CJEU on Article 8(1) Brussels I bis in Private Antitrust Enforcement

On 16 April 2026, the Court of Justice rendered its judgment in Electricity & Water Authority of the Government of Bahrain and Others v Prysmian and Others and Smurfit Kappa and Others v Unilever and Others (Joined Cases C-672/23 and C-673/23), concerning the interpretation of Article 8(1) of Regulation (EU) No 1215/2012 (Brussels I bis) in the context of cartel damages litigation (see already the comment of Geert van Calster).

The Court clarified key aspects of Article 8(1) Brussels I bis: (1) when claims against multiple defendants – including anchor defendants not addressed in a prior decision – are “closely connected”; (2) the role of foreseeability; (3) the relevance of the prospects of success of the claim against the anchor defendant for abuse control; (4) the scope of jurisdiction, including its territorial reach beyond the EEA; and (5) certain procedural implications within the Member State.

Facts of the Case

The requests for a preliminary ruling stem from two cartel damages actions brought before Dutch courts.

In Case C-672/23, Gulf-based electricity operators sought damages from companies involved in a worldwide power cables cartel sanctioned by the Commission. Some defendants were established in the Netherlands (including the “anchor defendant”), while others were domiciled in different Member States or third countries. The claim concerned damage allegedly suffered outside the EEA.

In Case C-673/23, companies of the Unilever group sued cartel participants in the Italian corrugated cardboard market (as found by the Italian authority), again before Dutch courts, relying on a Netherlands-based holding as “anchor defendant”, although not addressed by the decision.

In both cases, the referring court raised multiple issues concerning the interpretation of Article 8(1) of the Brussels I bis Regulation in the context of private enforcement of EU competition law.

Judgment

1. Close Connection and Anchor Defendant

The Court begins by recalling that, under Article 8(1) of the Brussels I bis Regulation, jurisdiction over multiple defendants requires that the claims be “so closely connected” that it is expedient to hear them together to avoid irreconcilable judgments (paras 45–50). Such a connection exists only where the risk of conflicting decisions arises in the same factual and legal situation (para 51), and the rule must be interpreted strictly (para 49), while preventing abusive forum shopping (paras 52–53).

In cartel damages cases, a close connection may arise where several entities participated in a single and continuous infringement of EU competition law, even if their roles differ (para 54). This extends to situations involving parent companies and subsidiaries forming part of the same economic unit, which entails joint and several liability (paras 55–57).

The Court reiterates that the concept of “undertaking” is functional and based on the existence of an economic unit characterised by decisive influence (paras 58–62). In line with Sumal, liability may extend within the group where a concrete link exists between the subsidiary’s activity and the subject matter of the infringement (paras 64–68).

Importantly, the Court clarifies that various factual elements highlighted by the referring court – such as the mere holding of shares, the role of the defendant in the cartelised market, or its designation in a competition decision – are not decisive criteria in themselves, but only evidentiary factors (paras 71–72).

Accordingly, there is a close connection within the meaning of Article 8(1) between claims against an anchor defendant not addressed in a competition decision and claims against other companies, provided there are serious indications that they belong to the same undertaking responsible for the infringement (para 73).

2. Role of Foreseeability

The Court then addresses whether foreseeability constitutes an autonomous requirement. It finds that Article 8(1) does not require foreseeability as an independent criterion (paras 74–75).

However, foreseeability remains a general principle underlying the system of jurisdiction, where it ensures legal certainty (paras 76–79). It is satisfied where a reasonably informed defendant could foresee being sued in the courts of the domicile of a (prospective) co-defendant (para 78).

In cartel cases, this is typically fulfilled where the defendant participated in a single infringement as part of an undertaking, making it foreseeable that it could be sued in the courts of another member of that undertaking (para 80).

Thus, foreseeability is not a separate condition, but a factor to be taken into account in assessing the existence of a close connection (para 81).

3. Relevance of the Merits and Prospects of Success

The Court next clarifies the role of factors relating to the substance of the claim. It stresses that, when determining jurisdiction, national courts must not examine the merits or admissibility of the action (paras 85–86).

Nevertheless, courts must guard against abuse, ensuring that Article 8(1) is not used artificially to anchor jurisdiction (paras 87–89). In this context, a claim against the anchor defendant must not be manifestly unfounded or purely artificial (para 90).

