The jurisdiction of the national civil court is often questioned in cases concerning EU-wide follow-on damages claims. In its judgment of May 2015, the European Court of Justice (ECJ) in Case C-352/13 – CDC HP confirmed that the national court under the Brussels I Regulation (Brussels I) is in particular competent to hear and adjudicate the case at the place where (1) one cartel member has its seat (anchor defendant in the case of multiple defendants), (2) the cartel or the behaviour which implied the existence of the cartel was concluded, or (3) the damage occurred, notably the seat of the victim. Case law from the Netherlands, for example in the Parrafin wax and Sodium Chlorate cartel rulings, show that the Dutch courts use a broad interpretation of these criteria and do not easily consider themselves incompetent to hear a case. The ruling of the Amsterdam District Court of 9 May 2018 in Heineken (ECLI:NL:RBAMS:2018:3203), concerning an abuse of dominance case, is an example of a Dutch court declaring itself incompetent regarding one of the defendants.
Macedonian Thrace Brewery S.A. vs Heineken N.V. & Athenian Brewery S.A.
The case concerns a claim for damages resulting from an abuse of a dominant position by Greek beer brewer Macedonian Thrace Brewery (MTB) against both rival Athenian Brewery (AB) and its Dutch parent Heineken. The claimant requests the establishment of the defendants’ obligation to pay damages of more than EUR 100 million for AB’s abuse of a dominant position on the Greek beer market. The case follows on from a fine imposed by the Hellenic Competition Commission (HCC) on AB of EUR 31.5 million for using anticompetitive exclusivity and loyalty rebates at wholesale and retail level between 1998 and 2014. Even though the fine was only imposed on AB, MTB argued that Heineken and AB form one undertaking within the meaning of Article 102 TFEU because of the decisive influence that Heineken exerts on AB. Therefore, Heineken should be considered involved in the abusive practices of its subsidiary and held jointly and severally liable with the latter for damages. The main question in this procedure was whether the Amsterdam District Court had jurisdiction to rule on the claims against both Heineken and AB.
The District Court of Amsterdam ruled that, according to Article 4 Brussels I governing jurisdiction in civil claims in the European Union, the court has jurisdiction over the claims against Heineken since it is headquartered in the Netherlands. This is different for the Greek subsidiary over which the Dutch courts have no jurisdiction pursuant to Article 4 Brussels I. Further, the requirements to establish jurisdiction on the basis of Article 8 Brussels I, which MTB plead for, were according to the District Court not met. MTB argued that jurisdiction based on Article 8 could be established as there are multiple defendants, one of which is seated in the forum state and there is a sufficient close connection between the claims against all defendants. While referring to the judgment of the ECJ of 13 July 2006 in Case C-539/03 – Roche Nederland, the Court states that the requirements of Article 8 are fulfilled where combining cases would prevent the risk of irreconcilable judgments from separate proceedings, provided the claims arose in the context of the same facts and law. However, the Court held that these conditions were insufficiently substantiated by MTB, in particular regarding the involvement of Heineken in the infringement, and therefore declined to accept jurisdiction in relation to the claims against the Greek subsidiary. MTB mainly referred to HCC’s fining decision, while Heineken was not an addressee of the HCC decision, nor explicitly mentioned in the decision as being directly involved in the Greek infringement. As the District Court concluded differently for the claim against Heineken, the procedure against Heineken will continue on the merits in the subsequent procedure. The District Court will have to explore the liability of Heineken as a parent company for the conduct of its Greek subsidiary AB.
The judgment shows that plaintiffs must sufficiently substantiate claims where they are also directed against defendants which have not yet been found by a competition authority to have infringed competition law. We will report about any further developments.
by Annalies Outhuijse
