April 2026 at the Court of Justice of the European Union

The Court of Justice will resume its work on Monday 13^th, after the Easter break.  On Thursday 16^th, it will deliver its judgment in joined cases C-672/23, Electricity & Water Authority of the Government of Bahrain e.a. and C-673/23, Smurfit Kappa Europe e.a. A hearing had taken place on January 2025; Advocate general J. Kokott’s opinion was published two months later (see below). The questions from the Gerechtshof Amsterdam (Court of Appeal, Amsterdam), partially identical, revolve around Article 8(1) of the Brussels I bis Regulation in cartel law :

‘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 that is not an addressee of a Commission cartel decision (C 672/23)/cartel decision of a national competition authority (C 673/23) but, as an entity alleged to belong to the undertaking within the meaning of the [EU] competition law (the ‘Undertaking’), is held liable downstream (C 672/23)/upstream (C 673/23) for the established infringement of the prohibition of cartels under EU law; 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 downstream (C 672/23)/upstream (C 673/23) 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 downstream (C 672/23)/upstream (C 673/23) was involved in producing, distributing, selling and/or supplying cartelised products and/or providing cartelised services;

(c)          (C 673/23) 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;

(c)          (C 672/23)/(d)  (C 673/23) 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 prohibition on cartels under EU law;

(d)         (C 672/23)/(e)   (C 673/23) whether the co-defendant who is not an addressee of the decision actually produced, distributed, sold and/or supplied cartelised products and/or services;

(e)         (C 672/23)/(f)   (C 673/23) whether or not the anchor defendant and the co-defendant belong to the same Undertaking,

(f)          (C 672/23)/(g)   (C 673/23) the plaintiffs have directly or indirectly purchased or received products and/or 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 [judgment of 6 October 2021, Sumal] (C 882/19, EU:C:2021:800)? To what extent do the circumstances mentioned in Question (1a)(a) to (f) (C 672/23)/(a) to (g) (C 673/23) above make it foreseeable here that the co-defendant would be sued in the court of the anchor defendant?

Question (2)

In determining jurisdiction, should consideration be given also to the admissibility 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?

Question (3a) (C 672/23)

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) (C 672/23)/Question (3) (C 673/23)

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) (C 672/23)

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)?

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?’

In her opinion of April  3^rd, 2025, J. Kokott proposes that the Court of Justice rules as follows:

‘(1a)       Claims are closely connected within the meaning of Article 8(1) of the Brussels I bis Regulation where there are strong indications that the companies against which they are brought are part of undertakings within the meaning of antitrust law which have jointly committed an infringement of the prohibition of cartels laid down in EU law, provided that it cannot be excluded a priori that the defendant companies belong to the undertakings concerned.

(1b)       The foreseeability of the ground of jurisdiction is not a defining element in the determination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, but a general principle that must be observed in the interpretation of every special rule of jurisdiction in that regulation.

(2)         In the examination of jurisdiction under Article 8(1) of the Brussels I bis Regulation, account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.

(3a)       The fact that the damage alleged in a claim for damages under antitrust law before a court of a Member State occurred outside the EEA does not mean that that claim must be classified as manifestly unfounded in the context of the examination of jurisdiction.

(3b)       The rebuttable presumption that a parent company which directly or indirectly holds all or almost all of the capital of a subsidiary company exerts a decisive influence on that subsidiary, may be applied in cartel damages cases.

(3c)       The activity of an intermediate holding company which merely manages and holds shares is capable of having a specific link to the subject matter of an infringement of competition law for which the parent company controlling the intermediate holding company is held liable. This is especially the case where a subsidiary of the intermediate holding company, on which the holding company itself exerts a decisive influence, pursues an economic activity which has a specific link to the subject matter of the infringement committed by the grandparent company.

(4)         Under Article 8(1) of the Brussels I bis Regulation, only a defendant domiciled in the judicial district of the court seised can be an anchor defendant, since that provision directly governs not only international but also territorial jurisdiction. This does not preclude an internal reference to another court in the same Member State, provided that the effective enforcement of that regulation is not adversely affected as a result.‘

The deciding chamber is composed by F. Biltgen (reporting), T. von Danwitz, I. Ziemele, A. Kumin, and S. Gervasoni.

The hearing in case C-300/25, Duftošek, announced to take place last month, should be held on the same day.

