If you happen to do use the weblog for analysis or database functions, quotation could be appreciated, to the weblog as a complete and /or to particular weblog posts. Many have prompt I ought to flip the weblog right into a paid for, subscription service nonetheless I’ve resisted doing so. Correct reference to how the weblog is helpful to its readers, will assist holding this so.
Advocate-Common Kokott opined final week in Joined Circumstances C-672/23 and C-673/23 Electrical energy & Water Authority of Authorities of Bahrain ea v Prismiian ea .
After her Opinion in Athenian Brewery, the place the CJEU itself was much less claimant pleasant than the AG had opined, it’s the second Kokott AG Opinion on the usage of anchor defendant mechanism in follow-on antitrust damages claims in fast succession.
Case C‑672/23 issues the willpower of the joint and several other legal responsibility of the defendants for injury claimed as arising from an infringement of the prohibition on cartels underneath EU legislation within the type of a cartel in relation to underground and submarine cables and associated merchandise, works and providers. The declare in the primary proceedings is directed not solely in opposition to the businesses talked about within the related Fee Resolution but in addition in opposition to different corporations that fall into three teams of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all of the defendants, solely Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all the shares within the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All the different defendant corporations (collectively ‘Draka and others’) every have their registered workplace in different areas inside and outdoors the Netherlands. Claimants in the primary proceedings on this case, the Electrical energy & Water Authority of the Authorities of Bahrain and others (collectively ‘EWGB and others’), function high-voltage networks within the Gulf States. Harm arguably occurred outdoors the EEA.
Case C‑673/23 likewise issues the willpower of the joint and several other legal responsibility of the defendants in the primary proceedings at first occasion for injury which is alleged to have arisen on account of two infringements of the prohibition of cartels underneath EU legislation, on this case not established by the European Fee, moderately by the Italian nationwide competitors authority. The declare in the primary proceedings at first occasion was directed not solely in opposition to the businesses talked about in that call but in addition in opposition to different corporations that fall into two teams of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA, and, however, Toscana Ondulati SpA. Of these defendants, solely Smurfit Worldwide BV is established in Amsterdam, Netherlands. All the different corporations (collectively ‘Smurfit and others’) every have their registered workplace in different areas inside and outdoors the Netherlands.
The questions referred are very detailed certainly (see (17) of the Opinion). They primarily request from the CJEU a roadmap to find out the justifiable use of the anchor mechanism in circumstances like these. Notably after Athenian Brewery, nationwide courts arguably have sufficient materials to make that evaluation themselves, nonetheless the courts at Amsterdam had in fact referred these circumstances previous to Athenian Brewery having been held.
The AG to start with and succinctly recollects
- the rules of an ‘enterprise’ in EU antitrust legislation [(30):
“in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company”
- and the core application of A8(1) Brussels Ia in the antitrust context (32): (A8(1)’s condition of close relatedness is
“fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times” (reference to CJEU CDC); and
” The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking” (reference to CJEU Athenian Brewery).
The AG then entertains the referring court’s question on whether the prospect of success of the claim against the anchor defendant must be taken into account. ‘Prospect of success’ is a better translation than the translation elsewhere in the Opinion of the questions referred, where the Dutch term ‘toewijsbaarheid’ is translated as ‘admissibility’. The referring court clearly seeks guidance on the relevance of the merits of the claim.
The AG concludes on this section
“account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.”
‘Prospect of success’ must be an echo of common law CPR (a ‘real issue to be tried’), although we do not quite know: the AG, as is her MO, refers to no scholarship in her Opinion.
On this point I do not think the authorities support the conclusions which the AG draws from it. She writes (37)
“Article 8(1) of the Brussels I bis Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability.” (references omitted)
References were to CJEU CDC, and what the AG writes (37) is correct.
However the AG then jumps to the claim being ‘manifestly unfounded’: (38)
“For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought.”
In the original German, the Opinion uses ‘unbegründet’, which clearly refers to substantial merit of the case, not procedural or other inadmissability (and indeed this is also how the referring court has intended its question).
In support of her position in (38) the AG refers (other than to her Opinion in Athenian Brewery and to Mengozzi AG in Freeport) to CJEU Reisch Montage para [33]. This CJEU para doesn’t nonetheless discuss concerning the declare being unfounded, manifest or not. Quite it’s abstract of the judgment, proper earlier than its operative half and it addresses procedural inadmissability (as a result of a pending chapter continuing). In Reisch Montage the CJEU doesn’t deal with meritorious prospect of success in any respect.
Whether or not the probability of success of an motion in opposition to a celebration earlier than the courts of the State the place it’s domiciled (some type of deserves overview, subsequently) is related within the willpower of whether or not there’s a danger of irreconcilable judgments for the needs of A8(1), was raised in Freeport however not answered by the CJEU, for such reply was finally not crucial for the preliminary reference at subject.
