Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Evonik Degussa GmbH and Others.
Date: 2015-05-21
16. In order to answer that question, it should be borne in mind from the outset that Article 6(1) of Regulation No 44/2001 must be interpreted independently, by reference to its scheme and purpose (see judgment in Reisch Montage , C‑103/05, EU:C:2006:471, paragraph 29).
17. The rule of jurisdiction laid down in Article 6(1) provides that a person may, where he is one of a number of defendants, be sued 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 (judgments in Painer , C‑145/10, EU:C:2011:798, paragraph 73, and in Sapir and Others , C‑645/11, EU:C:2013:228, paragraph 40).
18. That special rule, because it derogates from the principle stated in Article 2 of Regulation No 44/2001 that jurisdiction is based on the defendant’s domicile, must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by that regulation (see judgment in Painer , C‑145/10, EU:C:2011:798, paragraph 74).
19. In accordance with recitals 12 and 15 in the preamble to Regulation No 44/2001, that rule of jurisdiction meets the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately (judgment in Painer , C‑145/10, EU:C:2011:798, paragraph 77).
20. Therefore, in order for Article 6(1) of Regulation No 44/2001 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 (see judgments in Freeport , C‑98/06, EU:C:2007:595, paragraph 39, and in Sapir and Others , C‑645/11, EU:C:2013:228, paragraph 42). 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 (see judgments in Freeport , C‑98/06, EU:C:2007:595, paragraph 40; Painer , C‑145/10, EU:C:2011:798, paragraph 79; and in Sapir and Others , C‑645/11, EU:C:2013:228, paragraph 43).
23. Nevertheless, the Court points out that, even in the case where various laws are, by virtue of the rules of private international law of the court seised, applicable to the actions for damages brought by CDC against the defendants in the main proceedings, such a difference in legal basis does not, in itself, preclude the application of Article 6(1) of Regulation No 44/2001, 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 (see judgement in Painer , C‑145/10, EU:C:2011:798, paragraph 84).
27. According to settled case-law, that rule cannot be interpreted as allowing an applicant to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled (judgments in Reisch Montage , C‑103/05, EU:C:2006:471, paragraph 32, and in Painer , C‑145/10, EU:C:2011:798, paragraph 78).
28. The Court has nevertheless stated that, where claims brought against various defendants are connected within the meaning of Article 6(1) of Regulation No 44/2001 when the proceedings are instituted, the rule of jurisdiction laid down in that provision is applicable 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 (see judgment in Freeport , C‑98/06, EU:C:2007:595, paragraph 54).
35. Given that the circumstances of the present case are characterised by the consolidation of a number of potential claims for damages brought by the applicant in the main proceedings which had been assigned to the applicant by several undertakings allegedly victims of the Hydrogen Peroxide cartel, it should be pointed out from the outset that the transfer of claims by the initial creditor cannot, by itself, have an impact on the determination of the court having jurisdiction under Article 5(3) of Regulation No 44/2001 (judgment in ÖFAB , C‑147/12, EU:C:2013:490, paragraph 58).
37. In that regard, the Court notes that Article 5(3) of Regulation No 44/2001 must be interpreted independently and strictly (judgment in Kolassa , C‑375/13, EU:C:2015:37, paragraph 43).
38. The fact remains that the expression ‘place where the harmful event occurred or may occur’ Article 5(3) of Regulation No 44/2001 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 (judgments in Melzer , C‑228/11, EU:C:2013:305, paragraph 25, and in Kolassa , C‑375/13, EU:C:2015:37, paragraph 45).
39. In accordance with settled case-law, the rule of special jurisdiction laid down in Article 5(3) of that regulation is based on the existence of a particularly close linking factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgments in Melzer , C‑228/11, EU:C:2013:305, paragraph 26, and in Hi Hotel HCF , C‑387/12, EU:C:2014:215, paragraph 28).
40. In matters relating to tort and delict and quasi-delict, the courts for the place where the harmful event occurred or may occur are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence (judgment in Melzer , C‑228/11, EU:C:2013:305, paragraph 27).
41. The identification of one of the linking factors recognised by the case-law referred to in paragraph 38 above must therefore make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, from which it follows that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgments in Coty Germany , C‑360/12, EU:C:2014:1318, paragraph 48, and in Kolassa , C‑375/13, EU:C:2015:37, paragraph 47).
48. The Court has indeed held on another set of facts that Article 5(3) of Regulation No 44/2001 does not allow the courts of the place where a harmful event occurred which is imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, to take jurisdiction in an action against another presumed perpetrator of that damage who has not acted within the jurisdiction of that court (judgment in Melzer , C‑228/11, EU:C:2013:305, paragraph 41).
50. It follows that jurisdiction by virtue of Article 5(3) of Regulation No 44/2001 to adjudicate, on the basis of the causal event and with regard to all of the perpetrators of an unlawful cartel which allegedly resulted in loss, depends upon the identification, in the jurisdiction of the court seised of the matter, of a specific event during which either that cartel was definitively concluded or one agreement in particular was made which was the sole causal event giving rise to the loss allegedly inflicted on a buyer.