The likelihood of success of the claim cannot be taken into account as such (para 84), but may serve as an indication of abuse where the claim appears manifestly unfounded (para 91).

The Court further clarifies that:

• damage occurring outside the EEA does not render a claim manifestly unfounded for jurisdictional purposes (paras 95–96);
• the presumption of decisive influence developed in competition law also applies in private enforcement actions (paras 97–100);
• even intermediate holding companies may be relevant where they form part of the economic unit and exercise decisive influence (paras 101–103).

Thus, while the prospects of success are not a jurisdictional criterion, they may be considered indirectly to exclude abusive litigation strategies (para 104).

4. Scope of Jurisdiction under Article 8(1)

The Court confirms that Article 8(1) determines both international and territorial jurisdiction (paras 105–109).

The reference to the “courts for the place” where one defendant is domiciled directly designates the competent court within the Member State (para 109). This interpretation promotes procedural efficiency and avoids fragmented litigation, which is particularly important in complex cartel damages cases (paras 111–112).

5. Transfer of Jurisdiction within a Member State

Finally, the Court holds that Article 8(1) does not preclude a national court, initially seised on that basis, from declining jurisdiction in favour of another court within the same Member State (paras 114–117).

Since the Brussels I bis Regulation does not harmonise internal procedural rules, such transfers are governed by national law, provided they do not undermine the effectiveness of EU rules on jurisdiction (paras 118–120).

Comment

This judgment represents a further, and significant, step in the Court’s ongoing effort to consolidate the role of Article 8(1) of the Brussels I bis Regulation in cartel damages litigation. Building on earlier case law such as CDC Hydrogen Peroxide, Volvo and Others, Athenian Brewery and Heineken, and especially Sumal, the Court confirms a claimant-friendly approach to jurisdiction, while attempting to preserve limits against abusive forum shopping. More broadly, the judgment reflects the Court’s ongoing attempt to strike a balance between the risks of forum shopping and the need for effective procedural concentration of cartel damages claims.

(1) As regards the notion of “close connection” and the role of the anchor defendant, the Court significantly clarifies the notion of “close connection” in the specific context of competition law. The key move lies in anchoring jurisdiction not in formal attribution of liability in a prior decision, but in the existence of “serious indications” that the defendants belong to the same undertaking. This confirms a functional and economic reading of Article 8(1), aligned with the concept of undertaking under EU competition law. The judgement must be read against a well-established litigation strategy in cartel damages cases. In particular, English case law has long called to rule on Article 8(1) (and its predecessors) in relation to concentrate claims before a single forum by suing a locally domiciled entity belonging to the same corporate group as foreign defendants (parent company included). This strategy, developed in the early 2000s in the Provimi Ltd v Aventis Animal Nutrition SA [2003] EWHC 961 (Comm) (06 May 2003) case, consists in using a locally established group entity as a jurisdictional anchor to attract claims against foreign co-defendants on the basis of the single economic unit doctrine.

In practice, this lowers the threshold for establishing jurisdiction: it is no longer necessary that the anchor defendant be directly implicated in a Commission or national authority decision. What matters is the plausibility – at the jurisdictional stage – of belonging to the same economic unit. This is consistent with Sumal, where the Court already decoupled civil liability from the formal addressee of the infringement decision. A close connection may exist even where the anchor defendant was not identified as liable, provided there are “serious indications” that the defendants belong to the same undertaking.

At the same time, however, this approach raises concerns. The reliance on “serious indications” introduces a degree of flexibility that may be difficult to control in practice, potentially expanding the already strategic use of anchor defendants in cartel litigation before certain fora (notably Dutch courts).

(2) As regards the role of foreseeability within the Article 8(1) framework, the Court adopts a nuanced position. It excludes foreseeability as an autonomous jurisdictional requirement, while reaffirming its status as a “general principle” underlying the system of jurisdiction.

This dual approach is not entirely free from ambiguity. On the one hand, it preserves doctrinal coherence with earlier case law such as Painer. On the other, it risks blurring the analytical framework: if foreseeability is not a condition, but must always be taken into account, its practical role remains somewhat indeterminate.

