July 2024 at the Court of Justice of the European Union

This July, the activity of the Court of Justice in PIL matters comprises the publication of two decisions and one opinion. All them relate to the interpretation of the Brussels I bis Regulation:

On Thursday 4, the fifth Chamber (sitting judges K. Lenaerts, E. Regan, I. Jarukaitis and D. Gratsias) will deliver its judgment in case C-425/22, MOL, answering a request for a preliminary ruling from the Kúria (Hungary) with the following questions:

‘Where a parent company brings an action for damages in respect of the anti-competitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’)?

Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of the Brussels Ia Regulation?’

The applicant in the main dispute is a company established in Hungary. It has a controlling interest in companies belonging to the MOL group. It is either the majority shareholder or holds another form of exclusive controlling power over a number of companies, such as MOLTRANS, established in Hungary; INA, established in Croatia; Panta and Nelsa, established in Italy; ROTH, established in Austria; and SLOVNAFT, established in Slovakia. Those subsidiaries purchased indirectly, either as owners or under a financial leasing arrangement, 71 trucks from the defendant in several Member States between 17 January 1997 and 18 January 2011.

In a decision of 19 July 2016, the Commission found that, by colluding on gross list pricing for medium trucks and heavy trucks in the European Economic Area (EEA), the defendant, having its seat in Germany, together with other companies, had participated in a cartel between 17 January 1997 and 18 January 2011, which constituted a continuous infringement of the prohibition laid down in Article 101 TFEU and in Article 53 of the Agreement on the European Economic Area. The Commission concluded that the infringement covered the entire EEA.

Before the Fővárosi Törvényszék (Budapest High Court, Hungary) the applicant requested that the defendant be ordered to pay EUR 530 851 with interest and costs, arguing that this was the amount that its subsidiaries had overpaid as a consequence of the anticompetitive conduct established in the Commission Decision. Relying on the concept of an economic unit, it asserted the subsidiaries’ claims for damages against the defendant. For that purpose, it sought to establish the jurisdiction of the Hungarian courts based on Article 7(2) of Regulation No 1215/2012, claiming that its registered office, as the centre of the group’s economic and financial interests, was the place where the harmful event, within the meaning of that provision, had ultimately occurred.

The defendant objected on the ground that the Hungarian courts lacked jurisdiction. The Budapest High Court upheld that objection. That position was confirmed on appeal by an order of the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary). The applicant appealed on a point of law before the Kúria (Supreme Court), the referring court.

The opinion of Advocate General N. Emiliou was delivered on 8 February 2024. He proposes Article 7(2) of the Regulation is to be interpreted as meaning that

‘the term the place where the harmful event occurred’ does not cover the registered office of the parent company that brings an action for damages for the harm caused solely to that parent company’s subsidiaries by the anticompetitive conduct of a third party, and where it is claimed that that parent company and those subsidiaries form part of the same economic unit.’

Advocate General Emiliou’s second opinion on C-339/22, BSH Hausgeräte, is expected on Thursday 11. I referred here to the second hearing on the case, held after the publication of the first opinion. A comment on it by Lydia Lundstedt is also published in the blog. The order reassigning the case to the Grand Chamber and reopening the oral phase of the procedure is also available (French and Swedish).

The judicial vacation starts on July 16. Nonetheless, several judgments will be published on July 29, among them C-774/22, FTI Touristik. By its single question, the Amtsgericht Nürnberg (Germany) asks the CJEU whether Article 18(1) of the Brussels I bis Regulation determines, not only international judicial jurisdiction, but also internal territorial jurisdiction. In addition, this court questions the foreign element required for the application of the Brussels I bis regulation.

In the dispute in the main proceedings, a consumer filed a claim against FTI, a professional providing tourist services, in relation to a package trip. Both parties to the dispute are domiciled in Germany; the only cross-border element is constituted by the destination of the trip outside that Member State. The consumer sued before the court of his domicile. FTI relies on the rules of German territorial jurisdiction to argue lack of jurisdiction, in that these rules designate as territorially competent jurisdiction that of the headquarters of FTI Touristik.

According to the referring court, under national rules it does not have territorial jurisdiction to hear the dispute. Venue could only be deduced from the application of the Brussels I bis Regulation, more specifically its Article 18, paragraph 1. Thus the question:

‘Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?’

In his opinion of March 7, 2024, advocate general N. Emiliou proposes the Court to answer that Article 1(1) and Article 18(1) of the Brussels I bis Regulation, read in conjunction, must be interpreted as meaning that

‘the rule of jurisdiction in favour of the courts for the place where the consumer is domiciled laid down in the second provision is applicable to proceedings brought by a consumer domiciled in a Member State against a tour operator domiciled in the same State in relation to a package travel contract concluded for the purpose of a trip to a foreign country. That rule confers both international and territorial jurisdiction on those courts, without reference to the rules on allocation of territorial jurisdiction in force in that Member State.’

The case has been allocated to a chamber of five judges (S. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen acting as reporting judge).

The publication of decisions and opinions resumes on September 3.