The CJEU held earlier this morning in C‑393/23 Athenian Brewery SA, Heineken NV v Macedonian Thrace Brewery SA (no language versions available at the time of posting than Dutch and French).
My post on Kokott AG’s Opinion is here. The AG all in all supported a ready acceptance of forum connexitatis in competition law cases – in the case at issue a follow-on damages claim, filed in the mother corporation’s domicile, jointly against the daughter against whom a national competition authority had found a competition law infringement.
The Court is somewhat more cautious.
[26] The finding in CDC that A8(1)’s requirement of ‘same situation of law and fact’ is presumed to be met when various corporations have been held by a Decision of the European Commission to have violated competition law and are now pursued in the A4 court of one of them, also applies [27] when a mother and daughter corporation are pursued on the assumption they are part of one and the same economic unity. Once that unity established, it leads to joint and several liability in EU competition law [29].
[30-31] The risk of irreconcilable judgments increases in the event of bifurcation of claims against the mother corporation and related undertakings when it is not the EC but rather a national competition authority which has found an infringement seeing [32] as the Damages Directive 2014/104 only instructs national authorities to take a finding of infringement by another Member State as prima facie, not binding evidence of such infringement on their own territory.
[39] ff the economic unit theory in competition law can and ought to be extended to follow-on damages claims so as to preserve the effet utile of EU competition law.
[41] ff focusing then on Brussels Ia, the national court’s jurisdictional assessment in the context of A8(1) is not one of intense engagement with the facts let alone the merits of the claim. [43] The claims by the defendant must be given proper attention however the court seized can presume that the information furnished by the claimant as to the alleged tort, is correct.
[45] all in all, the room for manoeuvre for the court seized in the context of an A8(1) claim aimed at joint and several liability, is limited to assessing whether decisive influence by the mother corporation on the related corporation, is excluded. Hence [46] the defendant corporations must be given the opportunity, at the jurisdictional level, to show only that
either the mother corporation neither directly nor indirectly holds all or almost all of the capital of the related undertaking, or
that it did not hold decisive influence despite holding all or almost all of the capital.
In summary therefore while the court seized in a claim for joint and several liability will not be able to hold a mini trial on the alleged tort, it must engage with the corporations’ arguments on capital control and /or decisive influence. That is not a large window for extensive delay and argumentation yet neither is it the kind of swift A8(1) check which in my view the AG had in mind in her opinion.
Geert.
EU Private International Law, 4th ed. 2024, 2.516.
