Case number and/or case name
C-352/13 CDC Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV and Others (Fourth Chamber)
Referring court and Member State
Germany, First Instance, Landgericht Dortmund
Summary
The case referred to the CJEU in German proceedings. The court considered that it could have jurisdiction only by virtue of Arts 5(3) and 6(1) of Brussels I provided that there is no valid jurisdiction or arbitration agreement, and decided to refer some questions to the CJEU. 1) Are the conditions to establish jurisdiction under Art 6(1) met even though the applicant has withdrawn its action against the sole co-defendant domiciled in the State of the court seised? The CJEU reaffirmed that in order for judgments to be regarded as irreconcilable it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of fact and law and as it did in this case since the cartel agreement amounted to a single and continuous infringement. The requirements for holding the defendants liable in tort, jointly and severally are to be determined by the national law of each MS, not by the Commission decision. National laws may differ on this issue which may lead to irreconcilable judgments, within the meaning of Art 6(1), if actions were brought before the courts of various MSs. It was foreseeable by the defendants, because of the Commission decision, that they might be sued in the MS where one of them is domiciled. The CJEU found that the applicant’s withdrawal of the action against the only German defendant does not affect the application of Art 6(1) unless there is firm evidence to support the conclusion that the parties had colluded to artificially fulfil, or prolong the fulfilment of, that provision’s applicability. Simply holding negotiations with a view to concluding an out-of-court settlement does not in itself prove such collusion but concealing the fact that a settlement had been reached before the Art 6(1) proceedings had begun would do so. 2) Where did the harmful event occur under Art 5(3)? Unlike the AG, the CJEU found Art 5(3) operable in cartel damages actions. The CJEU interpreted in the context of a cartel damages claim that the place where the damage occurred is in each individual victim’s registered office. It found that the victim can choose to bring his action for damages against several companies having participated in the infringement under Art 5(3) before the courts of the place in which the cartel was definitively concluded or the place in which one agreement in particular was concluded which is identifiable as the sole causal event giving rise to the loss allegedly suffered, or before the courts of the place where its own registered office is located. Although the CJEU stated that Arts 6(1) and 5(3) should be interpreted strictly, the result it reached is rather broad. 3) What are the effects of the jurisdiction agreements contained in contracts for the supply of goods, by virtue of Art 23, on the court’s jurisdiction under Art 5(3) and/or Art 6(1)? The CJEU found that the court should regard a jurisdiction clause concluded under Art 23 which abstractly refers to all disputes arising from contractual relationships as not extending to a dispute relating to the tortious liability that one party allegedly incurred as a result of the other’s participation in an unlawful cartel. By contrast a jurisdiction clause contained in a contract for supply of goods will apply to disputes concerning liability incurred as a result of an infringement of competition law if the clause refers to such disputes, even if the effect thereof is a derogation from the special jurisdiction laid down in Art 5(3) and/or Art 6(1).