February 2025 at the Court of Justice of the European Union

Those interested in EU private international law may want to follow the hearing in case C-77/24, Wummer, on 5 February. The Oberster Gerichtshof (Austria) has referred to the Court of Justice two questions on the interpretation of the Rome II Regulation pursuant to Article 267 TFEU:

1. Must Article 1(2)(d) of [the Rome II Regulation] be interpreted as meaning that it also applies to claims for damages against an officer of a company which a creditor of the company bases on tortious liability for infringement of protective provisions (such as provisions of legislation on games of chance) by that officer?

2. If Question 1 is answered in the negative:

Must Article 4(1) of the abovementioned regulation be interpreted as meaning that, in the event of an action for damages based on tortious liability in respect of gaming losses suffered which is brought against an officer of a company offering online games of chance in Austria without a licence, the place where the damage occurred is determined by

(a) the place from which the player effects credit transfers from his or her bank account to the player account maintained by the company,

(b) the place where the company maintains the player account in which deposits from the player, winnings, losses and bonuses are entered,

(c) the place from which the player places bets via that player account which ultimately result in a loss,

(d) the player’s place of residence as the location of his or her claim to payment of the credit balance in his or her player account,

(e) the location of the player’s main assets?

In the case at hand, Titanium Brace Marketing Limited (‘Limited’), currently in liquidation, ran an online casino via a website from its registered office in Malta. It marketed its services to the European market as a whole. It holds a valid Maltese gaming licence, but no licence under the Austrian Glücksspielgesetz (Law on Gambling).

The respondent is domiciled in Austria. He played online games of chance via Limited’s website during the period from 14 November 2019 to 3 April 2020 and paid, in total, the amount claimed without gaining any winnings. He seeks repayment of his losses from the managing directors of Limited during that period. He submits that, in the absence of an Austrian licence held by Limited, the gambling contract is null and void. He bases his claim on liability for damages, on the ground that interference with the Austrian monopoly on games of chance entails an infringement of protective provisions.

The referring court has doubts about the applicability of the Rome II Regulation in light of the exception provided for in Article 1(2)(d) thereof. Moreover, it considers that, if the main action were to fall within the scope of the Rome II Regulation, determining the place where the damage occurs within the meaning of Article 4(1) of the Rome II Regulation would be problematic, since purely pecuniary damage without infringement of absolute rights would be at issue.

The case has been allocated to a chamber of five judges, supported by the opinion of AG Emiliou’s.

On Thursday 13th, the Court will deliver its judgment in case C-393/23, Athenian Brewery and Heineken. This request from Dutch Hoge Raad (Supreme Court) focuses on Article 8 point 1 of the Brussels I bis regulation, and on the impact on it of the case-law on the concept of an undertaking for the purposes of Articles 101 and 102 TFEU and on the attribution of liability within an economic unit:

(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 [of 28 January 2015, Kolassa (C 375/13, EU:C:2015:37) and of 16 June 2016, 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?

The EAPIL blog reported on the case here. AG Kokkot’s opinion was published on 26 September 2024:

In the context of actions for damages for infringements of EU competition law, the court of the parent company’s domicile, when examining its jurisdiction under Article 8(1) of the Brussels Ia Regulation in respect of a subsidiary established in another Member State, must regard the fact that the parent company directly or indirectly holds (almost) all of the capital in that subsidiary as a strong indication of the existence of a close connection between the actions brought against those companies. No additional evidence of the existence of such a close connection is therefore required as a rule.

The very much awaited Grand Chamber decision in case C-339/22, BSH Hausgeräte, should be delivered on Tuesday 25th. AG Emiliou has produced two opinions (the first one on 22 February 22 2024; the second, on 5 September 2024) addressing the request of the Svea hovrätt (Svea Court of Appeal, Stockholm) for a preliminary ruling on Article  24 point 4 of the Brussels I bis Regulation:

(1) Is Article 24(4) of [the Brussels I bis Regulation] to be interpreted as meaning that the expression “proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence” implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?

(2) Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the [Patentlagen], which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?

(3) Is Article 24(4) of the [Brussels I bis Regulation] to be interpreted as being applicable to a court of a third [State], that is to say, in the present case, as also conferring exclusive jurisdiction on a court in [Türkiye] in respect of the part of the European patent which has been validated there?

Both opinions been commented on the EAPIL blog, see here for the first one, and here for the second.

Finally, on Thursday 27th the Court will make known its decision regarding case C-537/23, Società Italiana Lastre, on Article 25 of the Brussels I bis Regulation. According to the summary of facts provided by the French Cour de Cassation, in the context of a project commissioned by two natural persons (the project owners), the French company Agora entered into a contract for the supply of panelling with the Italian company SIL. In the contract, it was agreed that ‘The court of Brescia will have jurisdiction over any dispute arising from or related to this contract. Societa Italiana Lastre reserves the right to bring proceedings against the purchaser before another competent court in Italy or elsewhere.’

In November 2019 and January 2020, the project owners, claiming that defects existed, sued all of the contractors and the panelling supplier for damages. SIL raised an objection to a guarantee claim brought against it by Agora, on the grounds of a lack of international jurisdiction.

The court of appeal rejected the plea of a lack of jurisdiction. It found the clause unlawful in that it enabled SIL to bring proceedings before a wider range of courts than Agora but did not state the objective factors on the basis of which the parties had agreed to determine the relevant court. It therefore conferred on SIL a discretion which was contrary to the objective of foreseeability with which jurisdiction clauses must comply.

The Cour de Cassation is asking:

(1) Where there is an asymmetric jurisdiction clause which gives only one of the parties the ability to select a court which is competent under the rules of ordinary law but which differs from the court named in that clause and where the other party maintains that the clause is unlawful because it is too imprecise and/or because it is one-sided, should that matter be determined in accordance with autonomous rules derived from Article 25(1) of the Brussels Ia Regulation and the objective of foreseeability and legal certainty pursued by that regulation, or should it be determined by applying the law of the Member State designated by the clause[?] To put it another way, does it pertain to the substantive validity of the clause, within the meaning of that provision? Or should the substantive validity of the clause be interpreted strictly and regarded as relating purely to the material grounds for invalidity, which are principally fraud, error, deceit, violence and incapacity?

(2) If the question of whether the clause is imprecise or one-sided is to be determined in the light of autonomous rules, must Article 25(1) of the Brussels Ia Regulation be interpreted as meaning that a clause should or should not be applied if it allows one party to bring proceedings before only one court but allows the other party to bring proceedings either before that same court or before any other court which has competence under ordinary law?

(3) If the asymmetry of a clause amounts to a substantive condition, how is Article 25(1) of the Brussels Ia Regulation to be interpreted, in particular the requirement to refer to the law of the State of the designated court in a situation where multiple courts are designated by the clause, or where the clause designates one court but leaves it open to one of the parties to choose a different court but where this choice has not yet been exercised on the date when a court is seised of the matter:

– is the applicable national law that of the sole court to be expressly designated, even if proceedings could equally be brought before other courts?

– if multiple courts have been designated, is it possible to refer to the law of the court before which proceedings have actually been brought?

– lastly, in view of recital 20 of the Brussels Ia Regulation, should reference to the law of the Member State designated be understood to mean the material rules of the State or its conflict-of-law rules?

An AG’s opinion was deemed unnecessary.