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HR-2019-2206-A
Side 1 
The Supreme Court of Norway - Order - HR-2019-2206-A
Authority The Supreme Court of Norway – Order
Date 2019-11-27
Published HR-2019-2206-A
Keywords Civil process. Jurisdiction. Lugano Convention.
Summary A number of European truck manufacturers had been charged with extensive fines 
by the European Commission for price fixing. Posten Norge AS with Norwegian 
and foreign subsidiaries had purchased a large number of trucks from these 
manufacturers, also from one manufacturer's Norwegian subsidiary. This 
subsidiary was not comprised by the European Commission's decision. Posten 
Norge AS with subsidiaries brought an action before Oslo District Court against all 
manufacturers together with the Norwegian subsidiary invoking Article 6 (1) of the 
Lugano Convention on special jurisdiction. It was held that the defendants were 
jointly and severally liable for the loss that the price fixing had caused for the 
claimants. The Supreme Court, after having conducted an oral hearing, stated that 
the condition in Article 6 (1) of the Lugano Convention that the claims must have 
been closely connected that the provision to apply – the «closeness requirement» – 
assumes that the same legal and factual situation creates a risk of conflicting 
judgments resulting from separate proceedings. The claimant carries the burden of 
proving that the conditions for accumulation are met. In the review, a relatively 
thorough assessment must be made of whether the claims are so closely connected, 
legally and factually, that it is expedient to hear and determine them together. The 
claimant must demonstrate a certain likelihood that the closeness requirement is 
met. A mere contention by the claimant is however not sufficient. That the 
Norwegian subsidiary was not comprised by the European Commission's decision 
could not prevent that the company could be made an anchor defendant. Nor could 
the company be required to have participated on the same terms as the addressees 
of the decision. The condition for proceedings in Article 6 (1) of the Lugano 
Convention were considered met also for the foreign claimants. Against this 
background, the action from all claimants was allowed brought against all 
defendants.
Proceedings The Supreme Court HR-2019-2206-A, (case no. 19-023426SIV-HRET), civil case, 
appeal against order.
Parties I. Bring Express Sverige AB, Bring Cargo Inrikes AB, Bring Linehaul AB, Bring 
Frigo Åkeri AB, Svebol Logistics AB, Bring Åkeri AB and Bring Trucking a.s. 
(Counsel Ole Rasmus Asbjørnsen) v. Iveco S.p.A, Iveco Magirus AG, CNH 
Industrial N.V. and Fiat Chrysler Automobiles N.V. (Counsel Aksel Joachim 
Hageler), Volvo Lastvagnar Ab, Renault Trucks SAS, Volvo Group Trucks 
Central Europe GmbH and AB Volvo (Counsel Kaare Andreas Shetelig), DAF 
Trucks N.V. and DAF Trucks Deutschland GmbH (Counsel Karl Oddmundson 
Wallevik), Daimler AG (Counsel Ole-Andreas Torgersen), MAN Truck & Bus 
Deutschland GmbH, MAN SE and Man Truck & Bus Ag (Counsel Thomas 
Gjølberg Naalsund).
II. Iveco S.p.A, Iveco Magirus AG, CNH Industrial N.V. and Fiat Chrysler 
Automobiles N.V. (Counsel Aksel Joachim Hageler), Volvo Lastvagnar Ab, 

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HR-2019-2206-A
Side 2Renault Trucks SAS, Volvo Group Trucks Central Europe GmbH and AB Volvo 
(Counsel Kaare Andreas Shetelig), DAF Trucks N.V. and DAF Trucks 
Deutschland GmbH (Counsel Karl Oddmundson Wallevik), Daimler AG (Counsel 
Ole-Andreas Torgersen), MAN Truck & Bus Deutschland GmbH, MAN SE and 
Man Truck & Bus Ag (Counsel Thomas Gjølberg Naalsund) v. Bring Cargo AS, 
Bring Linehaul AS, Bring Gudbrandsdalen AS, Bring Transportløsninger AS, 
Posten Norge AS and Espeland Transport AS (Counsel Ole Rasmus Asbjørnsen)
Author Justices Wilhelm Matheson, Henrik Bull, Kine Steinsvik, Knut H. Kallerud and 
Erik Møse.
Last update 2020-02-24
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HR-2019-2206-A
Side 3Translation provided by the Supreme Court of Norway.
(1) Justice Matheson: The case concerns the question whether a claim against foreign defendants due 
to illegal price collusion can be brought before Norwegian courts under Article 6 (1) of the 
Lugano Convention.
(2) The claimants are Posten Norge AS and 12 subsidiaries in the Posten group, hereinafter referred to 
as the Posten companies. Five of the subsidiaries are Norwegian and seven are foreign. The 
foreign claimants are domiciled in Sweden and Slovakia, respectively.
(3) The defendants are companies engaged in the sale of trucks. The companies are part of the truck 
manufacturing groups MAN, Volvo/Renault, DAF, Daimler and Iveco. Among the defendants, 
only Volvo Norge AS is Norwegian with ordinary venue in Norway. The others are foreign 
companies having their ordinary venues in other states bound by the Lugano Convention.
(4) On 19 July 2016, the European Commission made a decision fining the foreign defendants for 
long-term price collusion. Paragraphs 1 and 2 of the decision read:
«(1) This Decision relates to a single and continuous infringement of Article 101 of the Treaty 
on the Functioning of the European Union (' TFEU') and Article 53 of the Agreement on 
the European Economic Area ('EEA Agreement').
(2)The infringement consisted of collusive arrangements on pricing and gross price increases 
in the EEA for medium and heavy trucks; and the timing and the passing on of costs for 
the introduction of emission technologies for medium and heavy trucks required by 
EURO 3 to 6 standards. The infringement covered the entire EEA and lasted from 17 
January 1997 until 18 January 2011.»
