the proposition that the companies concerned belong to the same undertakings not to appear to be excluded a priori. (48)
73.      It is important here, particularly as regards the downstream liability of a subsidiary company for an infringement committed by its parent company (as in Case C‑672/23 here), that the requirement of a specific link between the economic activity of the subsidiary (or, in the case of a holding company, the sub-subsidiary) (49) and the subject matter of the infringement committed by the parent should be fulfilled. The reason for this lies in the ‘functional’ nature of the concept of an economic unit, which always defines itself by reference to a specific infringement. (50)
74.      It is not necessary for the subsidiary or sub-subsidiary of the cartel participants to have itself sold cartelised products directly to the injured parties, as it was in the case in Sumal. (51) Such an additional condition was rightly not laid down in the judgment in that case, because the question as to the existence of an economic unit defined by reference to the specific infringement is not contingent upon its fulfilment. The only decisive criterion is, rather, whether there is a specific link between the economic activity of the subsidiary or sub-subsidiary and the subject matter of the infringement, because, for example, the anti-competitive agreement entered into by the parent or grandparent company concerned the same products as those marketed by the subsidiary or sub-subsidiary company (52) or because the latter is active in the production of those products.
75.      Furthermore, the various other circumstances mentioned by the referring court under Question (1a), in particular the designation of the companies concerned in decisions of the Commission or a national competition authority, are not relevant to the criterion of the presence of a close connection between the claims, per se, but only to the actual proof of the existence of such a connection. (53)
76.      The fact that the claimants acquired cartelised products or services from parts of the defendant undertakings is likewise only a conceivable, but not necessarily a necessary, (54) indication of the existence of damage and of its having been caused by the infringement.
77.      Last but not least, it is to be noted that, when it comes to relying on the concept of undertaking in the course of examining the applicability of Article 8(1) of the Brussels I bis
Regulation, it is not decisive whether the law applicable to the substance of the case, to be determined later, (55) recognises that concept. For the purposes of that examination, after all, it matters only whether the ‘close connection’ is present. That concept must, however, be interpreted independently in the light of the scheme and objectives of Article 8(1) of the Brussels I bis
Regulation. (56) EU law alone is decisive with respect to that independent interpretation.
78.      All things considered, the answer to Question (1a) in both cases must therefore be that claims are closely connected within the meaning of Article 8(1) of the Brussels I bis
Regulation where there are strong indications that the companies against which they are brought are part of undertakings within the meaning of antitrust law which have jointly committed an infringement of the prohibition of cartels laid down in EU law, provided that it cannot be excluded a priori that the defendant companies belong to the undertakings concerned.
2.      ‘Close connection’ and foreseeability
79.      Question (1b), which is identical in both cases, seeks to ascertain what role the foreseeability of the co-defendant’s being sued in the jurisdiction of the anchor defendant plays in the application of Article 8(1) of the Brussels I bis
Regulation.
80.      The foreseeability of jurisdictions is the aim of the rules of jurisdiction contained in the Brussels I bis
Regulation. (57) In other words, those rules intend to make it foreseeable for defendants before which courts they may be sued.
81.      Foreseeability is not therefore an independent criterion that is examined alongside the other elements defining the fulfilment of the provision at issue. It is, rather, a general principle given practical expression through the criteria that fall to be examined. This means that the notions laid down in the Brussels I bis
Regulation must not be interpreted in contradiction therewith. It must therefore be examined in the course of interpreting that provision whether the outcome is compatible with the principle of foreseeability. (58)
82.      At the same time, however, there is no requirement under Article 8(1) of the Brussels I bis
Regulation for the co-defendant him or herself to have specifically foreseen that he or she would be sued in the jurisdiction of the anchor defendant. Rather, abstract foreseeability, in the form of the ability of an informed and reasonable defendant to foresee before which courts he or she might be sued outside his or her State of domicile, is sufficient. (59)
83.      This especially applies where the situations in which there is a ‘close connection’ can be identified by the defendant. In the light of the legal situation laid out in points 25 to 33 of this Opinion, this holds true for actions for damages under antitrust law if a defendant has taken part in a common antitrust infringement as part of an undertaking in the sense of Article 101 TFEU. (60)
84.      In such a situation, a part of an undertaking must be aware that it could be sued at the place of establishment of a part of another undertaking that has taken part in the infringement. This is so because by that participation the relevant part of the undertaking has established a close connection with the other participants.
