On 24 October 2018, the Court of Justice of the European Union ("ECJ") issued a judgment concerning the interpretation of Article 23 of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels I Regulation", renumbered Article 25 under the recast Brussels I Regulation), in the context of a competition damages action based on an alleged infringement of Article 102 of the Treaty on the Functioning of the European Union ("TFEU") (Case C-595/17, Apple Sales International and Others v. MJA). Article 23 of the Brussels I Regulation gives effect to exclusive jurisdiction clauses whereby parties have agreed in writing that any dispute in connection with their particular legal relationship will be settled by the courts of a given Member State.
By way of background, in 2002, eBizcuss had entered into an authorised reseller agreement with Apple. The reseller agreement contained a jurisdiction clause in favour of the Irish courts, but did not make specific mention of EU competition law disputes. eBizcuss initiated an action for damages for breach of Article 102 TFEU against Apple in France. The French Supreme Court referred the case to the ECJ to clarify whether Article 23 of the Brussels I Regulation requires national courts to give effect to a broadly-worded jurisdiction clause between a supplier and reseller asserting a breach of Article 102 TFEU. The French Supreme Court also asked whether the absence of a prior finding of a competition law infringement by a national competition authority or the European Commission has an impact on the response to its question.
The ECJ referred to its prior case law concerning the application of jurisdiction clauses to competition law disputes. In particular, in its CDC judgment in 2015, the ECJ held that it was for the national court to interpret the clause conferring jurisdiction, and that a clause which abstractly refers to disputes arising from "contractual relationships" did not ground jurisdiction for damages actions based on cartel conduct (Case C-352/13, CDC Hydrogen Peroxide v. Evonik Degussa GmbH and Others). However, in the case at hand, the ECJ distinguished the CDC case on the basis that, unlike a cartel between suppliers, anti-competitive conduct covered by Article 102 can materialize in contractual relations between a supplier and reseller. Thus, the ECJ held that Article 23 of the Brussels I Regulation must be interpreted as meaning that jurisdiction could be based on a broadly-drafted clause, even though it did not expressly refer to competition law disputes – although this is ultimately for the national court to determine. Further, the ECJ held that it is not a prerequisite for the application of a jurisdiction clause, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, that there be a prior finding of an infringement of competition law by a competition authority.
In light of the 2014 Damages Directive and the increased number of competition-based private actions for damages in the EU, the case is noteworthy as it clarifies an important jurisdictional issue concerning broadly-drafted jurisdiction clauses.
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