(5) Through a settlement with the European Commission, the foreign defendants together were fined 
in excess of EUR 2.9 billion. For the MAN companies, the fine according to paragraph 2 (a) of the 
decision was set at EUR 0. This was partially because the MAN companies had been the first to 
report the infringement in accordance with Commission Notice 2006/C 298/11 on Immunity from 
fines and reduction of fines in cartel cases. According to the Commission decision, these 
companies were therefore granted such immunity.
(6) The foreign Volvo/Renault companies' cooperation with the European Commission also gave rise 
to partial immunity for parts of the infringement period and a reduction of the fine. The same 
applied to certain other companies that had participated in the price collusion.
(7) The defendant Volvo Norge AS is not an addressee of – and thus not covered by – the 
Commission decision, see item 1.2.4, paragraph 19 and Article 1 of its conclusion.
(8) The Posten companies together have purchased a large number of trucks from the defendants. In a 
writ to Oslo District Court of 18 July 2017, they held that the trucks, during the period in which 
the collusion took place, were sold at an excessive price and that the defendants, including Volvo 
Norge AS, were jointly and severally liable for loss sustained by the Posten companies.
(9) Volvo Norge AS agreed before the District Court that it could be sued by all claimants in 
Norwegian courts, see Article 2 of the Lugano Convention. The foreign defendants, however, held 
that they could not be sued in Norway since the conditions for joint proceedings under Article 6 
(1) of the Lugano Convention were not met.
(10) On 1 July 2018, Oslo District Court gave judgment with the following conclusion:
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Side 4«Case no. 17-115740TVI-OTIR/02 may proceed.»
(11) The defendants appealed to Borgarting Court of Appeal, which on 4 December 2018 issued the 
following order after a written hearing:
«1.The action by the foreign claimants (Bring Linehaul AB, Svebol Logistics AB, Bring 
Frigo Åkeri AB, Bring Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB 
and Bring Trucking a.s) v. the foreign defendants (DAF Trucks N.V., DAF Trucks 
Deutschland GmbH, MAN SE, Man Truck & Bus AG, MAN Truck & Bus Deutschland 
GmbH, Daimler AG, AB Volvo, Volvo Group Trucks Central Europe GmbH, Volvo 
Lastvagnar AB, Renault Trucks SAS, CNH Industrial N.V., Fiat Chrysler Automobiles 
N.V, Iveco Magirus AG and Iveco S.p.A) may not proceed.
2.On all other counts, the appeal is dismissed.
3.Costs are awarded in neither the District Court nor the Court of Appeal.»
(12) Both the foreign claimants and the foreign defendants have appealed the order – which partially 
rejected and partially allowed the actions – to the Supreme Court.
(13) On 7 March 2019, the Supreme Court's Appeals Selection Committee decided to refer the entire 
appeal to a division sitting with five justices, see section 5 subsection 2 of the Courts of Justice 
Act.
(14) In my discussion of the parties' submissions, I will present the foreign defendants' arguments first, 
similar to the order during the hearing.
(15) The foreign defendants – MAN SE, Man Truck & Bus AG, MAN Truck & Bus Deutschland 
GmbH, AB Volvo, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB, 
Renault Trucks SAS, DAF Trucks Deutschland GmbH, DAF Trucks N.V., Daimler AG, 
CNH Industrial N.V., Fiat Chrysler Automobiles N.V, Iveco Magirus AG and Iveco S.p.A – 
contend:
(16) Article 6 (1) of the Lugano Convention must be interpreted restrictively. If not, the main rule on 
jurisdiction in Article 2 is undermined.
(17) The assessment of whether the claims are so closely connected as is required under Article 6 (1), 
corresponds to the assessment of procedural contentions under Norwegian law. The claimant's 
contentions regarding the proximity of the claims must be examined before being assumed. 
Substantive contentions are also subject to certain examination under Article 6.
(18) The Court of Appeal's opinion of whether the connection requirement is met is based on the level 
of likelihood that the Posten companies may succeed with a claim against Volvo Norge AS. Such 
an approach has no support in case law.
(19) There is no relevant connection factor between the claims in the case at hand apart from the 
claimants' allegations regarding the liability of the Norwegian defendant. Allegations are not 
sufficient. The Court of Appeal has interpreted Article 6 (1) incorrectly when failing to attribute 
decisive importance to the fact that Volvo Norge AS is not an addressee of the Commission 
decision. Since Volvo Norge AS is not covered by the decision's reference to «a single and 
continuous infringement» of the competition rules, there is no objective connection between the 
claims.
(20) Against this background, companies covered by the decision on the one hand and Volvo Norge 
AS on the other, are not in the same situation of fact and law. Thus, there is no risk that separate 
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Side 5hearings of the claims will result in irreconcilable judgments within the meaning of Article 6 (1).
(21) In addition, as opposed to what the decision shows with regard to the foreign defendants, the claim 
against Volvo Norge AS is based on allegations, and not on evidence. The claimants' attempt to 
establish such a claim by way of extensive requests for evidence is, according to case law, 
incompatible with Norwegian procedural standards.
(22) Since Volvo Norge AS is not covered by the decision, proceedings in Norway have also not been 
foreseeable for the foreign companies.
