AB ‘flyLAL-Lithunian Airlines’ v Starptautiskā lidosta ‘Rīga’ VAS and ‘Air Baltic Corporation’ AS.
Date: 2018-07-05
26


In order to answer the questions put by the referring court, it should be borne in mind that it is only by way of derogation from the general principle laid down in Article 2(1) of Regulation No 44/2001, which attributes jurisdiction to the courts of the Member State in which the defendant is domiciled, that Section 2 of Chapter II of that regulation makes provision for certain special jurisdictional rules, such as those laid down in Article 5(3) and (5) of that regulation. Given that both the jurisdiction of the courts for the place where the harmful event occurred, within the meaning of Article 5(3) of Regulation No 44/2001, and the jurisdiction of the courts for the place in which a branch, agency or other establishment is situated, as regards disputes arising out of their operations, within the meaning of Article 5(5) of that regulation, constitute rules of special jurisdiction, they must be interpreted in an independent and strict manner, which does not permit an interpretation going beyond the cases expressly envisaged by that regulation (see, to that effect, with regard to operations of a branch, judgment of 22 November 1978, Somafer, 33/78, EU:C:1978:205, paragraphs 7 and 8; and, with regard to tortious liability, judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 25 and case-law cited).
27


According to settled case-law, the rules of special jurisdiction laid down in Article 5(3) and (5) of that regulation are based on the existence of a particularly close linking factor between the dispute and the courts that may be called upon to hear and determine the case, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (see, to that effect, with regard to operations of a branch, judgments of 22 November 1978, Somafer, 33/78, EU:C:1978:205, paragraph 7, and of 6 April 1995, Lloyd’s Register of Shipping, C‑439/93, EU:C:1995:104, paragraph 21; and, with regard to tortious liability, judgments of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 26, and of 17 October 2017, Bolagsupplysningen and Ilsjan, C‑194/16, EU:C:2017:766, paragraph 26).
28


As regards the specific notion of the ‘place where the harmful event occurred’ in Article 5(3) of Regulation No 44/2001, the Court has consistently held that that term is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (see, inter alia, judgments of 19 April 2012, Wintersteiger, C‑523/10, EU:C:2012:220, paragraph 19; of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 45; and of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 28 and the case-law cited).
31


As noted by the Advocate General in point 37 of his Opinion, a distinction must be drawn between, on the one hand, the initial damage resulting directly from the event giving rise to the damage, in which case, the place where such damage occurred may provide a basis for jurisdiction under Article 5(3) of Regulation No 44/2001, and, on the other hand, subsequent adverse consequences which are not capable of providing a basis for jurisdiction under that provision.
32


In that regard, in paragraphs 14 and 15 of the judgment of 19 September 1995, Marinari (C‑364/93, EU:C:1995:289), the Court held that the term ‘place where the harmful event occurred’ cannot be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually arising elsewhere, can be felt. Consequently, it stated that this notion cannot be construed as including the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another State.
35


The Court has previously held, in the context of an alleged infringement of the prohibition on resale outside a selective distribution network resulting from offers, on websites of products covered by that network, that the reduction in the volume of its sales and the ensuing loss of profits incurred by an authorised distributor, constitutes damage capable of providing a basis for jurisdiction under Article 5(3) of Regulation No 44/2001 (see, to that effect, judgment of 21 December 2016, Concurrence, C‑618/15, EU:C:2016:976, paragraphs 33 and 35).
40


The Court finds that, where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 5(3) of Regulation No 44/2001. That approach, based on the alignment of those two elements, is consistent with the objectives of proximity and predictability of the rules governing jurisdiction, since, first, the courts of the Member State in which the affected market is located are best placed to assess such actions for damages and, secondly, an economic operator engaging in anticompetitive conduct can reasonably expect to be sued in the courts for the place where its conduct distorted the rules governing healthy competition.
42


In addition, given that there are a number of defendants in the main proceedings, it should be pointed out that that ground of jurisdiction is also applicable where a number of perpetrators are alleged to have caused the damage, since Article 5(3) of Regulation No 44/2001 allows a court’s jurisdiction over all alleged perpetrators to be established on the basis of the place where the alleged damage occurred, provided that the damage occurred within the jurisdiction of the court seised (see, to that effect, judgment of 3 April 2014, Hi Hotel HCF, C‑387/12, EU:C:2014:215, paragraph 40).
49


Subject to the verifications which it is for the referring court to carry out concerning, in the present case, the relationship between the various instances of anticompetitive conduct in question, it should be noted that, in so far as it appears from the facts in the main proceedings that the anticompetitive agreement allegedly concluded in contravention of Article 101 TFEU constitutes the event giving rise to the alleged damage, jurisdiction to adjudicate on the alleged resulting loss, on the basis of ‘the place of the event giving rise to the damage’ and with regard to all of the parties to that agreement, may lie, by virtue of Article 5(3) of Regulation No 44/2001, with the courts for the place in which the agreement was definitively concluded (see, to that effect, judgment of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 50). In that situation, Latvia may be identified as the place of conclusion of the alleged anticompetitive agreement.
54


Such an assessment must be carried out only for the purpose of identifying the linking factors with the State where that court is situated which are capable of providing a basis for that court’s jurisdiction under Article 5(3) of Regulation No 44/2001 (judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 44) and, in that regard, the referring court must confine itself to a prima facie examination of the case without examining its substance, since, as observed in essence by the Advocate General in points 89 to 92 of his Opinion, elements establishing tortious civil liability, including the event giving rise to the damage, are to be assessed under the applicable national law.
55


A solution making the identification of linking factors dependent on assessment criteria derived from national substantive law would be contrary to the objective of legal certainty since, depending on the applicable law, the actions of a person which took place in a Member State other than that of the court seised may or may not be regarded as the event giving rise to the damage for the purposes of attributing jurisdiction under Article 5(3) of Regulation No 44/2001 (judgment of 16 May 2013, Melzer, C‑228/11, EU:C:2013:305, paragraph 35).
59


In that regard, it should be recalled that the Court has identified two criteria to determine whether legal proceedings relating to the operations of a branch are linked to a Member State. First, the concept of ‘branch’ implies a centre of operations which has the appearance of permanency, such as the extension of a parent body. It must have a management and be materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body. Secondly, the dispute must concern either acts relating to the management of a branch or commitments entered into by that branch on behalf of the parent body, if those commitments are to be performed in the State in which the entities are situated (see, to that effect, judgment of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 48 and the case-law cited).
63


Consequently, as observed by the Advocate General in points 137 and 142 of his Opinion, in the case of actions based on tortious liability, in order for the dispute to be regarded as arising out of the operations of a branch, that branch must have actually participated in some of the actions constituting the tort.