June 2024 at the Court of Justice of the European Union

On 6 June 2024 the Court of Justice will be holding a hearing in case C-393/23, Athenian Brewery et Heineken. The request for a preliminary ruling comes from the Hoge Raad der Nederlanden (the Dutch Supreme Court). In the main proceedings, Macedonian Thrace Brewery SA (‘MTB’) is suing Athenian Brewery SA (‘AB’) and Heineken NV (‘Heineken’) over an infringement of competition law committed by AB in the Greek beer market. MTB wishes to hold both AB and its parent company established in the Netherlands, Heineken, jointly and severally liable for this infringement in the Netherlands court. The questions concern Article 8(1) of the Brussels I bis Regulation:

1. In a case such as that at issue in these proceedings, must the court of the parent company’s domicile, when assessing its jurisdiction under Article 8(1) of the [Brussels I bis Regulation] with regard to a subsidiary established in another Member State, in the context of the close-connection requirement referred to in that provision, rely on the presumption – accepted as regards substantive competition law – that the parent company exercises decisive influence on the economic activity of the subsidiary which is the subject of the proceedings?

2. If the first question is answered in the affirmative, how is the criterion formulated in the judgments Kolassa (C-375/13, EU:C:2015:37) and Universal Music International Holding (C-12/15, EU:C:2016:449) to be interpreted? In such a case, where the parent company’s decisive influence on the economic activity of the subsidiary is disputed, is it sufficient for the assumption of jurisdiction under Article 8(1) of the [Brussels I bis Regulation] as regards the subsidiary concerned, that the existence of such a decisive influence cannot be excluded a priori?

With the first question, the referring court seeks to find out whether, to evaluate the close-connection requirement in Article 8(1), the judge of the Member State where the parent company is domiciled must rely on the presumption of decisive influence of the parent company with regard to the economic activity of the subsidiary. The second question addresses the assessment by the national court of its own jurisdiction in a case where the determining influence of the ‘(great-)grandmother company’ on the economic activity of the subsidiary is contested but cannot be excluded a priori.

The request has been allocated to a chamber of five judges (E. Regan, Z. Csehi, M. Ilešič – reporting – , I. Jarukaitis, D. Gratsias), benefitting from an opinion by Advocate General J. Kokott.

The decision on C-381/23, Geterfer, is expected as well on 6 June. Here, the Amtsgericht Mönchengladbach-Rheydt (District Court, Mönchengladbach-Rheydt, Germany) requests the interpretation of Article 12 of the Maintenance Regulation. The referring court, seized of a request for payment of maintenance lodged by a child, who has in the meantime become an adult, against his mother, needs to determine whether the conditions required in Article 12 to establish a situation of lis pendens are met. In this context it should be borne in mind that, the time of the application in the main case, proceedings had already been initiated by the mother before a Belgian court claiming from the father of the child compensation for maintenance which she had previously taken care of for the maintenance of this child.

No opinion was asked for. The decision will be taken by judges O. Spineanu-Matei, J.C. Bonichot and L.S. Rossi (reporting).

Finally, the Court will deliver its judgement on case C-35/23, Greislzel, on 20 June. The request for a preliminary ruling focuses on the interpretation of Articles 10 and 11 of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. The Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) is asking:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the [Brussels II bis] Regulation limited to proceedings conducted in the context of relations between EU Member States? More specifically:

Does Article 10 of the [Brussels II bis] Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

In the context of Article 10(b)(i) of the … Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?

Does Article 11 (6) to (8) of the … Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

In the case at hand, a child, born to a German-Polish couple in Switzerland, had been living in Germany with her mother since she was some months old before the two moved to Poland. The father remained in Switzerland, having consented to the relocation, although allegedly only for some time. Afterwards he applied via the Swiss Central Authority (Federal Office of Justice in Bern) for the return of the child to Switzerland under the 1980 Hague Convention. The District Court for Krakow-Nowa Huta in Krakow, Poland, rejected the application. At a later stage, he lodged a new claim for the return of the child to Switzerland with the German Federal Office of Justice in Bonn, although he did not continue to pursue it. Finally, he applied in Germany for the transfer of sole parental custody of the child and, in the alternative, for the right to determine the place of residence. He also requested that the mother be ordered to return the child to him in Switzerland as of the effective date of the decision.

Advocate General Campos Sánchez-Bordona’s opinion was published last February. He suggests the Court answers as follows:

Article 10(b)(i) of [the Brussels II bis Regulation] must be interpreted as meaning that an application, made under the Convention on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’), and seeking the return of the child to a State which is not that of his or her habitual residence prior to the removal, cannot be regarded as a ‘request for return’ for the purposes of Article 10(b)(i) of [the Regulation].

Once the whereabouts of the child are known (or should be known), the international jurisdiction of the courts of the Member State in which that child had his or her habitual residence immediately prior to the wrongful removal is lost, if, the rest of the conditions set out in Article 10(b)(i) of [the Brussels II bis Regulation] being satisfied, the holder of custody rights brings a custody action before those courts, but does not make a request for return to the authorities of the Member State to which the child has been removed.

Statements of fact given in proceedings for the return of the child brought under the 1980 Hague Convention do not necessarily bind a person who has to judge whether the court in a Member State has jurisdiction in subsequent custody proceedings.

The rule regarding the burden of proof laid down in Article 13 of the 1980 Hague Convention does not apply to the facts adduced as a basis for international jurisdiction in the case of an application for custody.

The decision corresponds to a judges C. Lycourgos, O. Spineanu-Matei, J.C. Bonichot, E. Rodin, and L.S. Rossi (reporting).