(23) Under any circumstances, the Court of Appeal has examined the possible liability of Volvo Norge 
AS for a single and continuous infringement of the competition rules with too little intensity and 
thus applied an incorrect threshold under Article 6. Volvo Norge AS is not covered by the 
decision because the European Commission, after a broad investigation, found no evidence of the 
company's participation in the cartel. The Court of Appeal has overlooked the negative evidentiary 
value of this. The criteria for establishing a single and continuous infringement are incorrectly 
interpreted. Liability must be assessed individually for each company, subject to a strict evidence 
requirement. As the threshold for joint proceedings is too low under Article 6 (1), the Lugano 
Convention has been interpreted in breach of the principle that exceptions from the main rule on 
jurisdiction in Article 2 must be interpreted restrictively. The Court of Appeal's general 
application of the law reduces the effectiveness of the Convention.
(24) Nor is there a basis for making Volvo Norge AS the anchor defendant based on alleged strict 
corporate liability under competition law. Volvo Norge AS cannot, based on the competition law 
concept of «undertaking», be held liable for the actions of its parent company Volvo AB or other 
group companies. A claim based on group affiliation does not in any case arise from the same 
situation of fact and law as the other claims in this case.
(25) There is no reason for distinguishing between the claims of Posten Norge AS and the claims of the 
foreign claimants against the foreign defendants, as the Court of Appeal has done in item 1 of its 
conclusion. Accordingly, neither of the types of claims may proceed under Article 6.
(26) If a distinction such as that made by the Court of Appeal is necessary, the order is correct on this 
point.
(27) The foreign defendants have submitted coinciding prayer for reliefs, but so that companies 
belonging to the same group have submitted theirs together.
(28) MAN SE, MAN Truck & Bus AG and MAN Truck & Bus Deutschland GmbH have submitted 
this prayer for relief:
«In the appeal:
1.The Court of Appeal's order item 2 is to be set aside.
2.MAN SE, MAN Truck & Bus AG and MAN Truck & Bus Deutschland GmbH are to 
be awarded costs in all instances.
In the response to the appeal:
1.The appeal is to be dismissed.
2.MAN SE, MAN Truck & Bus AG and MAN Truck & Bus Deutschland GmbH are to 
be awarded costs in all instances.»
(29) AB Volvo, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and Renault 
Trucks SAS have submitted this prayer for relief:
«In the appeal:
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HR-2019-2206-A
Side 61.The Court of Appeal's order item 2 is to be set aside.
2.AB Volvo, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and 
Renault Trucks SAS are to be awarded costs in all instances.
In the response to the appeal:
1.The appeal is to be dismissed.
2.AB Volvo, Volvo Group Trucks Central Europe GmbH, Volvo Lastvagnar AB and 
Renault Trucks SAS are to be awarded costs in all instances.»
(30) DAF Trucks Deutschland GmbH and DAF Trucks N.V. have submitted this prayer for relief:
«In the appeal:
1.The Court of Appeal's order item 2 is to be set aside.
2.DAF Trucks Deutschland GmbH and DAF Trucks N.V. are to be awarded costs in all 
instances.
In the response to the appeal:
1.The appeal is to be dismissed.
2.DAF Trucks Deutschland GmbH and DAF Trucks N.V. are to be awarded costs in all 
instances.»
(31) Daimler AG has submitted this prayer for relief:
«In the appeal:
1.The Court of Appeal's order pkt. 2 is to be set aside.
2.Daimler AG is to be awarded costs in all instances.
In response to the appeal:
1.The appeal is to be dismissed.
2.Daimler AG is to be awarded costs in all instances.»
(32) CNH Industrial N.V., Fiat Chrysler Automobiles N.V, Iveco Magirus AG and Iveco S.p.A have 
submitted this prayer for relief:
«In the appeal:
1.The Court of Appeal's order item 2 is to be set aside.
2.CNH Industrial N.V., Fiat Chrysler Automobiles N.V, Iveco Magirus AG and Iveco 
S.p.A are to be awarded costs in all instances.
In response to the appeal:
1.The appeal is to be dismissed.
2.CNH Industrial N.V., Fiat Chrysler Automobiles N.V, Iveco Magirus AG and Iveco 
S.p.A are to be awarded costs in all instances.»
(33) The Norwegian claimants – Posten Norge AS, Bring Cargo AS, Bring Linehaul AS, Bring 
Gudbrandsdalen AS, Bring Transportløsninger AS and Espeland Transport AS – and the 
foreign claimants – Bring Linehaul AB, Svebol Logistics AB, Bring Frigo Åkeri AB, Bring 
Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB and Bring Trucking a.s. – 
contend:
(34) A precondition for a risk of irreconcilable judgments within the meaning of Article 6 (1), is that 
the claims arise from the same situation of fact and law. A difference in the evidentiary situation 
does not, in our case, constitute any difference in the factual situation. The defendants could 
nonetheless foresee that they risked being sued in a Convention State where at least one of them is 
domiciled.
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Side 7(35) The claims against the foreign defendants and against Volvo Norge AS are sufficiently closely 
connected. No specific degree of likelihood of the claim against Volvo Norge AS succeeding is 
required. When deciding the jurisdiction issue, the claimant's allegations must be taken into 
account without further assessment. This is a firm principle under Norwegian procedural law and 
corresponds to CJEU case law. Case law on the assessment of contract venue is not transferable to 
Article 6 (1) and the criteria for establishing connected claims. Consequently, the Court of 
Appeal's assessment of whether the claims are likely to succeed is more extensive than necessary 
to consider the issue of joint proceedings.
(36) All the defendants have, in contravention of the prohibition against cartels in Article 53 of the 
EEA Agreement and Article 101 of the Treaty of the Functioning of the European Union – TEUF 
– participated in the same price collusion. For that reason alone, the claims in the present case 
arise from the same situation of fact and law.