The difficulty was mentioned in England, pre Brexit. Within the first occasion judgment in Sabbagh v Khoury, Carr J’s in depth deserves overview hinged on the CJEU instruction ‘to take account of all the mandatory components within the case-file’ per CJEU Freeport at [41]. The Courtroom of Attraction on majority confirmed the necessity for a moderately in depth deserves overview.
I don’t suppose that is what A8(1) both requires or certainly sanctions, and I agree with Girl Justice Gloster, who dissented within the Sabbagh attraction, [178]:
‘the operation of a deserves check inside Article [8](1) does give rise to danger of irreconcilable judgments, which could be demonstrated by reference to the current information’,
and [179]
“the overwhelming tenor of the CJEU authorities is to emphasize the basic purpose of eliminating, moderately than merely decreasing, a danger of irreconcilable judgments. This purpose is achieved if Article [8](1) doesn’t incorporate a deserves check and is undermined if it does accomplish that.”
Article 8(1)’s ‘so carefully linked’ check clearly requires some appreciation of the information and the authorized arguments, in addition to a specific amount of bearing in mind the defendant’s arguments, nonetheless solely with a view to assessing relatedness with a view to avoiding irreconcilable judgments. This in my opinion doesn’t quantity to a deserves check, whether or not a large or a slim (‘manifestly unfounded’) one and this stays an necessary distinction with the frequent legislation ‘actual subject to be tried’ requirement.
(40) ff the AG then zooms in on some points associated to the prospect of success (for my part the CJEU is not going to observe on prospect of success and, practising judicial financial system, is not going to entertain these questions).
As she notes, these questions are solely raised viz the train of jurisdiction, and they’re (43) “a posh authorized query calling for in-depth examination” – a query which I think could also be referred once more if and when the Dutch courts do train jurisdiction. This consists of [(44) ff) how attributability of injury to an adversarial impact on competitors within the inner market, should be interpreted the place injury arguably occurred outdoors of the EEA, and the final subject of territorial scope of A101 TFEU. (In my opinion the reply could also be rather more simple maybe than seemingly prompt within the submissions, by specializing in the claims primarily being in compensation for injury following breach of statutory responsibility). This part additionally discusses substantive problems with presumption of management in competitors legislation.
(68) ff then returns to the problems of jurisdiction, addressing ia the subject of teams of undertakings, bearing in mind that in one of many circumstances it’s the downstream legal responsibility of a subsidiary firm for an infringement dedicated by its guardian firm that’s at stake. Intense reference right here in fact to CJEU Athenian Brewery.
(79) ff addresses the position of the foreseeability of the co-defendant’s being sued within the jurisdiction of the anchor defendant.
I wholly agree with the AG’s view (81) that “foreseeability just isn’t.. an impartial criterion that’s examined alongside the opposite components defining the fulfilment of the availability at subject.” And, (82)
there isn’t a requirement underneath Article 8(1) of the Brussels I bis Regulation for the co-defendant him or herself to have particularly foreseen that she or he could be sued within the jurisdiction of the anchor defendant. Quite, summary foreseeability, within the type of the flexibility of an knowledgeable and affordable defendant to foresee earlier than which courts she or he may be sued outdoors his or her State of domicile, is ample.
(83) a ‘shut connection’ with the defendant, equivalent to right here via the group enterprise subject, is especially related on this respect.
I’ve seen many cases lately the place opposing counsel banks on lack of predictability to suggest rejecting jurisdiction. I might welcome a discovering by the CJEU that brings that interpretative rule again to its true nature.
(87) ff then addresses territorial jurisdiction underneath A8(1). Statutory interpretation because the AG argues, factors to a robust sure (reference ia to FTI Touristik) as does linguistic comparability and the report Jenard, regardless of the CJEU not having but dominated on the difficulty viz A8(1) particularly. If there are two anchor defendants in the identical Member State, and topic to the effectiveness of EU jurisdictional legislation not being impaired, nationwide CPR should be allowed to affix the case in opposition to each, however solely I assume in one of many courts the place the circumstances of A8(1) are fulfilled (see (97) “a courtroom which considers itself to lack jurisdiction might take up the choice to make a reference to a different courtroom obtainable underneath its nationwide procedural legislation, offered that the efficient enforcement of the Brussels I bis Regulation just isn’t restricted in consequence”).
All in all a really related Opinion, CJEU judgment is one to observe!
Geert.
EU Personal Worldwide Regulation, 4th ed. 2024, 2.516.
https://bsky.app/profile/gavclaw.bsky.social/submit/3lm7gymxlkk24
https://www.linkedin.com/posts/geert-van-calster-60abab9_more-on-the-blog-later-after-athenian-brewery-activity-7314912971514662913–mmY?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA
https://x.com/GAVClaw/standing/1909147234995782066