One week later, on Thursday 23, Advocate general N. Emiliou is expected to deliver his opinion in case C-799/24, Babcock Montajes. The hearing took place last February, as reported here. A comment by Dr. Lino Bernard on the questions referred has been recently published in the blog

Two further opinions by Advocate general N. Emiliou should be published on the same day, in case C-176/25, Steizer, following a hearing that took place last January (see here), and in case C-683/24, Spielerschutz Sigma. The latter is a request for a preliminary ruling from the Handelsgericht Wien (Austria), focusing on several provisions on recognition and enforcement under the Brussels I bis regulation in a case connected, once again (see, among other, C-198/24, Mr. Green, pending, on the European Account Preservation Order), with the Maltese ban on the recognition of foreign decisions against holders of Maltese gaming services licences:

1. Must Article 1(1) and (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, in conjunction with Articles 45(1)(a), 46 and 52 of that regulation, be interpreted as precluding a provision of national law which, on the basis of a corresponding principle of public policy enshrined in national law, precludes the recognition and enforcement of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?
2. Must Articles 45(1) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which, irrespective of whether a relevant application is submitted to the court or tribunal before which recognition or enforcement is sought and of whether the person bearing the obligation has exhausted all legal remedies in the Member State of the court of first instance, and without review by the court or tribunal before which recognition or enforcement is sought, precludes the recognition (Article 45 of Regulation (EU) No 1215/2012) and enforcement (Article 46 of Regulation (EU) No 1215/2012) of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?

3.a.   Must Articles 45(1)(a) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which declares the recognition and enforcement of judgments to be contrary to public policy (ordre public) for the sole purpose, in the context of encouragement of the private sector by the State as provided for in the national constitution, of protecting holders of online gaming licences from the recognition and enforcement of judgments finding against them that are given by courts or tribunals of other Member States?

3.b.   Must Articles 45(1)(a) and 46 of Regulation (EU) No 1215/2012 be interpreted as precluding refusal on grounds of public policy of recognition and enforcement by the court or tribunal seised in the State in which enforcement is sought where that refusal is based solely on the premiss that recognising such a judgment would be contrary to the economic and financial interests of the Member State addressed because gaming providers make a significant contribution to the national economy and the revenue of that Member State?

4. Must Article 52 of Regulation (EU) No 1215/2012 be interpreted as precluding a provision of national law which precludes recognition and/or enforcement of a judgment given by a court or tribunal of another Member State in proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service because the gaming provider’s activity, assessed under Maltese law, would be permissible?
5. Must Article 48 of Regulation (EU) No 1215/2012 be interpreted as meaning that the obligation to decide without delay enshrined therein is breached if no decision on the application for recognition has been given at first instance within six months and that delay is not due to circumstances or delays on the part of the parties or of third parties in the individual recognition proceedings?

In the main proceeding, the applicant is a litigation funding company which funds legal actions brought by Austrian and German consumers (players) against online gaming providers that provide gaming illegally without holding national licences. In the process, gaming losses are successfully recovered on the basis of unjust enrichment and of damages arising from tort/delict. The applicant has obtained numerous judgments in Austria and Germay against Maltese gaming providers through its clients and seeks to have them enforced in Malta in accordance with Article 39 of the Brussels I bis Regulation.

After the Maltese legislature passed a law in June 2023 under which the recognition and enforcement of all foreign judgments against Maltese online gaming providers are to be refused in principle, the applicant commissioned the defendant to prepare a legal opinion on the recognition and enforceability in Malta of the Austrian and German judgments obtained in the proceedings it funded, with a view to assessing the potential risks to its business model arising from that legislative amendment. The expert opinion of the defendant, a law firm established in Germany, was intended to serve as a basis for the applicant to decide on its future business activities.

Contrary to the defendant’s expert conclusions, Article 56A of the Maltese Gaming Act is being applied without conditions by the Maltese judiciary. Applications based on the Brussels I bis regulation for recognition of the Austrian and German judgments and their enforcement in the proceedings funded by the applicant are being dismissed on the basis of that provision. On the basis of that fact, the applicant seeks reimbursement from the defendant of the fee of EUR 5 000 paid for the defendant’s incorrect legal opinion and determination of the defendant’s liability for all future damage suffered by the applicant as a consequence of funding judicial proceedings in Austria and Germany between 5 July 2023 (when the expert opinion was provided) and 1 August 2023 (when the applicant learned of the Maltese decision cited above) brought by Austrian and German participants in illegal online gaming against Maltese online gaming provider.

The case will be determined by a chamber of five judges (I. Jarukaitis, M. Condinanzi, N. Jääskinen –reporting-, R. Frendo and A. Kornezov).

Finally, on Thursday 30 Advocate general J. Richard de la Tour will deliver his opinion in case C-190/25, Zelabrich. A hearing took place last February – reported here.