Case C-672/23, Electricity & Water Authority of the Government of Bahrain and Others: Request for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 13 November 2023 — Electricity & Water Authority of the Government of Bahrain and Others v Prysmian Netherlands BV and Others
Date: 2023-11-13
Institutions: Court of Justice
Subjects: cartel, competition law, indemnification, jurisdiction, parent company, restriction on competition, subsidiary








C_202402005EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/2005


18.3.2024





Request for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 13 November 2023 — Electricity & Water Authority of the Government of Bahrain and Others v Prysmian Netherlands BV and Others
(Case C-672/23, Electricity & Water Authority of the Government of Bahrain and Others)
(C/2024/2005)
Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings


Applicants: Electricity & Water Authority of the Government of Bahrain, GCC Interconnection Authority, Kuwait Ministry of Electricity and Water, Oman Electricity Transmission Company SAOC

Defendants: 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

Questions referred







1








a


Is there a close connection within the meaning of Article 8(1) of the Brussels I bis Regulation (1) between:






(i)


on the one hand, a claim against a lead defendant (also known as: anchor defendant) that is not an addressee of a Commission cartel decision but, as an entity alleged to belong to the undertaking within the meaning of European competition law (the ‘Undertaking’), is held liable downstream for the established infringement of the prohibition on 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 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 was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;










(c)


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)


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)


whether or not the anchor defendant and the co-defendant belong to the same Undertaking,










(f)


the plaintiffs have directly or indirectly purchased or received products and/or services from the anchor defendant and/or the co-defendant?


















b


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 Sumal judgment of 6 October 2021 (C 882/19, EU:C:2021:800)? To what extent do the circumstances mentioned in Question la(a) to (f) above make it foreseeable here that the co-defendant would be sued in the court of the anchor defendant?














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?










3








a


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?










b


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?










c


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)?














4








a


When applying Article 8(1) of the Brussels I bis Regulation, can different defendants domiciled in the same Member State be anchor defendants (together)?










b


Does Article 8(1) of the Brussels I bis Regulation directly and immediately designate the relative competent court, overruling national law?










c


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?










(1)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).


ELI: http://data.europa.eu/eli/C/2024/2005/oj
ISSN 1977-091X (electronic edition)