In cartel cases, however, the Court effectively presumes foreseeability where defendants participate in the same infringement as part of an undertaking. This reinforces the idea that participation in a cartel carries with it litigation risks extending beyond the defendant’s domicile – a conclusion that strengthens private enforcement.

(3) As regards the relationship between jurisdiction and the merits, the Court firmly reiterates the traditional separation between the two: jurisdiction cannot depend on the likelihood of success of the claim. This is essential to preserve legal certainty and procedural economy.

At the same time, the judgment refines the abuse test. While the prospects of success are not, as such, relevant, the manifestly unfounded nature of a claim may indicate that jurisdiction has been artificially created. This nuanced approach allows national courts to police abusive litigation strategies relying on the anchor defendants without engaging in a full assessment of the merits.

This issue had been also addressed in the opinion by Advocate General Kokott, who suggested that, while the court seised must not engage in a substantive review of the claim, the prospects of success of the action against the anchor defendant may nevertheless be considered as a limited indicator of whether jurisdiction has been artificially created (Opinion, paras 34–39, in particular paras 36–38), provided that only manifestly unfounded or contrived claims could justify setting aside Article 8(1).

In this respect, the judgment has already attracted commentary noting the Court’s refusal to engage in a merits review at the jurisdictional stage, while still leaving room for an abuse control mechanism based on manifestly unfounded claims (see, e.g., recent commentary on this judgment by Geert van Calster). In line with this reading, the Court ultimately confines any merits-related considerations strictly within the abuse analysis, thereby avoiding any transformation of Article 8(1) into a merits-based jurisdictional filter.

Of particular importance is the Court’s clarification that claims relating to damage suffered outside the EEA cannot be regarded as manifestly unfounded solely on that basis. This point reinforces the potentially global reach of EU cartel damages litigation, provided a sufficient jurisdictional link is established.

This approach ultimately reflects a broader concern for the effectiveness of EU competition law: while jurisdictional rules stem from secondary law, the notion of undertaking originates in Articles 101 and 102 TFEU, and a rigid or overly formalistic application of jurisdictional connecting factors risks weakening the effectiveness of those Treaty provisions and, consequently, the effectiveness of private enforcement.

(4-5) As regards the scope of jurisdiction and its procedural implications, the Court confirms that Article 8(1) determines both international and territorial jurisdiction. This strengthens the procedural effectiveness of the provision, allowing for the concentration of complex multi-defendant litigation before a single court.

This development echoes issues already noted on this blog by Lena Hornkohl and Priyanka Jain in the context of Article 7(2) of the Brussels I bis Regulation, where the Court has shown sensitivity to the multiplication of fora based on the place where the damage occurred. However, while Article 7(2) operates as a territorial connecting factor offering additional fora, Article 8(1) enables a genuine concentration of claims based on a subjective element, namely the plurality of defendants. The present judgment thus confirms a broader, and more structural, role for Article 8(1) in centralising cartel damages litigation.

At the same time, the Court preserves a role for national procedural autonomy by allowing internal transfers of jurisdiction within a Member State, provided that the effectiveness of EU law is not undermined.

Overall, and from a broader systemic perspective, the judgment confirms a consolidation – yet also a certain tension – in the Court’s approach to jurisdiction in competition law cases, and the use of jurisdictional rules to facilitate effective redress. However, the decision also leaves open important questions. In particular, the standard of “serious indications” and the boundary between legitimate forum concentration and abusive litigation strategies will likely remain contested in future case law.

Finally, from a systemic perspective, this development sits uneasily with the Court’s more restrictive approach in its recent two decisions – MOL v Mercedes-Benz Group, C-425/22, as noted on this blog by Matthias Lehmann, and Volvo v Transsaqui, C-632/22 – where  the CJEU rejected the application of the ‘single economic unit’ concept for the purposes of determining jurisdiction under Article 7(2) and for the purposes of service of documents under Regulation (EC) No 1393/2007 (Service Regulation).

Against that background, the present judgment reveals a clear divergence: a restrictive approach under Article 7(2), contrasted with an expansive and claimant-oriented reading of Article 8(1). This emerging dualism risks creating a form of “jurisdictional asymmetry” within the Brussels I bis system, depending on the head of jurisdiction invoked. Whether this distinction can be maintained coherently in future case law remains to be seen.