Court of Justice ruled that antitrust damage claims may be brought where one of the defendants or the actual injured party re…

On 21 May 2015, the Court of Justice answered preliminary questions posed by the Landgericht Dortmund about the rules governing jurisdiction to hear antitrust damages claims (CDC HP judgment).

Antitrust damages cases invariably involve multiple defendants and often large groups of claimants. These cases are regularly initiated by commercial "claims vehicles" who have bought the claims from the individual injured parties. In such cases, disputes about jurisdiction often arise. This was no different in the current case, which was initiated by claim vehicle Cartel Damage Claims ("CDC"). Claimant CDC pursued the purported claims of 32 individual purchasers of hydrogen peroxide domiciled in 13 different EU and EEA Member States. Only one of the defendants, Evonik Degussa, was domiciled in Germany. Just months after serving its writ of summons on Evonik Degussa and the other defendants, CDC withdrew its action against Evonik Degussa following a settlement between them. Furthermore, supply contracts between the defendants and their purchasers contained arbitration and jurisdiction clauses. The suit against the other defendants non-domiciled in Germany remained.

In its judgment, the Court of Justice confirmed that there is a sufficiently close connection between antitrust damages claims against the various addressees of one decision to allow them to be sued jointly in the Member State where any one of them is domiciled (the "anchor defendant"). However, the court may nevertheless find it has no jurisdiction to hear the case if it can be proven that CDC and Evonik Degussa as anchor defendant purposefully delayed the formal conclusion of the settlement until proceedings had been instituted.

If jurisdiction cannot be based on a close connection with the case against an anchor defendant, the German court may still have jurisdiction if Germany is the place where the harm occurred. It is settled case law that the place where the harmful event occurred covers both the place where the damage occurs and the place of the event giving rise to it. In CDC HP, the Court of Justice ruled that the latter criterion "depends upon the identification, in [...] jurisdiction [...], of a specific event during which either that cartel was definitively concluded or one agreement in particular was made which was the sole causal event giving rise to the loss allegedly inflicted on a buyer." The place where the damage occurs, on the other hand, is generally each individual injured party's registered office. A claim vehicle such as CDC, who has consolidated several injured parties' potential claims for damages, would therefore need to bring separate actions for every individual injured party to the extent their registered offices are not in one and the same jurisdiction.

The Court of Justice concluded with the observation that jurisdiction or arbitration clauses may validly derogate from EU jurisdictional rules, "provided that those clauses refer to disputes concerning liability as a result of an infringement of competition law".