Case law Developments in PIL

CJEU Rules Search Powers Exclude the Application of the Brussels I bis Regulation

On 22 December 2022, the CJEU ruled on the concept of civil and commercial matters in Eurelec Trading & Scabel v. (French) Ministre de l’Economie et des Finances (case C‑98/22). The case, which is not (yet?) available in English, is discussed by Geert van Calster here.

The case was again concerned with an action based on the power of a Member State to regulate anti-competitive practices. The court had already addressed the issue in Movic (case C‑73/19).

Background

The case was concerned with an action before French courts initiated by the French State (the Ministry of Economy) against two Belgian companies (Eurelec Trading and Scabel) and several French entities. The action aimed at declaring that certain practices of the defendants were anti-competitive in the meaning of French law. The remedies sought were a declaration that the practices were anti-competitive, an injunction to stop such practices, and the ordering of a fine to be paid by the offenders (for more on the facts in English, see the report by Geert van Calster).

The Belgian defendants challenged the jurisdiction of French courts on the ground that the action of the French State did not fall within the scope of the Brussels I bis Regulation, as it did not belong to civil and commercial matters. The Paris court of appeal referred the matter to the CJEU.

Judgment

As is well known, the CJEU has long defined the concept of civil and commercial matters by focusing on the powers of the relevant person (typically a public authority) and investigating whether those powers differ from the powers that private actors enjoy and are thus exorbitant compared to the latter.

In Eurelec, the CJEU discusses two separate issues. The first is the remedies sought before the French court.  The second is the method for gathering evidence.

The CJEU starts with the method used by the French State to gather evidence. It insists that, in the case at hand, the evidence was obtained by a search of French authorities in the defendants’ premises and by seizing certain documents. Although the court notes that the search was authorised by a court, it rules that such searches are an exorbitant power, as they could not have been conducted by private parties. It finally insists that obstructing such a search would be a criminal offence under French law.

With respect to the remedies, the CJEU rules that there is nothing exorbitant in seeking a declaration of violation of competition law, or an injunction from refraining from violating competititon law. It recalls that actions from a public authority seeking such remedies were found to belong to civil and commercial matters in Movic.

In contrast, the CJEU finds that an action for the ordering of a fine is exorbitant and is thus public power. It notes that, in addition, under French law, such action may only be initiated by the Ministry of Justice.

The CJEU concludes that the action of the Ministry of Justice fell entirely outside the scope of the Brussels I bis Regulation.

Assessment

The judgment is not fully convincing.

The most unsatisfactory part is the reason relating to the gathering of evidence. The proposition that it is not possible for private parties to obtain judicial authorisation to search the premises of the opponents and to seize evidence of offences against competition law or indeed torts (IP violations) is simply wrong. Such remedies are available in private disputes in many Member States: saisie-contrefaçon in France (IP violations), search orders (previously Anton Pillar orders) in common law jurisdictions. The judgment does not identify any critical difference between these orders/remedies and the specific power afforded to the French Ministry of Justice to conduct searches on the basis of a judicial authorisation. It is interesting to note that the Ministry of Justice seemed to have implicitly accepted that there was a critical difference, as it argued that the test for defining the concept of civil and commercial matters should not have been how the evidence was gathered, but how it was used in the proceedings.

The argument that obstruction to searches are criminal offences is also pretty weak. In a number of Member States, obstruction to any attachement/seizure, whether carried out by a private party in a private case or by a public authority, will be a criminal offence.

The argument on the remedies sought is more convincing. One can see how an action to fine a particular offender could appear as a public power (though that conclusion will have to be revisited if punitive damages develop in the EU). But then there is no reason to exclude the other remedies from the scope of the Brussels I bis Regulation. The judgment should thus have been that only the action seeking a fine fell outside of the scope of the Regulation.

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