85.      The principle of foreseeability to be observed in the interpretation of Article 8(1) of the Brussels I bis Regulation does not therefore preclude a finding as to the existence of a ‘close connection’ within the meaning of that provision in cases such as that at issue.
86.      Consequently, the answer to Question (1b) in both cases must be that the foreseeability of the ground of jurisdiction is not a defining element in the determination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, but a general principle that must be observed in the interpretation of every special rule of jurisdiction in that regulation.
D.      Territorial jurisdiction
87.      Questions (4a) to (4c), identical in both cases, seek to determine whether and, if so, to what extent Article 8(1) of the Brussels I bis
Regulation governs territorial as well as international jurisdiction. These questions can be answered together.
88.      By Question (4b), the referring court wishes to ascertain whether Article 8(1) of the Brussels I bis
Regulation
directly and immediately designates the territorially competent court, overruling national law.
89.      That this is the case follows from the wording of that provision: ‘courts for the place where any one of them is domiciled’. This refers exclusively to the court with jurisdiction under national law in respect of the persons established in that place. It excludes courts in the Member State concerned which are to be determined in accordance with other criteria (occurrence of the damage, claimant’s domicile, and so forth).
90.      This has not yet been decided in the context of Article 8(1) of the Brussels I bis
Regulation. However, this wording, which is also present in other provisions of this regulation, is always interpreted in the same way by the Court. If reference is made to the ‘courts of a Member State’,
as in Article 4(1), Article 7(6) or Article 11(1)(a) of the Brussels I bis
Regulation, this designates only international jurisdiction.(61) On the other hand, if reference is made to the ‘courts for the place where …’, as in Article 7(2) to (5), Article 11(1)(b) and Article 18 of the Brussels I bis
Regulation, this designates territorial as well as material jurisdiction of the relevant court. (62)
91.      This difference also resists a comparison of the different language versions. Even if the English version uses the plural ‘courts’, contrary to the German, French and Dutch versions, with the notion ‘for the place where …’, it establishes territorial jurisdiction in the same cases as the other languages. In the provisions that determine only international jurisdiction, it only uses the words ‘courts of the Member State’.
92.      What is more, that interpretation is confirmed by the Report by Mr P. Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. (63) This report also foresees a distinction between ‘courts of a Member State’ and ‘courts for the place where …’ with the respective consequences. (64) Concerning Article 6(1) of this Convention, which is the precursor of Article 8(1) of the Brussels I bis
Regulation, that report specifically states that the court shall be designated ‘for the place where’ any of the defendants is domiciled. (65)
93.      By Question (4a), the referring court wishes to ascertain, in essence, whether there can be more than one anchor defendant at the same time. In particular, that court asks whether it is capable of having jurisdiction in respect of the claim against a co-defendant even in the case where there is no close connection between the claims against the co-defendant and the anchor defendant established in the judicial district of the referring court but there is a close connection between the claims against the co-defendant and another defendant established in the Netherlands.
94.      This question is raised by the referring court only in the event that the anchor defendants in question (66) are incapable of being suitable lead defendants. However, since, in accordance with the foregoing considerations and subject to the examination to be conducted by the referring court, those anchor defendants are
suitable lead defendants and, moreover, territorial jurisdiction in the main proceedings, unless contested by the defendants, is established, (67) this question appears to be hypothetical.
95.      In any event, according to its wording, Article 8(1) of the Brussels I bis
Regulation clearly takes as its point of reference a specific defendant domiciled in the judicial district of the court seised. A co‑defendant domiciled in another judicial district cannot therefore, as anchor defendant, establish the jurisdiction of the court seised.
96.      Next, the referring court wishes to ascertain by Question (4c) whether there is scope under Article 8(1) of the Brussels I bis
Regulation for an internal reference between courts in the Member State concerned, in the case where the court seised does not have jurisdiction in respect of the claim against the anchor defendant.
97.      The Brussels I bis Regulation deals only with international jurisdiction and the recognition of judgments, but not with the internal procedural rules of the Member States. (68) In this regard, therefore, reference must be made to the national rules applicable by the national court, provided that the application of those rules does not impair the effectiveness of the EU rules on jurisdiction. (69) Consequently, a court which considers itself to lack jurisdiction may take up the option to make a reference to another court available under its national procedural law, provided that the effective enforcement of the Brussels I bis Regulation is not restricted as a result.