(37) The CJEU judgment in Case C-352/13 CDC does not prevent a claim against a non-addressee of a 
Commission decision on price fixing from being heard together with a claim against the 
addressees. This is confirmed by numerous English rulings on claims against anchor defendants 
that have not been subject to a Commission decision.
(38) Volvo Norge AS must have known about the collusion and participated in or contributed to its 
implementation. Companies that jointly cause harm by infringing the competition rules will be 
jointly and severally liable for the harm.
(39) The Norwegian Volvo company is nonetheless part of the Volvo group constituting one 
undertaking. The term «undertaking» under competition law implies that no legal entities within 
the undertaking may claim themselves exempt from liability for lack of knowledge of the 
infringement.
(40) Posten Norge AS, Bring Cargo AS, Bring Linehaul AS, Bring Gudbrandsdalen AS, Bring 
Transportløsninger AS, Espeland Transport AS, Bring Linehaul AB, Svebol Logistics AB, Bring 
Frigo Åkeri AB, Bring Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB and Bring 
Trucking A.S. have submitted this prayer for relief:
«1.In the appeal from the foreign Posten companies:
The action from Bring Linehaul AB, Svebol Logistics AB, Bring Frigo Åkeri AB, Bring 
Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB and Bring Trucking A.S. 
is to be allowed.
2.In the appeal from the defendants:
The appeal is to be dismissed.
3.In both cases:
Posten Norge AS, Bring Linehaul AB, Bring Cargo AS, Bring Transportløsninger AS, 
Bring Gudbrandsdalen AS, Espeland Transport AS, Bring Linehaul AB, Svebol Logistics 
AB, Bring Frigo Åkeri AB, Bring Åkeri AB, Bring Express Sverige AB, Bring Cargo 
Inrikes AB and Bring Trucking A.S. are to be awarded costs in the District Court, the 
Court of Appeal and the Supreme Court.»
(41) The case is before the Supreme Court is similar to that before the District Court and the Court of 
Appeal.
(42) My view
(43) The issue at hand
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Side 8(44) The issue at hand is whether the Posten companies' claim against Volvo Norge AS and the same 
companies' claim against the foreign defendants are «so closely connected» that they may be heard 
together in the court of the Norwegian Volvo company, Oslo District Court, see Article 6 (1) of 
the Lugano Convention.
(45) The Supreme Court's jurisdiction
(46) In item 2 of its order, the Court of Appeal stated that the conditions for a joint hearing are met for 
the Norwegian Posten companies' claim against the foreign defendants and agreed – like the 
District Court – to hear the case on this point. This has been appealed by the foreign defendants by 
way of a second-tier appeal. The Supreme Court's jurisdiction after a second-tier appeal is limited, 
see section 30-6 of the Dispute Act. In connection with an appeal against the application of the 
law, like here, the jurisdiction is limited to «the general legal interpretation of a written legal rule», 
see section 30-6 (c) of the Dispute Act. It is generally accepted in the legal world that the term 
«written legal rule» also includes international conventions, see for instance the Supreme Court 
judgment HR-2018-869-A paragraph 68. The Supreme Court may, for this part of the case, only 
consider the Court of Appeal's general understanding of Article 6 (1) of the Lugano Convention.
(47) The Court of Appeal concluded in item 1 of its order – unlike the District Court – that the 
conditions for a joint hearing are not met for the foreign Posten companies' action against the 
foreign defendants. It therefore refused to hear this part of the case. The foreign Posten companies 
have appealed against the refusal to hear the claim against the foreign defendants. In this particular 
issue, the Supreme Court has full jurisdiction, see section 30-6 (a) of the Dispute Act.
(48) General comments on Article 6 (1) of the Lugano Convention
(49) According to section 4-8 of the Dispute Act, the Lugano Convention applies as Norwegian law. In 
an area like this, where the Convention applies as law – so-called sector monism – the provisions 
therein on international venue replace, within their scope, the same provisions in the Dispute Act, 
see also HR-2018-869-A paragraph 70 on the Convention's prevalence as lex specialis.
(50) When interpreting the Convention's rules, «due consideration» must be had to CJEU judgments 
and judgments from national courts dealing with Regulation 44/2001 – Brüssel I – on which the 
Convention is based, see the Supreme Court judgment Rt-2015-129 paragraph 24 Arrow. To the 
extent the provisions are similar, the same must apply to Regulation 1215/2012, which in the EU 
has replaced Regulation 44/2001. Article 8 (1) in the new Regulation corresponds to Article 6 (1) 
of the Lugano Convention.
(51) The starting point under Article 2 (1) is that persons domiciled in a state bound by the Convention 
«shall, whatever their nationality, be sued in the courts of that State». Likewise, under Article 60 
of the Convention, a legal person is domiciled at the place where it its statutory seat, central 
administration or principal place of business. A foreign national may consequently sue Volvo 
Norge AS in Norway, see also the general provisions on ordinary venue in section 4-4 of the 
Dispute Act.
(52) Article 6 (1) is an exception from the main rule in Article 2 and reads:
«A person domiciled in a State bound by this Convention 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;»
(53) The condition that «the claims are so closely connected» that it is expedient to hear and determine 
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Side 9them together to «avoid the risk of irreconcilable judgments resulting from separate proceedings» 
is often referred to as the «connection requirement».
(54) The state of the law when it comes to Article 6 (1) is summarised in the CJEU judgment 21 May 
2015 in Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA – hereinafter only 
CDC. In my discussion, I will use this judgment as a starting point.
(55) The CJEU establishes in CDC paragraph 16 et seq. that the provision «must be interpreted 
independently, by reference to its scheme and purpose». This implies that it is the provisions and 
the system of the Convention – and not of national law – that must form the basis for 
interpretation.
