EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

An even more extreme view can be found in the aforementioned reaction to the Volvo judgment (Berennes, M., 2021), where the author criticises the Court for not going further and argues that the place of the harmful event resulting from a cartel will in any event be the place of the victim’s registered office, irrespective of whether the goods were acquired in one or more places, since the surcharge or loss of profit resulting from a cartel will always be manifested or suffered by the victim at the place of its registered office. That view cannot be accepted. Imagine a situation where it is generally accepted that the place of the harmful event will also always be the place of the injured party’s registered office, because the claimed damage will always be felt by the injured party at its registered office (e.g., because it will be reflected in its accounts or will affect its cash flow). Applying this interpretation, it would then always be possible to establish jurisdiction and venue in tort cases in the place where the injured party is established (domiciled). Such an interpretation, however, goes beyond the idea behind Article 7(2) of the Brussels Regulation Recast. The main rule of the Brussels Regulation is that the defendant is to be sued in the place of the defendant’s domicile (Article 4(1)), and exceptions to this rule (Articles 7 and 8) are to be applied only if the exception makes better sense than the main rule. Article 7(2) must therefore be interpreted restrictively. The exception relating to the place of the harmful event makes better sense than the main rule only if the objective of proximity is preserved between the dispute arising and the court, and if the court which has to hear and decide the dispute will have better access to the evidence, which preserves both the sound administration of justice and the economy of the proceedings. If, however, as in tort cases, it were generally accepted that international and local jurisdiction would be based on the place where the injured party is domiciled because the injured party subjectively feels the damage there or has simply booked the damage there in its accounts, then, for example, in the case of a crash of a truck owned by a Slovak company, jurisdiction would always be established in the Slovak courts, even though the crash, the defendant and all the witnesses and all the evidence would be located in another Member State. That interpretation would therefore lead to unreasonable results. Of course, the injured party will always choose to sue in the place where it is domiciled, because there it has the advantage of the home environment, culture, and language and, naturally, lower litigation costs. It is therefore rather surprising that the Court has accepted the place where the injured party is domiciled as the third criterion of the cascade. There is obviously a desire to promote the private enforcement of competition law behind this, but it is not the most fortunate conclusion with regards to the traditional conception of private international law.

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