The Court of Justice delivered yesterday (15 July 2021) its decision in case C‑30/20 (RH v AB Volvo, and alii), which is about Article 7(2) Brussels I bis and the private enforcement of competition law
“Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, within the market affected by collusive arrangements on the fixing and increase in the prices of goods, either the court within whose jurisdiction the undertaking claiming to be harmed purchased the goods affected by those arrangements or, in the case of purchases made by that undertaking in several places, the court within whose jurisdiction that undertaking’s registered office is situated, has international and territorial jurisdiction, in terms of the place where the damage occurred, over an action for compensation for the damage caused by those arrangements contrary to Article 101 TFEU”.
The Court of Justice delivered yesterday (15 July 2021) its decision in joined Cases C‑152/20 and C‑218/20 (DG, EH v SC Gruber Logistics SRL (C‑152/20), and Sindicatul Lucrătorilor din Transporturi, DT v SC Samidani Trans SRL (C‑218/20)), which is about the law applicable to employment contracts:
“1. Article 8(1) of Regulation (EC) No 593/2008 […] must be interpreted as meaning that, where the law governing the individual employment contract has been chosen by the parties to that contract, and that law differs from the law applicable pursuant to paragraphs 2, 3 or 4 of that article, the application of the latter law must be excluded with the exception of ‘provisions that cannot be derogated from by agreement’ under that law within the meaning of Article 8(1) of that regulation, provisions that can, in principle, include rules on the minimum wage.
2. Article 8 of Regulation No 593/2008 must be interpreted as meaning that:
– first, the parties to an individual employment contract are to be regarded as being free to choose the law applicable to that contract even if the contractual provisions are supplemented by national labour law pursuant to a national provision, provided that the national provision in question does not require the parties to choose national law as the law applicable to the contract, and
– secondly, the parties to an individual employment contract are to be regarded as being, in principle, free to choose the law applicable to that contract even if the contractual clause concerning that choice is drafted by the employer, with the employee merely accepting it”.
The CJEU held yesterday in C-30/20 Volvo Trucks. I reviewed Richard de la Tour AG’s Opinion here.
After having noted the limitation of the questions referred to locus damni [30] (excluding therefore the as yet unsettled locus delicti commissi issues) the CJEU confirms first of all [33] that Article 7(2) clearly assigns both international and territorial jurisdiction. The latter of course subject to the judicial organisation of the Member State concerned. If locus damni x has no court then clearly the Regulation simply assigns jurisdiction to the legal district of which x is part. However the Court does not rule out [36] per CJEU Sanders and Huber that a specialised court may be established nationally for competition law cases.
The Court then [39] applies C‑343/19 Volkswagen (where goods are purchased which, following manipulation by their producer, are of lower value, the court having jurisdiction over an action for compensation for damage corresponding to the additional costs paid by the purchaser is that of the place where the goods are purchased) pro inspiratio: place of purchase of the goods at artificially inflated prices will be locus damni, irrespective of whether the goods it issue were purchased directly or indirectly from the defendants, with immediate transfer of ownership or at the end of a leasing contract [40].
The Court then somewhat puzzlingly adds [40] that ‘that approach implies that the purchaser that has been harmed exclusively purchased goods affected by the collusive arrangements in question within the jurisdiction of a single court. Otherwise, it would not be possible to identify a single place of occurrence of damage with regard to the purchaser harmed.’
Surely it must mean that if purchases occurred in several places, Mozaik jurisdiction will ensue rather than just one locus damni (as opposed to the alternative reading that locus damni jurisdiction in such case will not apply at all). However the Court then also confirms [41 ff] its maverick CDC approach of the buyer’s registered office as the locus damni in the case of purchases made in several places.
Here I am now lost and the simply use of vocabulary such as ‘solely’, ‘additionally’ or ‘among others’ would have helped me here. Are we now to assume that the place of purchase of the goods is locus damni only if there is only one place of purchase, not if there are several such places (leaving a lot of room for Article 7(2) engineering both by cartelists and buyers); and that, conversely, place of registered office as locus damni only applies in the event of several places of purchase, therefore cancelling out the classic (much derided) Article 7(2) Mozaik per Shevill and Bier – but only in the event of competition law infringement? This, too, would lead to possibility of forum engineering via qualification in the claim formulation.
I fear we are not yet at the end of this particular road.
Geert.
EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.8.
Just out #CJEU Volvo Trucks https://t.co/fkCqdk015C
Location of damage in competition law follow-on damages suits: locus damni A7(2) BIa.
Seems to confirm AGs opinion which I reviewed here https://t.co/CvpU5bFR2U More analysis soon.
— Geert van Calster (@GAVClaw) July 15, 2021
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