Case C‑352/13

Cartel Damage Claims (CDC) Hydrogen Peroxide SA

v

Akzo Nobel NV and Others

(Request for a preliminary ruling from the Landgericht Dortmund)

‛Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in civil and commercial matters — Regulation (EC) No 44/2001 — Special jurisdiction — Article 6(1) — Action brought against several defendants domiciled in various Member States and which have participated in a cartel found to be contrary to Article 81 EC and Article 53 of the Agreement on the European Economic Area seeking an order for the defendants to pay damages jointly and severally and for disclosure of information — Jurisdiction of the court seised with regard to the other defendants — Withdrawal of the action in relation to the defendant domiciled in the Member State of the court seised — Jurisdiction in tort, delict or quasi-delict — Article 5(3) — Jurisdiction clauses — Article 23 — Effective enforcement of the prohibition of anti-competitive agreements, decisions and concerted practices’

Summary — Judgment of the Court (Fourth Chamber), 21 May 2015

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Jurisdiction clauses contained in contracts for the supply of goods — Action for damages and disclosure of information brought against several undertakings having participated in a cartel found to be contrary to EU law — Court before which an action is brought bound by such a clause derogating from special jurisdiction — Condition — Clause referring to disputes concerning an infringement of competition law

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — Agreement conferring jurisdiction — Contractual jurisdiction clauses — Whether that clause binds on third parties — Condition — Consent of the third party to that clause — Limit — Universal succession of the third party into the rights and obligations of the other party to the contract

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred and place of the causal event — Action for damages and disclosure of information brought against several undertakings that participated in a cartel found to be contrary to EU law — Harmful event having occurred in relation to each alleged victim on an individual basis — Victim having choice of courts before which to bring the action

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — More than one defendant — Action for damages and disclosure of information brought against several undertakings that participated in a cartel found to be contrary to EU law — Withdrawal of the action against the sole co-defendant domiciled in the Member State as the court seised — No effect — Condition — Absence of collusion between the parties

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — More than one defendant — Jurisdiction of the courts of one of the co-defendants — Restrictive interpretation — Condition — Connection — Concept of connection

In order for Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to apply, it is necessary to ascertain whether, between various claims brought by the same applicant against various defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. In that regard, in order 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. That requirement of the existence of the same situation of fact and law is satisfied where the defendants in the main proceedings have participated in a cartel found by the Commission to have amounted to a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement by concluding and performing contracts under the cartel and despite having done so in different places and at different times. (see paras 20, 21)

Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the rule on centralisation of jurisdiction in the case of several defendants, as established in that provision, can apply in the case of an action for damages, and for disclosure in that regard, brought jointly against undertakings which have participated in different places and at different times in a single and continuous infringement, which has been established by a decision of the European Commission, of the prohibition of anti-competitive agreements, decisions and concerted practices provided for under EU law, even where the applicant has withdrawn its action against the sole co-defendant domiciled in the same State as the court seised, unless it is found that, at the time the proceedings were instituted, the applicant and that defendant had colluded to artificially fulfil, or prolong the fulfilment of, that provision’s applicability. First, determining separately actions for damages against several undertakings domiciled in different Member States which, contrary to EU competition law, participated in a single and continuous cartel may lead to irreconcilable judgments within the meaning of Article 6(1) of Regulation No 44/2001. Second, although it is for the court seised of the case to assess the firm evidence that, at the time that proceedings were instituted, the parties concerned had colluded to artificially fulfil, or prolong the fulfilment of, that provision’s applicability, simply holding negotiations with a view to concluding an out-of-court settlement does not in itself prove such collusion. However, it would be otherwise if it transpired that such a settlement had, in fact, been concluded, but concealed in order to create the impression that the conditions of application of Article 6(1) of Regulation No 44/2001 had been fulfilled. (see paras 25, 31-33, operative part 1)

Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of an action for damages brought against defendants domiciled in various Member States as a result of a single and continuous infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area, which has been established by the European Commission, in which the defendants participated in several Member States, at different times and in different places, the harmful event occurred in relation to each alleged victim on an individual basis and each of the victims can, by virtue of Article 5(3), choose to bring an action before the courts of the place in which the cartel was definitively concluded or, as the case may be, the place in which one agreement in particular was concluded which is identifiable as the sole causal event giving rise to the loss allegedly suffered, or before the courts of the place where its own registered office is located. (see para. 56, operative part 2)

See the text of the decision. (see paras 64, 65)