Private Enforcement: Advocate General argues that dropping an anchor defendant should not affect the court’s jurisdiction to hear a cartel damage claim

In an opinion delivered on 11 December 2014, Advocate General Jääskinen argues that victims of an illegal cartel should be able to jointly sue several defendants in any Member State court as long as at least one of the defendants is domiciled in this jurisdiction. Moreover, the fact that the claim against the anchor defendant was dropped after the court had been seized should not affect jurisdiction of that court to hear the proceedings against the remaining defendants. 

Background

 The Advocate General’s opinion relates to a request for a preliminary ruling (C-352/13) by the Regional Court Dortmund which has to decide upon the admissibility of follow-on damage claims lodged by Cartel Damage Claims (CDC) in March 2009 against six members of the hydrogen peroxide cartel. Evonik Degussa GmbH (Evonik Degussa), the only defendant domiciled in Germany, functioned as the anchor defendant to establish jurisdiction for the German court. However, in September 2009, CDC and Evonik Degussa reached an out-of-court settlement with the consequence that the claim against Evonik Degussa was withdrawn. The remaining co-defendants challenged the court’s jurisdiction.

In light of these developments, the Regional Court Dortmund asked the ECJ to rule upon several questions concerning international jurisdiction according to Regulation (EC) No44/2001 (so-called “Brussels I Regulation”).  

The Advocate General’s opinion

Advocate General Jääskinen argues that Article 6(1) of the Brussels I Regulation – which enables a claimant to sue several co-defendants in any Member State court as long as at least one cartelist is domiciled in this jurisdiction – should apply in the context of cartel damage claims in order to avoid irreconcilable decisions. He observes that the European Commission has categorized the hydrogen peroxide cartel in its infringement decision as a “single, continuous infringement” of EU competition law and that national rules on the distribution of liability between participants of a cartel may vary. As a result, the inapplicability of Article 6(1) of the Brussels I Regulation would create a real risk that each of the cartel members might be ordered to pay different amounts of damages across different Member State courts.

Moreover, Advocate General Jääskinen takes the view that the fact that proceedings against Evonik Degussa as the anchor defendant were discontinued after the Regional Court Dortmund had been correctly seised should not affect the court’s jurisdiction to hear the claims against the remaining co-defendants domiciled outside of Germany. However, the applicability of Article 6(1) of the Brussels I Regulation must be restricted in the case of abuse.

Finally, Advocate General Jääskinen emphasizes that jurisdiction and arbitration clauses included in commercial contracts should generally not affect international jurisdiction of a court. According to him, these clauses could only have an effect if the victim consented specifically to such clauses in full knowledge of the cartel and the damage caused by it – a condition that will hardly be met in practice. 

Conclusion

The private enforcement of cartel damage claims faces several obstacles: secret cartels may operate for a long period of time and may involve participants domiciled in several countries. The Advocate General’s confirmation of the principle of perpetuation of competence (perpetuatio fori) ensures predictability and legal certainty in these proceedings, particularly if a claim is brought against co-defendants from several jurisdictions. Thus, it would facilitate cartel damage proceedings if the ECJ were to follow the non-binding opinion of its Advocate General.