January 2025 at the Court of Justice of the European Union
January 2025 starts at the CJEU with the delivery of AG J. Richard de la Tour’s Opinion in case C-536/23, Mutua Madrileña Automovilista. The Landgericht München I (Regional Court of Munich I, Germany) is referring the following question to the Court of Justice:
Must Article 13(2) of Regulation (EU) No 1215/2012 [the Brussels I bis Regulation], read in conjunction with Article 11(1)(b) of that regulation, be interpreted as meaning that a Member State of the European Union itself, in its capacity as an employer which has continued to pay the remuneration of its official who has (temporarily) become unfit for work as a result of a road traffic accident and which is subrogated to the official’s rights vis-à-vis the company, established in another Member State, that provides the civil liability insurance for the vehicle involved in that accident, may sue the insurance company as an ‘injured party’ within the meaning of that provision before the courts for the place where the official who is unfit for work is domiciled, where a direct action is permitted?
In the main dispute, the Bundesrepublik Deutschland (the applicant), in its capacity as the employer of an official who was injured in a road traffic accident, claims compensation on the basis of subrogation rights against a Spanish insurance company (the defendant) providing liability insurance for the vehicle involved in the accident.
The applicant brought an action before the Amtsgericht München (Local Court, Munich) seeking payment of the sum of EUR 1 432.77. The defendant contested the claim and also challenged the international jurisdiction of the court seised. By judgment of 16 February 2022, the Local Court, Munich dismissed the action on the ground of lack of international jurisdiction, stating in that regard that the applicant could not assert jurisdiction under Article 11(1)(b) and Article 13(2) of the Brussels I bis Regulation. According to the court, those provisions are to be interpreted strictly; the applicant, as a State, does not need the special protection they provide for. The applicant has appealed against that judgment.
The case has been assigned to a Chamber of five judges (I. Jarukaitis, A. Arabadjiev, M. Condinanzi, R. Frendo, N. Jääskinen reporting).
The next PIL-releated event will take place on Thursday 16th. That day, a hearing is scheduled in joint cases C-672/23, Electricity & Water Authority of the Government of Bahrain e.a., and C-673/23, Smurfit Kappa Europe e.a., on the interpretation of Article 8(1) of the Brussels I bis Regulation. In both cases, the Gerechtshof Amsterdam (Court of Appeal of Amsterdam, Netherlands) is acting on appeal against a judgment of the rechtbank Amsterdam (District Court of Amsterdam, Netherlands), in which that court declared it had jurisdiction to hear claims against parties based outside the Netherlands in a cartel damages case. Both disputes concern the determination of the joint and several liability of the defendants for the damage caused by a single and continuous infringement of the prohibition on cartels under EU law (Article 101 TFEU and Article 53 of the EEA Agreement) established by a Commission Decision in case C-672/23, and by the Italian competition authority in case C-673/23.
The Gerechtshof is asking partially identical questions. The first one in case C-672/23 reads:
Question 1a.
Is there a close connection within the meaning of Article 8(1) of the Brussels I bis Regulation between:
(i) on the one hand, a claim against a lead defendant (also known as: anchor defendant) that is not an addressee of a cartel decision of a national competition authority but, as an entity alleged to belong to the undertaking within the meaning of European competition law (the ‘Undertaking’), is held liable upstream for the established infringement of the Union law cartel prohibition and,
(ii) on the other hand, a claim against:
(A) a co-defendant who is an addressee of that decision, and/or
(B) a co-defendant who is not an addressee of the decision in respect of which it is alleged that, as a legal entity, it belongs to an Undertaking which has been held publicly liable in the decision for the infringement of the prohibition on cartels under EU law?
In that regard, does it matter:
(a) whether the anchor defendant being held liable upstream merely held and managed shares during the cartel period;
(b) – if Question 4a is answered in the affirmative – whether the anchor defendant being held liable upstream was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;
(c) whether or not the anchor defendant resides in the Member State where the national competition authority has found (only) an infringement of the prohibition on cartels under EU law on the national market;
(d) whether the co-defendant who is an addressee of the decision has been designated in the order as
(i) an actual cartel participant – in the sense that it actually participated in the infringing agreement(s) and/or concerted practice(s) found or
(ii) as a legal entity forming part of the Undertaking which has been held publicly liable for the infringement of the Union law prohibition on cartels;
(e) whether the co-defendant who is not an addressee of the decision actually produced, distributed, sold and/or supplied cartelised products and/or services;
(f) whether or not the anchor defendant and the co-defendant belong to the same Undertaking,
(g) the plaintiffs have directly or indirectly purchased products and/or or received services from the anchor defendant and/or the co-defendant?
Question 1b.
Is it relevant to the answer to Question 1a whether or not it is foreseeable that the relevant co-defendant will be sued in the court of that anchor defendant? If so, is that foreseeability a separate criterion when applying Article 8(1) of the Brussels I bis Regulation? Is that foreseeability given in principle in the light of the Sumal judgment of 6 October 2021 (C 882/19, EU:C:2021:800)? To what extent do the circumstances mentioned in Question la(a) to (f) above make it foreseeable here that the co-defendant would be sued in the court of the anchor defendant?