98.      All things considered, the answer to Question (4c) must therefore be that, under Article 8(1) of the Brussels I bis
Regulation, only a defendant domiciled in the judicial district of the court seised can be an anchor defendant, since that provision directly
governs not only international but also territorial jurisdiction. This does not preclude an internal reference to another court in the same Member State, provided that the effective enforcement of that regulation is not adversely affected as a result.
VI.    Conclusion
99.      On the basis of the foregoing considerations, I propose that the Court of Justice answer the questions from the Gerechtshof Amsterdam
(Court of Appeal, Amsterdam, Netherlands) as follows:
(1a)      Claims are closely connected within the meaning of Article 8(1) of the Brussels I bis Regulation where there are strong indications that the companies against which they are brought are part of undertakings within the meaning of antitrust law which have jointly committed an infringement of the prohibition of cartels laid down in EU law, provided that it cannot be excluded a priori that the defendant companies belong to the undertakings concerned.
(1b)      The foreseeability of the ground of jurisdiction is not a defining element in the determination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, but a general principle that must be observed in the interpretation of every special rule of jurisdiction in that regulation.
(2)      In the examination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.
(3a)      The fact that the damage alleged in a claim for damages under antitrust law before a court of a Member State occurred outside the EEA does not mean that that claim must be classified as manifestly unfounded in the context of the examination of jurisdiction.
(3b)      The rebuttable presumption that a parent company which directly or indirectly holds all or almost all of the capital of a subsidiary company exerts a decisive influence on that subsidiary, may be applied in cartel damages cases.
(3c)      The activity of an intermediate holding company which merely manages and holds shares is capable of having a specific link to the subject matter of an infringement of competition law for which the parent company controlling the intermediate holding company is held liable. This is especially the case where a subsidiary of the intermediate holding company, on which the holding company itself exerts a decisive influence, pursues an economic activity which has a specific link to the subject matter of the infringement committed by the grandparent company.
(4)      Under Article 8(1) of the Brussels I bis Regulation, only a defendant domiciled in the judicial district of the court seised can be an anchor defendant, since that provision directly
governs not only international but also territorial jurisdiction. This does not preclude an internal reference to another court in the same Member State, provided that the effective enforcement of that regulation is not adversely affected as a result.
1      Original language: German.
2      See judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85), and my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798).
3      Regulation of the European Parliament and of the Council of 12 December
2012 (OJ 2012 L 351, p. 1)
(‘the Brussels I bis Regulation’).
4      Commission Decision C(2014) 2139 final, AT.39610 – Power Cables.
5      Judgments of 10 September 2009, Akzo Nobel and Others v Commission
(C‑97/08 P, EU:C:2009:536, paragraphs 54 and 55); of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraphs 47 and 48); and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 41).
6      Judgments of 26 January 2017, Villeroy & Boch v Commission (C‑625/13 P, EU:C:2017:52, paragraph 150), and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 44).
7      See judgment of 12 May 2022, Servizio Elettrico Nazionale and Others
(C‑377/20, EU:C:2022:379, paragraph 108 and the case-law cited there).
8      Settled case-law since the judgment of 10 September 2009, Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536, paragraph 54 et seq.).
9      Judgment of 14 March
2019, Skanska Industrial Solutions and Others
(C‑724/17, EU:C:2019:204, paragraph 32).
10      Judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 46).
11      Judgment of 6 October 2021, Sumal
(C‑882/19, EU:C:2021:800, paragraph 52).
12      Judgments of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 20), and of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 22).
13      Judgments of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 21), and of 13 February 2025, Athenian Brewery and Heineken
(C‑393/23, EU:C:2025:85, paragraph 26).
14      Judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 27).
15      Judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 41).
16      Judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 42); see also my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798,
point 52), and judgments of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337, paragraph 27),
and of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 61).
17      See my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798,
point 59), and, mutatis mutandis, with regard to Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (‘the Brussels I Regulation’), judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 27 and the case-law cited there); with regard to
Article 6(1) of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), see judgment of 27 September 1988, Kalfelis (189/87, EU:C:1988:459, paragraph 9).
18      See, mutatis mutandis, with regard to Article 6(1) of the Brussels I Regulation, judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 29).
