Choice of forum delicti in EU-wide cartel damages cases (C-30/20, RH vs Volvo)

Does Art. 7(2) Brussels I bis determine territorial jurisdiction within the EU Member States, Madrid Commercial Court asks EU Court of Justice.

The request for a preliminary ruling from the Madrid Commercial Court might seem trivial or easy to answer given the recent case law by the Court of Justice of the European Union (‘CJEU’). However, it touches upon the fundamental question of jurisdiction. The response from the CJEU will provide further guidance on the spectrum of courts competent to hear EU-wide damages cases. It could also enhance competition between Member States to attract competition damages litigation.

Factual context

On 22 January 2020, Madrid Commercial Court (‘Madrid Court’) lodged a request for a preliminary ruling to the CJEU. The request concerns the interpretation of Art. 7(2) Regulation 1215/2012 (Brussels I bis). The main characteristics of the national case are as follows:

  • claims based on the European Commission (‘Commission’decision of 19 July 2016 (‘Decision’), which sanctioned the participants in the European Trucks Cartel (Trucks Cartel);
  • action initiated by a Spanish claimant located in Cordoba (‘Claimant’), where acquisition of trucks at inflated prices took place;
  • three of the defendants, none of which are seated in Spain, are addressees of the Decision;
  • the fourth defendant, non-addressee of the Decision, is seated in Madrid.

According to the request, the international competence of the Madrid Court was contested by the defendants. In essence, they argue that (i) the Trucks Cartel was formed outside of Spain and the harmful event giving rise to the damage occurred outside Spanish territory and (ii) in line with CJEU’s case law, the place of the Claimant’s domicile would be irrelevant for the purpose of determining international jurisdiction under Art. 7(2) Brussels I bis. The same strategy is adopted by defendants in (many other) parallel follow-on proceedings against the Trucks Cartel before Spanish Courts. In the present case, the fact that one of the defendants (a subsidiary of one of the addressees of the Decision) was domiciled in Madrid was not discussed. Also, it is not clear whether the trucks were sold to the Claimant by the Spanish subsidiary. Against this background, the Madrid Court decided to suspend the proceedings and addressed the request for a preliminary ruling to the CJEU. In substance, the Madrid Court asks whether Art. 7(2) Brussels I bis determines (also) the territorial competence of the courts within the Member States.

Brussels I bis discussion

The Madrid Court considers that in line with Art. 7(2) Brussels I bis and the recent judgment by the CJEU in Tibor-Trans, Spanish courts have international competence to hear the claim. The Madrid Court highlights the fact that the Trucks Cartel affected the Spanish market and harm was suffered therein. The Court seeks to determine, however, whether Art. 7(2) Brussels I bis also determines jurisdiction within the territory of the EU Member States. In passing, the Madrid Court seems to accept that the national court seized would be entitled to hear the claim regarding all and any jointly liable tortfeasors. In that regard, the scope of liability of the Spanish defendant, a non-addressee of the Decision, is not discussed before the Madrid Court so far.

According to Brussels I bis, persons domiciled in a Member State, whatever their nationality, (i) shall be sued in the courts of that Member State and (ii) may be sued in the courts of another Member State by virtue inter alia of the rules on special jurisdiction under Section 2 Brussels I bis. In line with Art. 8(1) and the CJEU’s judgment in CDC HP, fellow cartelists can be sued together for the entire damage in the court of domicile of any one of them. Moreover, based on Art. 7(2) and the CJEU’s judgment in Tibor-Trans, fellow cartelists can also be sued for the specific damage in the court of the affected market, where the harm was suffered. Art. 5(2) Brussel I bis provides that the rules on special jurisdiction of the Members States shall be notified to the Commission. The internal competence of the courts seems determined by national procedural law, provided that EU law and principles are complied with.

Story behind the scenes

The request does not specify whether the Madrid Court was seized by the Claimant as the court of domicile of the Spanish defendant. Also, it is unclear from the request what alternative special jurisdiction, other than the defendant’s domicile, would have been available to the Claimant under Spanish law. The Madrid Court merely points to a recent decision by the Spanish Supreme Court in another damages case against the Trucks Cartel. It is stated therein that even if no defendant has a domicile in Spain, the territorial jurisdiction of Spanish courts can be established under Spanish law at the place where the infringement took place or where it had effects.

Furthermore, the Supreme Court stated in February 2019 that if the specific claim is related to more than one location, the claimant can choose among several courts. In the case dealt with by the Supreme Court, the claimant filed the action in Valladolid, where the defendant (non-addressee of the Decision) was domiciled. The claimant then moved the claim to the court of the place where the sale was invoiced, which was Madrid. In the present case before the Madrid Court, the Claimant is seated in Cordoba where, according to the Madrid Court, purchases of the cartelized product took place. The Madrid Court considers however, insofar as no party had contested it, that its competence to hear the action would be established under Spanish procedural law by way of tacit agreement.

The Spanish rules (art. 52 of the Spanish Civil Procedural Law), as interpreted by the Supreme Court, seem to provide for alternative special jurisdiction, complementing Art. 7(2) Brussels I bis (i.e. the request does not deal with the interplay between Brussels I bis and the Spanish rules on international jurisdiction). In that regard, the Supreme Court dissociated the seat of the defendant(s) from the place where harm was suffered, each place being a distinct ground for establishing jurisdiction. Thus, in order to maintain its competence to hear the case, it might have been more useful for the Madrid Court to ask whether EU law precludes national provisions or the interpretation thereof according to which a subsidiary domiciled in Spain but non-addressee of the Decision can serve as an anchor defendant in line with Art. 8(1) Brussels I bis, and/or as basis for the establishment of special jurisdiction in line with Art. 7(2) Brussels I bis. Another relevant question would have been whether Art. 7(2) and eventually Art.8(1) Brussels I bis preclude national provisions or the interpretation thereof according to which the competence of a national court could be established by way of tacit agreement of the parties. In any event, it would be helpful to have further clarifications by the CJEU on the parameters to be considered in cartel damages cases for the predictable determination of forum deliciti under Art. 7(2) Brussels I bis.

Finally, the request for a preliminary ruling does not touch upon the existence of exclusive or optional competence of specialised courts to deal with competition damages cases in national legal systems. This is not surprising since no such specialisation of courts exists in Spain. However, it is apparent that the issue might become relevant for the Spanish legal order; be it because a Spanish company is notified with proceedings against it brought outside Spain, or because a judgment obtained in front of a foreign specialised court needs to be executed in Spain. Sooner or later the competence of these specialised courts might need to be scrutinised in light of Brussels I bis and CJEU’s case law.

This commentary is based on available information presented in the request for a preliminary ruling and public sources.

By Juraj Siska, Julia Suderow & Vasil Savov

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