(56) Furthermore, in paragraph 18, it is pointed out that Article 6 (1) is a special rule derogating from 
the principle stated in Article 2. The provision «must be strictly interpreted and cannot be given an 
interpretation going beyond the cases expressly envisaged by that regulation».
(57) The objective of joint proceedings is to avoid the risk of irreconcilable judgments that may arise 
from separate hearings. In paragraph 20 this is described as ascertaining whether «there is a 
connection of such a kind» between the claims that may create such a risk. The following is also 
set out in the same paragraph:
«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.»
(58) It is thus required that the same situation of fact and law creates a risk of diverging judgments if 
the claims are heard separately. According to paragraph 23, a difference in legal basis due to 
differences in the individual Member State's choice of law rules «does not, in itself, preclude the 
application of Article 6 (1) ..., provided that it was foreseeable by the defendants that they might 
be sued in the Member State where at least one of them is domiciled».
(59) The specific situation in CDC was that the European Commission found that the defendants had 
participated in a «single and continuous infringement» of the prohibition of cartel in Article 81 EC 
and Article 53 of the EEA Agreement, cf. paragraph 10. Differences in the rules of private 
international law could thus not prevent application of Article 6 (1), as the defendants «[i]n those 
circumstances ... could have expected to be sued in the courts of a Member State in which one of 
them is domiciled», see paragraph 24.
(60) In paragraph 28, the CJEU states that «where claims brought against various defendants are 
connected» a joint hearing may be held «without there being any further need to establish 
separately that the claims were not brought with the sole object of ousting the jurisdiction of the 
courts of the Member State where one of the defendants is domiciled». The same is set out in other 
judgments, see for instance the minority's reference in the Supreme Court judgment to HR-2018-
869-A paragraph 130 to the CJEU judgment 11 October 2007 in Case C-98/06 Freeport paragraph 
51-54. In this judgment, the minority establishes that
«as long as the claims are so closely connected that it is expedient to hear and determine 
them together to avoid irreconcilable judgments, there cannot be yet another requirement 
that the co-defendants must not have been joined in the case only to prevent that their 
cases are decided by a different court.»
(61) Hence, there is no place for theory of misuse once the connection requirement in Article 6 (1) has 
been met. The majority had no reason to address the issue.
(62) The claimant carries the burden of proving that the criteria for a joint hearing are satisfied, see the 
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Side 10CJEU judgment 13 July 2006 in Case C-539/03 Roche paragraph 39. This is for the referring court 
to assess, see the CJEU judgment 1 December 2011 in Case C-145/10 Painer paragraph 83.
(63) The jurisdiction principle in Article 6 (1)
(64) I will now discuss the principle for establishing whether the connection requirement in Article 6 
(1) has been met; that is, the norm for determining whether «the claims are so closely connected» 
as the provision requires.
(65) In Norwegian civil procedure, when deciding whether to hear a claim, the court must «rely on the 
parties' allegations regarding the factual circumstances and legal rules on which the claim is 
based», see the Supreme Court ruling HR-2018-1463-U paragraph 25. This paragraph also states:
«However, the court is to consider the allegations when they do not concern the tenability 
of the substantive claim submitted, but are merely significant to determine whether the 
conditions for proceedings have been met, see Schei, Tvisteloven [the Dispute Act], 
Commentary, 2nd edition 2013 page 51-52, Rt-2006-209 paragraph 15 and Rt-2006-220 
paragraph 18.»
(66) In the Supreme Court judgment HR-2019-997-A paragraph 58, it is expressed in the same manner 
that the court relies on allegations regarding the merits of the case, «but not on whether procedural 
criteria are otherwise met». In other words, allegations regarding the procedure must be 
considered by the court.
(67) There is no case law on principles for assessing whether the procedural criterion in Article 6 (1) of 
the Lugano Convention that the claims must be «closely connected» is satisfied. However, in Rt-
2015-129 Arrow, the Supreme Court dealt with a similar issue concerning the determination of 
international venue under Article 5 (3) of the Convention in matters relating to tort.
(68) In Arrow paragraph 27, it is set out that in actions forcing the defendants to defend themselves 
outside of their domicile state, the claimant's contentions may not automatically be relied on to 
decide the jurisdiction of the court in question. A reference is made to CJEU's statement with 
regard to Article 5 (1) that the court may examine «the essential preconditions for its jurisdiction, 
having regard to conclusive and relevant evidence adduced by the party concerned, establishing 
the existence or the inexistence of the contract» see the CJEU judgment 4 March 1982 in Case C-
38/81 Effer paragraph 7, see also the CJEU judgment 28 January 2015 in Case C-375/13 Kolassa 
paragraph 61.
(69) Furthermore, it follows from Arrow paragraph 29 that, according to Supreme Court case law, «a 
relatively extensive hearing» is conducted to determine whether the court has territorial 
jurisdiction under the Lugano Convention. It is stated that this «at least mainly corresponds to 
practice during an ordinary hearing in Norwegian civil procedure, see section 4-5 of the Dispute 
Act on venues that may be elected by the claimant». In paragraph 30, this is specified as follows:
«What is expressed here does not imply that the claimant in a case dealing with whether 
the claim should be heard must present evidence of the merits of the case. In a dispute on 
rights to real property governed by Norwegian law, it is thus sufficient that the claimant 
substantiates that the dispute concerns real property at the place where the action is 
brought; next, it must be determined whether the claim for ownership may be heard. The 
Committee assumes that the principle is the same under the Lugano Convention ...»
(70) In the Supreme Court judgment Rt-2008-1207 paragraph 16 – which concerns Article 5 (1) of the 
Lugano Convention on matters relating to a contract – it is stated that «it is presumably sufficient 
with a certain substantiation» of the actual existence of a contractual obligation. Thus, whether or 
not one is dealing with a «matter relating to a contract», is here a criterion for jurisdiction.