The first question in case C-673/23 reads:
Question 1a.
Is there a close connection within the meaning of Article 8(1) of the Brussels I bis Regulation between:
(i) on the one hand, a claim against a lead defendant (also known as: anchor defendant) that is not an addressee of a cartel decision of a national competition authority but, as an entity alleged to belong to the undertaking within the meaning of European competition law (the ‘Undertaking’), is held liable upstream for the established infringement of the Union law cartel prohibition and,
(ii) on the other hand, a claim against:
(A) a co-defendant who is an addressee of that decision, and/or
(B) a co-defendant who is not an addressee of the decision in respect of which it is alleged that, as a legal entity, it belongs to an Undertaking which has been held publicly liable in the decision for the infringement of the prohibition on cartels under EU law?
In that regard, does it matter:
(a) whether the anchor defendant being held liable upstream merely held and managed shares during the cartel period;
(b) – if Question 4a is answered in the affirmative – whether the anchor defendant being held liable upstream was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;
(c) whether or not the anchor defendant resides in the Member State where the national competition authority has found (only) an infringement of the prohibition on cartels under EU law on the national market;
(d) whether the co-defendant who is an addressee of the decision has been designated in the order as
(i) an actual cartel participant – in the sense that it actually participated in the infringing agreement(s) and/or concerted practice(s) found or
(ii) as a legal entity forming part of the Undertaking which has been held publicly liable for the infringement of the Union law prohibition on cartels;
(e) whether the co-defendant who is not an addressee of the decision actually produced, distributed, sold and/or supplied cartelised products and/or services;
(f) whether or not the anchor defendant and the co-defendant belong to the same Undertaking,
(g) the plaintiffs have directly or indirectly purchased products and/or or received services from the anchor defendant and/or the co-defendant?
Question 1b.
Is it relevant to the answer to Question 1a whether or not it is foreseeable that the relevant co-defendant will be sued in the court of that anchor defendant? If so, is that foreseeability a separate criterion when applying Article 8(1) of the Brussels I bis Regulation? Is that foreseeability given in principle in the light of the Sumal judgment of 6 October 2021 (C 882/19,EU:C:2021:800)? To what extent do the circumstances mentioned in Question 1a(a) to (g) above make it foreseeable here that the co-defendant would be sued in the court of the anchor defendant?
In both cases, the second questions is worded as follows:
Question 2.
In determining jurisdiction, should consideration be given also to the assignability of the claim against the anchor defendant? If so, is it sufficient for that assessment that it cannot be excluded in advance that the claim will be upheld?
In C-672/23, the third question is:
Question 3a.
Does the right under EU law of any person to damages following an established breach of the prohibition on cartels under EU law include the right to claim damages suffered outside the EEA?
Question 3b.
Must – or can – the presumption accepted in competition law of decisive influence by the (fined) parent companies over the economic activity of the subsidiaries (the ‘Akzo presumption’) be applied in (civil) cartel damages cases?
Question 3c.
Does an intermediate holding company which merely manages and holds shares meet the second Sumal criterion (engagement in an economic activity which has a specific link to the subject matter of the infringement for which the parent company has been held responsible)?
And in C-673/23:
Question 3.
Must – or can – the presumption accepted in competition law of decisive influence by the (fined) parent companies over the economic activity of the subsidiaries (the ‘Akzo presumption’) be applied in (civil) cartel damages cases?
Finally, the text of question 4 is common:
Question 4a.
When applying Article 8(1) of the Brussels I bis Regulation, can different defendants domiciled in the same Member State be anchor defendants (together)?
Question 4b.
Does Article 8(1) of the Brussels I bis Regulation directly and immediately designate the relative competent court, overruling national law?
Question 4c.
If Question 4a is answered in the negative – such that only one defendant can be an anchor defendant – and Question 4b is answered in the affirmative – such that Article 8(1) of the Brussels I bis Regulation, overruling national law, directly designates the relative competent court:
When applying Article 8(1) of the Brussels I bis Regulation, is there scope for internal reference to the court of the defendant’s domicile in the same Member State?
The case has been allocated to the first Chamber, composed of five judges (F. Biltgen, reporting; T von Danwitz, A. Kumin, I. Ziemele, S. Gervasoni). AG J. Kokott has been asked to support the Court with an Opinion.
One week later (that is, on Thursday 23rd) the Court of Justice will deliver its decision in case C- 187/23, Albausy, a request for a preliminary ruling from the Amtsgericht Lörrach (Local Court, Lörrach, Germany). The case concerns the interpretation of Article 67 of the Succession Regulation, on the issuance of European Certificates of Succession. The questions submitted to the Court are:
(a) Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that it also refers to challenges raised in the procedure for issuing the European Certificate of Succession itself, which the court is not permitted to examine, and that it does not refer only to challenges raised in other proceedings?
(b) If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that a European Certificate of Succession may not be issued even if challenges have been raised in the procedure for issuing the European Certificate of Succession, but they have already been examined in the proceedings for the issuance of a certificate of inheritance under German law?