19      See, to that effect, with regard to Article 6(1) of the Brussels I Regulation, judgment of 13 July 2006, Reisch Montage (C‑103/05, EU:C:2006:471, paragraph 33), and Opinion of Advocate General Mengozzi in Freeport
(C‑98/06, EU:C:2007:302, point 66). See also my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798, point 59).
20      Draka Holding BV (Case C‑672/23) and Smurfit International BV (Case C‑673/23); see points 7 and 13 of this Opinion.
21      See points 10 and 16 of this Opinion.
22      See points 8 and 9 of this Opinion.
23      See point 5 of this Opinion.
24      See, in the case of Germany, for example, Article 40 (Tort) of the
Einführungsgesetzes zum Bürgerlichen Gesetzbuche (Law introducing the Civil Code) (EGBGB), in the version published
on 21 September 1994 (BGBl. I p. 2494; 1997 I p. 1061), as last amended by Article 15 of the Law of 23 October 2024 (BGBl. 2024 I No 323). See now also Article 6 (Unfair competition and acts restricting free competition) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40) (‘the Rome II Regulation’). That regulation is applicable to only a fraction of the right asserted in the present case. The reason for this is that the damage alleged arose during the period of the cartel from 18 February 1999 to 29 January 2009 (see point 5 of this Opinion). In accordance with Articles 31 and 32 of the Rome II Regulation, however, that regulation is applicable only to events giving rise to damage which occurred after 11 January 2009.
25      Judgments of 20 September 2001, Courage und Crehan (C‑453/99, EU:C:2001:465
paragraph 26); of 13 July 2006, Manfredi and Others (C‑295/04 to C‑298/04, EU:C:2006:461, paragraphs 61
and 63);
and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 34).
26      See judgments of
27 September 1988, Ahlström Osakeyhtiö and Others v Commission (89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraphs 17 and 18); of 9 November 2000, Ingmar (C‑381/98, EU:C:2000:605, paragraph 25); and of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraphs 41 to 49). See also Opinion of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788, paragraph 280 et seq.).
27      See point 5 of this Opinion.
28      Judgment of 12 December 2019, Otis Gesellschaft and Others
(C‑435/18, EU:C:2019:1069, paragraphs 22, 23 and 30 and the case-law cited there); see also recitals 11, 12 and 13 and Article 1(1), Article 2(6) and Article 3(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).
29      Judgment of 28 January 2025, ASG 2 (C‑253/23, EU:C:2025:40, paragraph 60 and the case-law cited there); see also recital 3 of Directive 2014/104.
30      See in this regard, mutatis mutandis, with regard to EU public procurement law, judgments of
22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret
(C‑652/22, EU:C:2024:910, paragraph 39 et seq.), and of 13 March 2025, CRRC Qingdao Sifang and Astra Vagoane Călători (C‑266/22, EU:C:2025:178, points 56 et seq.). In these cases, however, the exclusion of the third-country nationals concerned was provided for by law.
31      According to this, a parent company which holds (almost) 100% of the shares in the capital of a subsidiary company is rebuttably presumed to exert a decisive influence on the latter’s economic activity; see point 27 of this Opinion.
32      Judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 39).
33      Judgments of 14 March
2019, Skanska Industrial Solutions and Others
(C‑724/17, EU:C:2019:204, paragraph 47), and of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 38).
34      See, to that effect, judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraphs 45 and 46); see also my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798, points 46, 47 and 59).
35      See my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798, points 48 to 51).
36      See point 7 of this Opinion.
37      See point 30 of this Opinion.
38      See, to that effect, judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others
(C‑222/04, EU:C:2006:8, paragraph 108).
39      See points 26 to
30 of this Opinion.
40      See, to that effect, judgments of 11 July 2013, Commission v Stichting Administratiekantoor Portielje
(C‑440/11 P, EU:C:2013:514, paragraphs 42 to 44).
41      See point 7 of this Opinion.
42      See, to that effect, judgments of
11 July 2013, Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraph 43), and of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 85 et seq.).
43      It does not appear to be impossible that a specific link between the subject matter of the infringement committed by an operative company and the activity of a holding company can also be established, as the case may be, by the support offered by the holding company directly to the operative company in view of this subject matter (e.g. financial support, fund raising and the like). However, as far as I can see, such elements have not be alleged here.
