In competitors legislation there’s a sturdy presumption of attributability of daughter’s motion to the mom company as I mentioned ia in my submit on CJEU C-508/11 P ENI (references to additional case-law there). On the whole in competitors legislation there’s a sturdy emphasis on the idea of an ‘financial unit’ which readly appears past the authorized fiction of separate company character.
In C‑425/22 MOL Magyar Olaj- és Gázipari Nyrt. v Mercedes-Benz Group AG (let’s shorten that to ‘MOL v Mercedez-Benz) Emiliou AG opined that for the needs of Article 7(2) Brussels Ia jurisdiction a mum or dad firm can not depend on the competitors legislation idea of an financial unit to be able to set up the jurisdiction of the courts the place it has its registered seat to listen to and decide its declare for damages for the hurt suffered by its subsidiaries.
(14) Applicant is an organization established in Hungary. It has a controlling curiosity in firms belonging to the MOL group. It’s both the bulk shareholder or holds one other type of unique controlling energy over a lot of firms, resembling MOLTRANS, established in Hungary; INA, established in Croatia; Panta and Nelsa, established in Italy; ROTH, established in Austria; and SLOVNAFT, established in Slovakia. In the course of the infringement interval recognized by the related Commision Determination (the Vans Cartel)
The AG after all refers to Bier, Dumez France (direct injury in a single individual guidelines out an additional A7(2) discussion board for the third celebration (mom company) sufferer of oblique injury), and different core instances on A7(2) which this weblog steadily refers to and /or has mentioned:
C‑352/13 CDC: A7(2) locus delicti commissi for cartels is the court docket of the place the place the cartel was definitively fashioned, confirmed in flyLAL and criticised by me inter alia right here;
C‑352/13 CDC (holding ia that A7(2) locus damni for infringement of cartel is the sufferer’s registered seat); that resolution too because the AG notes (44) was met by criticism each by Bobek AG in his Opinion in flyLAL and by scholarship;
C-30/20 Volvo: extra emphasis Emiliou AG suggests on the hyperlink between the market affected by the anticompetitive conduct and the place the place the claimants allege to have suffered hurt; in my submit on the case I level out the CJEU’s fuzziness on the problem;
He additionally distinguishes CJEU Tibor Trans‘ distinct view on (in)direct injury as follows (36-37) – footnotes omitted:
36. It’s true, because the applicant notes, that within the judgment in Tibor-Trans (which associated to the identical collusive behaviour as that established within the Fee Determination at problem within the current case), the Courtroom distinguished that case from the situation in Dumez. The particularity of the details in Tibor-Trans was that the applicant in that case, an finish person of the vehicles, didn’t buy any vehicles from the defendant instantly, however did so by a dealership. Nonetheless, that didn’t forestall the Courtroom from discovering that the applicant’s declare in that case involved direct injury, as a result of that injury was discovered to be the instant consequence of an infringement of Article 101 TFEU, provided that the overcharge ensuing from the collusive settlement was handed on to that applicant by the sellers.
37. Such passing-on could happen inside a provide chain the place the alleged sufferer acquires the products (or providers) which have been topic to a cartel. That, nonetheless, will not be claimed to have occurred within the case in the primary proceedings. As a substitute, the applicant seems to current the preliminary hurt suffered by its subsidiaries as its personal.
(52) The AG factors out that the distinguishing function right here is that the applicant’s registered seat is located outdoors the affected market. (57) Applicant seeks to increase the applying of the registered seat connecting issue to ascertain jurisdiction in relation to its declare through which it seeks compensation for hurt suffered solely by different members of its financial unit.
Emiliou AG doesn’t consider the competitors legislation idea can merely be prolonged for jurisdictional providers, referring additionally to Szpunar AG’s Opinion in C‑632/22 (service of paperwork) on which see prof Matthias Weller right here. For his intensive arguments based mostly on A7(2)’s requirement of proximity, predictability of discussion board, Gleichlauf (much less convincing imo), and that BIa’s jurisdictional guidelines assure environment friendly enforcement (notably in A4 domicile jurisdiction), see the Opinion.
His remaining conclusion is that (98)
the time period ‘the place the place the dangerous occasion occurred’, throughout the which means of Article 7(2) of Regulation No 1215/2012, doesn’t cowl the registered workplace of the mum or dad firm that brings an motion for damages for the hurt prompted solely to that mum or dad firm’s subsidiaries by the anticompetitive conduct of a 3rd celebration, and the place it’s claimed that that mum or dad firm and people subsidiaries type a part of the identical financial unit.
As my colleague Joeri Vananroye summarises the Opinion:
“In company legislation phrases: sure to outsider veil piercing, no to insider reverse veil piercing. Outsiders could disregard authorized construction and go for financial actuality; however not those that arrange that construction. See additionally: guidelines on derivate damages.”
Blame Bier /Mines de Potasse d’Alsace for this complicated algorithm and distinguishing.
Geert.
EU personal worldwide legislation, 4th ed. 2024, 2.438 ff.