(c) If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as covering any challenges, even if they have not been substantiated and no formal evidence is to be taken of that fact?
(d) If the answer to Question (a) is in the negative: In what form must the court state the reasons that led it to reject the challenges and to issue the European Certificate of Succession?
A hearing was held on January 2024. In April, AG Campos Sánchez-Bordona delivered his Opinion, where he proposes, in the first place, that the Court declares the request inadmissible – under Article 67 of the regulation, the national body issuing the European Certificate of Succession would not be exercising a judicial function.
In the alternative, he proposes that the Court interprets Article 67(1), point (a), second subparagraph as follows:
[It] must be interpreted as meaning that an authority required to issue a European Certificate of Succession must examine any challenges raised in the procedure for issuing the certificate by persons having an interest in the succession, in order to establish the elements to be certified by it.
It is not possible to issue a European Certificate of Succession which includes elements that are inconsistent with an earlier final judgment.
It is not possible to issue a European Certificate of Succession where a challenge to a key element of the succession, such as the validity of the will, has been raised in the procedure for issuing that certificate, if that challenge has been substantiated to the minimum degree required under the applicable law.
An issuing authority is not required to set out in a European Certificate of Succession the reasons which led it to issue that certificate.
The case will be decided by the D. Gratsias, Z. Csehi, and I. Jarukaitis, with the latter reporting.
I would like to draw the reader’s attention to two further occurrences in January, starting with the publication of AG T. Ćapeta’s opinion in the Grand Chamber case C-600/23, Royal Football Club Seraing. The request comes from the Belgium Cassation Court, who is asking two questions:
Does Article 19(1) of the Treaty on European Union, read in conjunction with Article 267 of the Treaty on the Functioning of the European Union and Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of provisions of national law such as Article 24 and Article 171[3](9) of the Code judiciaire (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?
Does Article 19(1) of the Treaty on European Union, read in conjunction with Article 267 of the Treaty on the Functioning of the European Union and Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a rule of national law according probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?
I reported here on the hearing held last October. While waiting for the Opinion and, afterwards, the judgment, it may be of interest to get acquainted with the views of the Swiss Bundesgericht on arbitration and EU law here.
Finally, it may be worth to keep an eye on the Grand Chamber decision (K. Jürimäe reporting) in case C-253/23, ASG 2. Here, the Landgericht Dortmund (Germany) is requesting a preliminary ruling on the interpretation of the Directive 2014/104/EU (on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union), and private enforcement through group collection of claims for damages:
- Is EU law, particularly Article 101 TFEU, Article 4(3) TEU, Article 47 of the Charter of Fundamental Rights of the European Union, and Articles 2(4) and 3(1) of Directive 2014/104/EU to be interpreted as precluding an interpretation and application of the law of a Member State which has the effect of prohibiting a person who may have suffered harm by an infringement of Article 101 TFEU – established, with binding effect, on the basis of Article 9 of Directive 2014/104/EU or the national provisions transposing that article – from assigning on a fiduciary basis his or her claims for compensation – particularly in cases of collective or scattered harm – to a licensed provider of legal services, so that that provider can claim together with the claims of other alleged injured parties, by means of a follow-on action if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, in particular because they do not allow a judgment requiring performance [of payment of damages] to be sought, of if they are not practicable for other procedural reasons or are objectively unreasonable for economic reasons, with the consequence, in particular, that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount?
- Is EU law in any event be interpreted in this way if the claims for damages at issue have to be pursued without a prior decision on the alleged infringement from the European Commission or national authorities that has a binding effect within the meaning of national provisions based on Article 9 of Directive 2014/104/EU (known as a ‘stand-alone action’), if other equivalent legal or contractual possibilities for consolidating civil law claims for damages do not exist for the reasons already set out in question 1, and, in particular, on the contrary, an action based on an infringement of Article 101 TFEU would not be brought, either via public enforcement nor via private enforcement?
- If at least one of those two questions is answered in the affirmative, must the relevant provisions of German law remain unapplied if an interpretation which complies with EU law is ruled out, which would have the consequence that assignments [of claims for compensation] are in any event effective from that point of view and would render effective enforcement of law possible?
In an Opinion delivered on 19 September 2024, AG M. Szpunar proposed the Court of Justice answers that:
(1) Article 101 TFEU, point 4 of Article 2, Article 3(1) and Article 4 of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Article 3(1) and Article 4 thereof and Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as precluding the interpretation of national law which has the effect, in the absence of a final decision finding an infringement of competition law, of automatically prohibiting alleged injured parties from assigning on a fiduciary basis claims for compensation for harm caused by a cartel to a licensed provider of legal services, so that that provider can assert those claims together, if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, with the consequence that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount. That prohibition cannot be justified by the requirement of respect for the right to a fair trial and to effective legal protection of individuals.
(2) Article 101 TFEU, Directive 2014/104 and Article 47 of the Charter of Fundamental Rights
must be interpreted as meaning that the referring court must disapply the national provisions forming the basis for the prohibition of the claim assignment model which does not comply with the principles of effectiveness and effective judicial protection.
The decision is expected on Tuesday 28th.