EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

For example, if a Member State had allowed, in its judicial organisation, several courts with different territorial districts to have exclusive (causal) jurisdiction over competition private enforcement disputes, then only one of those courts would be able to hear and decide such disputes, whilst the local jurisdiction would be determined between them. Also, this would be done in line with the rules of Article 7(2) of the Brussels Regulation Recast, i.e., according to the place of the harmful event. Of course, if a Member State has designated only one single court with exclusive (causal) jurisdiction in these matters, with a territorial perimeter of the whole Member State, then, logically, such a court would be the only court with jurisdiction to hear and decide the dispute. This situation can be interpreted either as meaning that such a court is to be competent irrespective of where within the territory of the Member State the harmful event occurred, or that such a court is to be competent because its territorial jurisdiction covers the entire territory of the Member State, including the place of the harmful event. In any event, it is a symbiosis, not a paradox. The second criterion of the cascade is somewhat peculiar in that it depends on whether or not the goods affected by the anticompetitive practice were acquired (purchased) in the district of only one court. However, if they were acquired (purchased) in the district of several courts, this criterion does not apply at all, and then the third criterion (the place of establishment of the injured party) automatically kicks in. Inmy view, it would work just as well if there were more than one court with local jurisdiction according to the place where the goods affected by the anticompetitive practice were acquired, and the injured party could choose which of those courts to bring the action before. Such courts would be equally well placed to make an assessment of the conditions in the affected market(s) and would have equal access to evidence. The objectives of proximity, proper administration of justice, and the economy of proceedings would therefore also be preserved. The last criterion – the place of establishment (domicile) of the injured party – is somewhat unfortunate. The Court seems to have loosened the reins here. I am not convinced at all that it is a correct approach to base the local jurisdiction (or even the international jurisdiction) of a court on the place where the injured party is established (domiciled), especially if it is to depend only on whether the goods in question were acquired (purchased) in one or more places. As I said above, a better result would be for the place of jurisdiction to belong to multiple courts according to all the places where the goods were acquired (purchased). By introducing the third criterion of the cascade, the Court implicitly accepts that the place of the harmful event may be the place of the injured party’s establishment (domicile) if the damage occurred in the districts of several courts, but regardless of whether it actually occurred also at the injured party’s establishment (domicile) or only manifested itself there as indirect or consequential damage.

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