The place where the damage occurred
52. According to the settled case-law of the Court, the place where the damage occurred is the place where the alleged damage actually manifests itself (see judgment in Zuid-Chemie , C‑189/08, EU:C:2009:475, paragraph 27). As for loss consisting in additional costs incurred because of artificially high prices, such as the price of the hydrogen peroxide supplied by the cartel at issue in the main proceedings, that place is identifiable only for each alleged victim taken individually and is located, in general, at that victim’s registered office.
56. In the light of the above, the answer to the second question is that Article 5(3) of Regulation No 44/2001 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 EEA Agreement, which has been established by the 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.
The third question
59. With regard to the terms at issue in the third question which fall within the scope of that regulation, it is to be observed that, in the context of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1972, L 299, p. 32), the Court has stated that, by concluding an agreement on the choice of court under Article 17 of the Brussels Convention, the parties may derogate, not only from the general jurisdiction under Article 2 thereof, but also from the special jurisdiction laid down in Articles 5 and 6 of that convention (see judgment in Estasis Saloti di Colzani , 24/76, EU:C:1976:177, paragraph 7).
60. Since the interpretation given by the Court in respect of the provisions of that convention is also valid for those of Regulation No 44/2001 whenever the provisions of those instruments may be regarded as equivalent, it must be found that such is the case as regards the first paragraph of Article 17 of the Brussels Convention and Article 23(1) of Regulation No 44/2001, which are drafted in almost identical terms (judgment in Refcomp , C‑543/10, EU:C:2013:62, paragraphs 19 and 20).
61. It must therefore be concluded that the court seised of a matter can, in principle, be bound by a jurisdiction clause derogating from the rules of jurisdiction laid down in Articles 5 and 6 of Regulation No 44/2001 which was concluded by the parties under Article 23(1) of that regulation.
62. That conclusion cannot be called into question by the requirement of effective enforcement of the prohibition of cartel agreements. First, the Court has already held that the substantive rules applicable to the substance of a case must not affect the validity of a jurisdiction clause agreed in accordance with Article 17 of the Brussels Convention (see, to that effect, judgment in Castelletti , C‑159/97, EU:C:1999:142, paragraph 51). In accordance with the case-law referred to in paragraph 60 above, that interpretation is also relevant to Article 23 of Regulation No 44/2001.
63. Second, it must be considered that the court seised of the matter cannot, without undermining the aim of Regulation No 44/2001, refuse to take into account a jurisdiction clause which has satisfied the requirements of Article 23 of that regulation solely on the ground that it considers that the court with jurisdiction under that clause would not give full effect to the requirement of effective enforcement of the prohibition of cartel agreements by not allowing a victim of the cartel to obtain full compensation for the loss it suffered. On the contrary, it must be considered that the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals in that respect (see, by analogy, judgment in Renault , C‑38/98, EU:C:2000:225, paragraph 23).
64. In a case such as that in the main proceedings, the court before which the action is brought must, nevertheless, ensure that the clauses at issue actually bind the applicant in the main proceedings before examining the requirements of form laid down in Article 23 of Regulation No 44/2001. As the Court has already made clear, a jurisdiction clause incorporated in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract. In order for a third party to rely on such a clause it is, in principle, necessary that the third party has given his consent to that effect (judgment in Refcomp , C‑543/10, EU:C:2013:62, paragraph 29).
65. Only where a party not privy to the original contract had succeeded to an original contracting party’s rights and obligations in accordance with national substantive law as established by the application of the rules of private international law of the court seised of the matter could that third party nevertheless be bound by a jurisdiction clause to which it had not agreed (see, to that effect, judgment in Coreck , C‑387/98, EU:C:2000:606, paragraphs 24, 25 and 30).
67. In that regard, it is for the national court to interpret the clause conferring jurisdiction invoked before it in order to determine which disputes fall within its scope (judgments in Powell Duffryn , C‑214/89, EU:C:1992:115, paragraph 37, and in Benincasa , C‑269/95, EU:C:1997:337, paragraph 31).
68. A jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into. The purpose of that requirement is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which may arise out of its relationship with the other party to the contract and stem from a relationship other than that in connection with which the agreement conferring jurisdiction was made (see, to that effect, judgment in Powell Duffryn , C‑214/89, EU:C:1992:115, paragraph 31).
69. In the light of that purpose, the referring court must, in particular, regard a clause which abstractly refers to all disputes arising from contractual relationships as not extending to a dispute relating to the tortious liability that one party allegedly incurred as a result of the other’s participation in an unlawful cartel.
70. Given that the undertaking which suffered the loss could not reasonably foresee such litigation at the time that it agreed to the jurisdiction clause and that that undertaking had no knowledge of the unlawful cartel at that time, such litigation cannot be regarded as stemming from a contractual relationship. Such a clause would not therefore have validly derogated from the referring court’s jurisdiction.
72. Consequently, the answer to the third question is that Article 23(1) of Regulation No 44/2001 must be interpreted as allowing, in the case of actions for damages for an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, account to be taken of jurisdiction clauses contained in contracts for the supply of goods, even if the effect thereof is a derogation from the rules on international jurisdiction provided for in Article 5(3) and/or Article 6(1) of that regulation, provided that those clauses refer to disputes concerning liability incurred as a result of an infringement of competition law.
Costs