CJEU simplifies concentration of jurisdiction for private enforcement under competition law

The Court of Justice of the European Union (CJEU) ruled on 13 February 2025 in case C-393/23 (Athenian Brewery and Heineken) on key questions of jurisdiction for private enforcement in competition law. This time, unlike in the MOL case (C-425/22, see Noerr Insights), it is not about interpreting the place of jurisdiction of the tort in accordance with Article 7(2) of the Brussels Ia Regulation, but the jurisdiction specified in Article 8(1) of the Brussels Ia Regulation for cases where there is a close substantive connection. The background to the decision is an action filed in the Netherlands by the Greek company Macedonian Thrace Brewery SA (MTB) against Athenian Brewery SA (AB), with its registered office in Greece, and its Dutch parent company Heineken NV (Heineken) for breaches of competition law.

Background to the question referred

MTB, a brewery operating in the Greek market, brought an action before the Dutch courts for damages against AB and Heineken as jointly and severally liable parties, for a breach of competition law. According to the findings the judgment is based on, this breach was committed by AB alone. The action is based on the abuse of a dominant market position by AB, as determined by the Greek competition authority. At the time of the breach, Heineken held approximately 98.8% of the shares in AB, but indisputably did not itself run any operations in the Greek beer market.

The key question in the proceedings at the CJEU was therefore whether the Dutch courts had jurisdiction over MTB’s action against AB, even though AB is domiciled in Greece. The decisive factor in the case was how to assess AB’s relationship with its parent company Heineken, which is domiciled in the selected legal forum, the Netherlands. The Dutch court of last instance, Hoge Raad der Nederlanden, had referred the question to the CJEU to determine how the requirement of a “close connection” between the actions, in this case the actions against the parent company and the subsidiary, as laid down in Article 8(1) of the Brussels Ia Regulation, should be interpreted in such a case.

According to Article 8(1) of the Brussels Ia Regulation, a person domiciled in another Member State may also be sued in the courts for the place where any of the other defendants is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together. Specifically, the CJEU had to decide whether it is sufficient, in order to assume the necessary close connection within the meaning of Article 8(1) of the Brussels Ia Regulation, to rely solely on the presumption that a parent company directly or indirectly holding all or almost all of the capital of a subsidiary exercises decisive influence over that subsidiary.

In the CDC Hydrogen Peroxide case (C-352/13, see Noerr Insights), the CJEU previously decided only that actions against several companies jointly involved in a single and continuous breach of EU competition rules established by the European Commission would be deemed to involve the same legal and factual situation and thus fulfil Article 8(1) of the Brussels Ia Regulation. That was not the case here.

Outcome of the decision

The CJEU has now ruled that the same finding also applies to parent and subsidiary companies if they form part of the same economic unit and thus constitute a single undertaking within the meaning of European competition law (see paragraph 29). In doing so, the CJEU is following its previous line in cartel-related damages cases by applying the concept of an economic unit also used in other areas of European competition law. It has already applied this concept in the cartel damages cases Skanska (C-724/17) and Sumal (C-882/19), and then further specified it in several subsequent decisions (see for example the CJEU judgment of 4 July 2024, C-425/22 - MOL).

The CJEU now confirms that, in the context of the jurisdiction provision of Article 8(1) Brussels Ia Regulation, the rebuttable presumption developed by the CJEU of the decisive influence of the parent company over the subsidiary (see the CJEU judgment of 26 October 2017, C-457/16 P and C-459/16 P to C-461/16 P, para. 84 – Global Steel Wire) and thus also a close connection within the meaning of Article 8(1) of the Brussels Ia Regulation can be assumed with regard to the actions against both companies.

In this context, the CJEU points out that, when determining international jurisdiction, the merits of the action do not have to be fully examined or even a taking of evidence carried out (see paragraph 41 onwards). Rather, the national court may, when examining jurisdiction, base its decision solely on the presumption of decisive influence if argued by the claimant (see CJEU judgment of 16 June 2016, C-12/15, paragraph 44 – Universal Music International Holding, known as doubly relevant fact). However, the court must also take into account any evidence submitted by the defendants in this regard (see the CJEU judgments of 28 January 2015, C-375/13, paragraph 64 – Kolassa and of 16 June 2016, C-12/15, paragraph 45 – Universal Music International Holding).

The CJEU also emphasised that the principle of legal certainty requires that the special rules on jurisdiction be interpreted such that an informed and reasonable defendant can foresee before which court it might be sued outside its country of domicile. It stated that this is the case with a parent company and its subsidiary established in another Member State (paragraph 34 onwards).

Significance of the judgment and outlook

With this judgment, the CJEU aims to avoid the risk of parallel proceedings and contradictory decisions as far as possible. However, it goes so far as to allow a case that at first sight appears to be purely domestic can be heard in another Member State, provided that a parent company is domiciled there. This opens up the possibility of unilateral forum shopping by claimants. This is particularly relevant in the area of cartel damage actions, as different forums are developed to different degrees and some offer procedural simplifications for claimants. In addition, the choice of different forums also opens up the choice between different collective proceedings and opportunities for involving litigation funders on the claimant side.

The decision, however, represents an extension of the previous application of the concept of economic unity and also contributes to better predictability of the interpretation of the jurisdiction rules of the Brussels Ia Regulation and therefore to legal certainty.

However, it remains to be seen whether there are also cases in which the CJEU would affirm that there is a close connection within the meaning of Article 8(1) of the Brussels Ia Regulation for actions brought against a subsidiary at the location of the registered office of the subsidiary which was not involved in the competition infringement.