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Side 11(71) Against this background, I conclude that when determining the international venue under Article 5 
(1) of the Convention on matters relating to a contract or Article 5 (3) on matters relating to tort, 
the jurisdiction issue is assessed relatively thoroughly; more accurately: an assessment of whether 
the mentioned criteria for proceedings can be satisfied to a certain extent. Hence, allegations 
regarding jurisdiction are not taken into account without an assessment. Some substantiation is 
required also when the issue is disputed. However, this does not entail that the court is to consider 
whether the claim is likely to succeed. The threshold will prevent that allegations are created 
primarily to establish jurisdiction.
(72) It is hard to see why the assessment of the procedural criterion that «the claims are so closely 
connected» as required in Article 6 (1), should derogate much from the assessment of the same 
under the options in Article 5.
(73) The CJEU judgment Freeport from 2007 supports this. In paragraph 41, the following is stated 
regarding the assessment under Article 6 (1):
«It is for the national court to assess whether there is a connection between the different 
claims brought before it, that is to say, a risk of irreconcilable judgments if those claims 
were determined separately and, in that regard, to take account of all the necessary factors 
in the case-file, which may, if appropriate yet without its being necessary for the 
assessment, lead it to take into consideration the legal bases of the actions brought before 
that court.»
(74) Related statements are found in Painer from 2011. There, the CJEU assessed whether actions 
mostly concerning similar violations of national copyright law, could be heard jointly under 
Article 6 (1). In paragraph 83, the following is stated with regard to the assessment:
«It is, in addition, for the referring court to assess, in the light of all the elements of the 
case, whether there is a connection between the different claims brought before it, that is 
to say a risk of irreconcilable judgments if those claims were determined separately. For 
that purpose, the fact that defendants against whom a copyright holder alleges 
substantially identical infringements of his copyright did or did not act independently may 
be relevant.»
(75) The main point of both statements is that the question of a joint hearing under Article 6 (1) must 
be determined in light of «all necessary factors in the case-file». These formulations express, in 
content, the same. In my opinion, both correspond to the Supreme Court's statement in Rt-2015-
129 Arrow paragraph 29 that a «relatively thorough assessment» is required to determine whether 
a case falls within the scope of territorial jurisdiction under the Lugano Convention.
(76) As far as I can see, the statements in Freeport and Painer imply that the intensity of Norwegian 
courts' assessment of allegations regarding the requirement in Article 6 (1) cannot be weaker than 
the assessment under Article 5 (3). It is hard to see why allegations that «the claims are so closely 
connected» that there is a risk of irreconcilable judgments resulting from separate proceedings 
should be assessed less thoroughly than allegations that a case concerns «tort». The implication of 
Article 6 (1) is that it must be assessed whether there is a likelihood that the claim against the 
anchor defendant, legally and factually, is as connected as the claimant maintains. If the claimant's 
allegation to this effect should be taken into account unassessed, it would contravene the 
instruction in CDC paragraph 18 that Article 6 (1) must be strictly interpreted to avoid that the 
main rule in Article 2 on court of domicile is undermined.
(77) Summary of the procedural criterion
(78) Under Article 6 (1), a relatively exhaustive assessment must be made of whether the «claims are 
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Side 12so closely connected», legally and factually, that it is expedient to hear and determine them 
together «to avoid the risk of irreconcilable judgments resulting from separate proceedings». It is 
sufficient that the claimant demonstrates a certain likelihood that such a connection exists.
(79) The significance of the Commission decision
(80) The Court of Appeal has assumed that CDC does not preclude a joint hearing, even if some 
defendants are not addressees of the European Commission's decision on a single and continuous 
of the breach of the competition rules. The following is set out in the order:
«Although the anchor defendant in CDC was the addressee of the Commission decision, 
the Court of Appeal cannot see that premise 24 in that ruling can be interpreted 
antithetically to mean that the requirement of foreseeability is not met for others allegedly 
liable for the breach who are not registered as addressees of the Commission decision. The 
claims in CDC were directed only towards addressees of the decision, so that the issue in 
the case at hand was not relevant in that case.»
(81) As I understand the foreign defendants, they contend that CDC indicates that the absence of a 
Commission decision against Volvo Norge AS precludes a joint hearing of claims that are based 
on such a decision; thus, a necessary objective connective factor lacks between the claims.
(82) I do not endorse this reading of CDC. In CDC, all defendants were covered by a Commission 
decision concerning infringement of the competition rules. Differences in the legal bases for the 
claims against the defendants did not preclude a joint hearing, «provided that it was foreseeable by 
the defendants that they might be sued in the Member State where at least one of them is 
domiciled». In paragraph 24, the following is stated:
«That latter condition is fulfilled in the case of a binding decision of the Commission 
finding there to have been a single infringement of EU law and, on the basis of that 
finding, holding each participant liable for the loss resulting from the tortious actions of 
those participating in the infringement.»
(83) It follows from this that the requirement of being able to foresee a risk of being sued is met when 
the decision concerns «a single infringement». However, the statement does not preclude that the 
risk of being sued for a single infringement of the competition rules may also be foreseen in other 
cases; that is, in cases where such a decision is not present. Here, CJEU expresses the positive 
only, and not the negative.
