ECJ: Jurisdiction of courts in antitrust damage actions

The jurisdiction of a court for damage claims by victims of a competition law infringement is basically determined by Regulation (EC) NO. 44/2001 of 22.12.2000 ("Brussels I Regulation"). Accordingly, the jurisdiction of the court results from the domicile of the defendant. In cases that include several defendants with different domiciles, the plaintiff may choose a court within the different domiciles.

The Belgian company Cartel Damage Claims Hydrogen Peroxide SA (“CDC”) brought in March 2009 a damage claim against the participants of the cartel for hydrogen peroxide and sodium. The infringement was detected by the European Commission (“Commission”) in May 2006. A fine of over EUR 388 Mio was imposed on the participants.

Regarding the Brussels I Regulation, CDC filed the lawsuit with the regional court of Dortmund. One of the six defendants, Evonik Degussa GmbH (“Evonik”), had its domicile in Germany. However, the damage claim against Evonik was withdrawn in September after the parties settled out of court. The damage claims against the other five defendants was, however, not withdrawn, while none of the other defendants had its domicile in Germany.

As a consequence, the defendants challenged the international jurisdiction of the regional court of Dortmund. Furthermore, they argued, victims had already agreed to jurisdiction clauses in the supply contracts. Thus, the regional court of Dortmund referred to the European Court of Justice (“ECJ”) several questions concerning the jurisdiction of courts.

The ECJ confirmed on 21.05.2015 in its case C-352/13 Cartel Damage Claims Hydrogen Peroxide SA vs. Akzo Nobel NV and others, that it is possible, according to the Brussels I Regulation, to file an action against several parties with different domiciles within the European Union, to one single court. Thus, cartel participants may expect damage claims from any Member States in which one of the other participants has its domicile in. Furthermore, it found that the withdrawal of a damage action against a co-defendant, does not affect the jurisdiction if the court in regards to the other defendants.

Moreover, the ECJ stated that victims of a competition law infringement have the option to bring a damage claim before the court of either (i) where the cartel was established, (ii) where a specific agreement related to the cartel was implied, or (iii) where the damage occurred. In addition, the ECJ concluded that actions for damages resulting from competition law infringements are only subject to contractual jurisdiction clauses, if the victim had explicitly agreed to such clause. General jurisdiction clauses do not encompass damages resulting from law infringements, but only from contractual obligations.


Dr. Christina Hummer
Ori Kahn