The Court of Justice has recently confirmed that cartel victims can sue for damages in any jurisdiction where any one of the cartelists is domiciled. The Judgment further strengthens the opportunities for victims of cartels to seek redress in a jurisdiction of their choosing.
The relevant case is CDC v Akzo Nobel and Others, a damages action that relies on the 3 May 2006 Commission Decision in which the Commission found that certain suppliers of hydrogen peroxide and sodium perborate had participated in an unlawful cartel.
CDC brought its action in March 2009 in respect of a number of different potential claimants. The claim was commenced in Germany as one of the defendants was based there (Article 6(1) of the Brussels Regulation (EC Regulation No 44/2001) allows, in circumstances where there are multiple defendants, for a claim to be brought where any one of the defendants is based, providing the claims are so closely connected that it is expedient to hear and determine them together).
In September 2009, 6 months after commencing proceedings, CDC agreed an out of court settlement, and, as a result, withdrew its claim against the one German domiciled defendant. The remaining defendants promptly challenged the jurisdiction of the German court contending that it had no jurisdiction to hear and determine the case. The court, uncertain of whether it did, in this situation, have jurisdiction, stayed the proceedings and made a referral to the Court of Justice for a preliminary ruling.
The Court’s judgment, published on 21 May 2015, sets out three important points of principle.
- Given the risk of irreconcilable judgments if a cartel victim were to bring numerous actions in different Members States, the Court confirmed that Article 6(1) – which allows for an action to be brought before the courts of one single Member State against several defendants all domiciled in different Member States - can be applied to an action for damages;
- The withdrawal of an action against the sole defendant domiciled in that particular country does not, in principle, affect the jurisdiction of that court to hear and determine the action as regards the other defendants. However the Court was clear that this is not a principle that should be abused and, in circumstances where (for example), CDC and the German defendant delayed concluding their settlement solely to ensure that the case would be heard in the German courts, the German court may need, in these circumstances, to refuse jurisdiction as Article 6(1) would not apply.
- The Court confirmed the choice available to a cartel victim when considering where best to bring its action: (a) the place where the cartel was concluded; (b) if relevant, the place of one specific agreement which implied the existence of the cartel; or (c) the place where the loss arose (e.g. the victim’s registered office). This was not relevant to CDC, whose claim includes several different companies’ claim for damages (each with different domiciles), but is, nevertheless, a useful reminder of the flexibility that is granted to a potential claimant when considering where best to bring its follow on damages claim.
The competition litigation team at BLP are well placed to act on cartel damages claims, on behalf of both claimants and defendants. The team has won a string of awards for its cartel litigation work including “Cartel Litigation of the Year” by the Global Competition Review in April 2015 and “Competition and Regulatory Team of the Year” by Legal Week in June 2014. In addition, one of its most recent high profile cases, the National Grid GIS follow on litigation, was listed by The Lawyer as one of the ‘Top 20 cases of 2014’.