(84) This interpretation is supported by the fact that EU and EEA citizens according to general case 
law have a right to direct enforcement of the European competition rules, see for instance the 
CJEU judgment 14 March 2019 in Case C-724/17 Skanska paragraph 24. There, it is pointed out 
that Article 101 and Article 102 TFEU, corresponding to the EEA Agreement's Articles 53 and 54, 
«produce direct legal effects in relations between individuals and directly create rights for 
individuals which national courts must protect». In the CJEU judgment 24 October 2018 in Case 
C-595/17 Apple paragraph 35, it is expressly stated that the right to claim damages «prejudiced by 
an infringement of competition law rules to seek compensation for the harm suffered is 
independent of the prior finding of such an infringement by a competition authority».
(85) Here, I add that it is not the decision in itself that will constitute the basis for damages for the 
addressees thereof, but the infringements the enforcement body through its decision finds that the 
companies have committed on the same occasion. In that case, it is the claimant that carries the 
burden of proving that companies other than the addressees of the decision have committed 
similar infringements relating to the same case – with the challenges this might entail to a 
defendant that is not an addressee of any Commission decision.
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Side 13(86) Against this background, the Court of Appeal has based its ruling on a correct opinion of the law 
when not considering the absence of a Commission decision against Volvo Norge AS to be an 
independent obstacle for making the company the anchor defendant.
(87) The assessment of whether «the claims are as closely connected» as required under Article 6 (1)
(88) After an overall assessment, the Court of Appeal has concluded that the Norwegian Posten 
companies «to a reasonable extent have substantiated the allegation that Volvo Norge AS and the 
other defendants are jointly and severally liable for infringement of the competition rules». It has 
therefore found that the conditions for joint proceedings against the foreign defendants are met 
with regard to the claim against Volvo Norge AS.
(89) I find that the Court of Appeal has taken a correct legal starting point when it comes to criteria for 
hearing when stating that the allegation that Volvo Norge AS is jointly and severally liable is not 
sufficient, but that the claimant must substantiate such an allegation to a reasonable extent – also 
formulated as a requirement of «a certain substantiation», as I have previously accounted for.
(90) The foreign defendants find, however, that the Court of Appeal's individual assessment reflects an 
incorrect opinion of the law with regard to the criteria for establishing a single and continuous 
infringement of the competition rules.
(91) The Supreme Court's jurisdiction, as concerns the action from the Norwegian claimants, is limited 
to assessing the Court of Appeal's general interpretation of the law. The Court of Appeal's 
individual application of the law and presentation of facts may, however, shed light on the 
understanding of the rules, see the Supreme Court judgment HR-2017-833-A paragraph 23 with 
further references. I will look further into this next.
(92) It follows from the order that the Court of Appeal has assumed that joint and several liability for a 
single and continuous infringement of the competition rules «does not require extensive 
activities». It also finds that it is not a requirement that «Volvo Norge AS must have participated 
to the 'same extent' as the addressees of the decision». Furthermore, the Court of Appeal finds that 
«Norwegian tort law suggests joint and several liability for companies that have infringed the 
competition rules.»
(93) Next, the following four factors are highlighted – referred to as the «objective factors» – as crucial 
for the assessment of whether the connection requirement is met:
-A large part of the cars procured by the Posten companies have been purchased or leased 
from Volvo Norge AS. The company is thus not a random choice in order to establish a 
venue in Norway.
-Volvo Norge AS has not complied with the Posten companies' requests for presentation of 
the European Commission's Statement of Objections or the public versions of the 
Commission's decision. Thus, the Court of Appeal finds that the requirements for the 
factual basis for the assessment cannot be too strict.
-Volvo Norge AS is a company in the same group as several of the addressees of the 
Commission decision.
-The group relationship supports that the Posten companies' allegation of joint and several 
liability is reasonably substantiated. This applies in particular if persons connected to the 
addressees of the Commission decision have also had board positions and other senior 
positions in Volvo Norge AS. Volvo Norge AS has not presented the requested 
information on a possible cross-representation in the company's governing bodies. This 
lack of clarification must entail that, also on this point, the required factual basis for the 
assessment cannot be too strict.
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Side 14(94) My understanding of the Court of Appeal's overall assessment is that the group relationship with 
companies covered by the Commission decision and the lack of clarification from Volvo Norge 
AS on cross-representation also explain the view that there is a certain likelihood that Volvo 
Norge AS has been familiar with acts forming the basis for the decision. I also understand that this 
could suggest a certain likelihood that the Norwegian company has sold cars with this knowledge. 
The individual finding of facts is not for the Supreme Court to assess. However, the foreign 
defendants have alleged that the lack of presentation of facts cannot be emphasised as long as the 
court has not yet determined whether it has jurisdiction. In my view, the defendants cannot be 
heard in this regard, as the determination of jurisdiction requires a certain substantiation of the 
proximity of the claims as required under Article 6 (1). Based on the principle of free assessment 
of evidence, the court will, in a larger perspective, be free to emphasise that presentation of the 
requested information on board membership could have shed light on the issue. However, the 
Supreme Court does not have jurisdiction to review the individual assessment on this point either.
(95) As for the principle for the assessment of whether a contention of joint and several liability for a 
single and continuous infringement is substantiated to a reasonable extent, the foreign defendants 
have referred among others to the CJEUs judgment 26 September 2018 in Case C-99/17 P 
Infineon. It is claimed that this judgment shows that the Court of Appeal, in its assessment, has 
applied an incorrect principle. According to the judgment's paragraph 172, such liability requires 
evidence
«that the undertaking intended, through its own conduct, to contribute to the common 
objectives pursued by all the participants and that it was aware of the offending conduct 
planned or put into effect by other undertakings in pursuit of the same objectives or that it 
could reasonably have foreseen it and was prepared to take the risk».