44      Draka Holding BV (Case C‑672/23) and Smurfit International BV (Case C‑673/23); see points 7 and 13 of this Opinion.
45      See judgments of
21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 21), and of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraph 26), and point 32 of this Opinion.
46      See, to that effect, paragraph 27 of the judgment of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85), cited in point 33 of this Opinion.
47      See judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraphs 42 to 44), and my Opinion in Athenian Brewery and Heineken (C‑393/23, EU:C:2024:798, point 40).
48      See point 57 of this Opinion.
49      See points 64 to 66 of this Opinion.
50      See, in that regard, judgment of 6 October 2021, Sumal
(C‑882/19, EU:C:2021:800, paragraph 46), and Opinion of Advocate General Pitruzzella in Sumal
(C‑882/19, EU:C:2021:293, point 23 et seq.); see, also, Bauermeister, T., ‘Das Unternehmen im europäischen Wettbewerbsrecht’, Neue Zeitschrift für Gesellschaftsrecht, 2022, p. 59 et seq. and p. 66 et seq..
51      Judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraphs 8 to 10).
52      Judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraphs 51 and 52).
53      See, in particular, on the subject of decisions of national competition authorities, judgment of
13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, paragraphs 30 to 32).
54      A claim for damages may exist even where the damage does not arise as a result of the direct or indirect acquisition of products or services from the cartel participants; see, in that regard, judgments of
5 June 2014, Kone and Others
(C‑557/12, EU:C:2014:1317) (concerning ‘umbrella pricing’), and of 12 December 2019, Otis Gesellschaft and Others
(C‑435/18, EU:C:2019:1069) (concerning damage suffered by a public body which granted loans on favourable terms for the purchase of goods forming the subject of the cartel).
55      See, in that regard, point 46 of this Opinion.
56      Judgments of 13 July 2006, Reisch Montage (C‑103/05, EU:C:2006:471, paragraph 29), and of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 16).
57      See, in particular, recitals 15 and 16 of the Brussels I bis
Regulation and judgments of 15 July 2021, Volvo and Others
(C‑30/20, EU:C:2021:604, paragraph 42), and of 29 July 2024, FTI Touristik (International element) (C‑774/22, EU:C:2024:646, paragraph 33).
58      See judgments of
1 December 2011, Painer (C‑145/10, EU:C:2011:798, paragraph 81); of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraph 23); of 5 July 2018, flyLAL-Lithuanian Airlines (C‑27/17, EU:C:2018:533, paragraph 40); and of 29 July 2019, Tibor-Trans
(C‑451/18, EU:C:2019:635, paragraph 34).
59      See, to that effect, Article 6(1) of the Brussels I Regulation: judgment of 13 July 2006, Reisch Montage
(C‑103/05, EU:C:2006:471, paragraphs 24
and 25).
60      See, to that effect, judgments of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, points 23 and 24), and of 13 February 2025, Athenian Brewery and Heineken (C‑393/23, EU:C:2025:85, points 34 and 35).
61      Judgments of 29 July 2024, FTI Touristik (International element) (C‑774/22, EU:C:2024:646, point 42), and of 30 June 2022, Allianz Elementar Versicherung (C‑652/20, EU:C:2022:514, points 37, 38 and 42).
62      Judgments of 3 May 2007, Color Drack (C‑386/05, EU:C:2007:262, point 30); of 15 July 2021, Volvo and Others (C‑30/20, EU:C:2021:604, point 33); of 30 June 2022, Allianz Elementar Versicherung (C‑652/20, EU:C:2022:514, points 37, 38 and 42); and judgment of 29 July 2024, FTI Touristik (International element) (C‑774/22, EU:C:2024:646, point 42).
63      OJ 1979 C 59, p. 1.
64      Report by Mr P. Jenard, p. 22.
65      Report by Mr P. Jenard, p. 26.
66      Draka Holding BV (Case C‑672/23) and Smurfit International BV (Case C‑673/23); see points 7 and 13 of this Opinion.
67      See points 10 and 16 of this Opinion.
68      Judgments of 15 May 1990, Hagen (C‑365/88, EU:C:1990:203, paragraph 17), and of 6 October 2021, TOTO and Vianini Lavori (C‑581/20, EU:C:2021:808, paragraph 68).
69      Judgment of 7 March 1995, Shevill and Others
(C‑68/93, EU:C:1995:61, paragraph 36).