(96) In my opinion, the Court of Appeal's view that limited activities are required to establish joint and 
several liability does not contravene CJEU case law stating that such liability necessitates a 
planned and illegal conduct with the knowledge that the other undertakings have pursued the same 
objectives. Even a low level of activity may take place on an informed basis and be carried out 
according to specific plans. The intensity of assessment promoted by the foreign companies 
therefore exceeds what «a certain substantiation» requires. When assessing the criteria for hearing, 
it is not necessary for the court to consider whether or not Volvo Norge AS has committed acts 
that may entail joint and several liability.
(97) Finally, the Court of Appeal has pointed out that the claim against the foreign defendants concerns 
infringement comprising the entire EEA. Therefore, the foreign defendants have been able to 
foresee legal action from customers in any EEA State, irrespective of whether the relevant 
customers are domiciled in the state of the addressees of the Commission decision. In my view, 
the Court of Appeal has applied a correct legal starting point for its assessment of foreseeability. 
As mentioned, the Supreme Court does not have jurisdiction to review the individual assessment.
(98) The foreign defendants' appeal against the Court of Appeal's order stating that the connection 
requirement is met for the Norwegian Posten companies is thus dismissed.
(99) The Posten companies' alternative basis of claim – the corporate liability
(100) The Posten companies have as an alternative basis of claim submitted that Volvo Norge AS is 
liable solely due to its group relationship with companies liable for damages according to the 
Commission decision.
(101) The foreign defendants have – in addition to disputing the substantive contents of the submission 
– alleged that the alternative basis for the claim does not derive from the same situation of fact and 
law as the other claims in the matter.
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HR-2019-2206-A
Side 15(102) As I have concluded that the connection requirement is met as regards possible joint and several 
liability, Oslo District Court is established as an international venue for the foreign defendants in 
the relevant case. I cannot see that it is a procedural condition under Article 6 (1) that the 
alternative basis for the claim, too, must meet the connection requirement in the provision. Such a 
split will raise unclear issues regarding litispendence and legal force and generate high litigation 
costs. Therefore, it is not necessary to consider the objection made.
(103) The foreign Posten companies' claim against the foreign defendants
(104) In its judgment, the Court of Appeal has distinguished between the Norwegian and the foreign 
claimants. The distinction is made because the foreign Posten companies – that have not 
purchased cars from the Norwegian company – «have not adequately substantiated that their claim 
against Volvo Norge AS is as closely connected with the foreign claimants' claim against the 
remaining 14 foreign defendants» that the connection requirement is met.
(105) Article 6 (1) regulates joint proceedings on the defendant's side. The actions to be joined concern 
Volvo Norge AS's alleged joint and several liability as a participant in a single and continuous 
infringement. The allegation of joint and several liability means it is thus not necessary to direct 
the claim against the cartel participant from which the trucks were purchased. Thus, there is no 
basis for making a distinction such as that made by the Court of Appeal.
(106) However, the Court of Appeal's conclusion not to hear the case implies that the Supreme Court 
has full jurisdiction to clarify whether the procedural conditions have been met for the foreign 
Posten companies' action against the foreign defendants.
(107) The Commission decision contains a more detailed description of the collusive arrangement, its 
form and procedure. It also describes that the collusion and exchange of information has taken 
place at a high level within the respective organisations, see for instance paragraph 51 on 
participation in meetings during the period 1997-2004 «involving senior managers of all 
Headquarters». In light of this and the fact that the Volvo companies have not presented 
information to clarify the claimants' submissions regarding cross-representation, I can only 
conclude that the Court of Appeal's requirement of a certain substantiation of the procedural 
criteria with regard to the action from the Norwegian claimants also applies to the action from the 
foreign claimants.
(108) Against this background, the action from the foreign claimants may proceed.
(109) Conclusion and costs
(110) The appeal from the foreign claimants has succeeded, while the appeal from the foreign 
defendants has not. The practical implication of this is that a Norwegian court has territorial 
jurisdiction to hear the Posten companies' action against all the defendants, as alleged in the 
Posten companies' writ of summons.
(111) The Posten companies have submitted a claim for costs. Based on the conclusion I have reached, 
the Posten companies have fully succeeded in the question whether the actions may proceed. 
According to section 20-8 subsection 2 second sentence of the Dispute Act, cf. section 20-2, the 
company is thus generally entitled to compensation for costs in the hearing of the rejection issue 
before all instances. However, the case has raised several issues of principle with regard to the 
application of Article 6 (1) of the Lugano Convention on international venue. This is a question 
not previously considered by the Supreme Court, and the defendants have had reason to obtain 
clarification. Consequently, I find that an exception from the main rule is justified, see section 20-
2. Costs are therefore not awarded in any instance.
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HR-2019-2206-A
Side 16(112) I vote for this
ORDER:
1.In the appeal from the foreign Posten companies:
The action from Bring Linehaul AB, Svebol Logistics AB, Bring Frigo Åkeri AB, Bring 
Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB and Bring Trucking a.s. is 
allowed.
2.In the appeal from the foreign defendants:
The appeal is dismissed.
3.In both cases:
Costs are not awarded in any instance.
(113) Justice Bull: I agree with Justice Matheson in all material respects and with his conclusion.
(114) Justice Steinsvik: Likewise.
(115) Justice Kallerud: Likewise.
(116) Justice Møse: Likewise.
(117) Following the voting, the Supreme Court gave this
ORDER:
1.In the appeal from the foreign Posten companies:
The action from Bring Linehaul AB, Svebol Logistics AB, Bring Frigo Åkeri AB, Bring 
Åkeri AB, Bring Express Sverige AB, Bring Cargo Inrikes AB and Bring Trucking a.s. is 
allowed.
2.In the appeal from the foreign defendants:
The appeal is dismissed.
3.In both cases:
Costs are not awarded in any instance.