Foreign consumers and private antitrust litigation
| Autor | Charlotte Leskinen |
| Cargo del Autor | Jean Monnet Fellow at the IE Law School. Senior Research Officer at the Finnish Competition Authority |
| Páginas | 175-214 |
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Ver Nota1
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Private antitrust litigation is the main form of enforcement of antitrust rules in the United States.2On the contrary, in the EU antitrust damages actions are still comparatively rare,3although the European Commission is currently examining how to foster private enforcement of the EC competition rules. As a first step, the Commission published in December 2005 a Green Paper on Damages Actions for Breach of the EC Antitrust Rules,4 which identifies the problems with the current framework and suggests different ways in which these might be solved. The Green Paper has been followed by the Commission’s White Paper on Damages actions for breach of the EC antitrust rules5in which the Commission presents policy options and specific measures that aim to ensure that all victims of infringements of the EC competition rules may obtain full compensation.
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Despite the scarcity of private antitrust litigation in Europe, it is settled case law that a Community law right to damages exists. According to the ECJ judgment in Courage v. Crehan, any individual who has suffered harm caused by an infringement of the EC competition rules may bring an action for damages before the national courts.6 As, for instance, cartels often cover several Member States, consumers may be harmed by an antitrust violation that has taken place in another Member State or by an infringement in which undertakings domiciled in different Member States have participated. This raises two questions. First, which courts have jurisdiction over antitrust damages claims brought by consumers when the antitrust violation covers more than one Member State or the claimant and defendant (or defendants) come from different Member States? And second, which substantive and procedural rules will be applicable to the action?
The objective of this article is to examine what particular difficulties and obstacles foreign consumers face when they wish to bring an antitrust claim for the loss that they have suffered as a result of an anti-competitive agreement or conduct. The focus will mainly be on situations involving consumers from the EU Member States. However, a brief comparison with the United States will also be made with regard to jurisdiction over foreign antitrust claims.
Section Two of the paper will present the criteria for determining the court having jurisdiction over antitrust claims. The law applicable to claims based on EC competition law and claims based on both EC and national law will then be examined in Section Three. In particular, the change brought about by Regulation 864/20077 will be analyzed. Section Four will
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focus on particular problems related to bringing actions in a foreign state. Finally, some conclusions will be drawn in the last chapter.
The ECJ has held that the right to damages for harm suffered as a result of an agreement or a conduct infringing the EC competition rules is a Community law right. Accordingly, any individual could rely on a breach of Article 81(1) or 82 EC before the national courts in order to bring a damages action.8 This means that both the party to the anti-competitive agreement and a third party who has suffered harm from the anticompetitive agreement may bring an action for damages as long as there is a causal relationship between the harm and the competition infringement.9
Consequently, consumers who have suffered loss as a result of an antitrust violation may also bring a damages claim.
Although it is clear that a Community law right to damages exists for loss caused by infringements of the EC competition rules, the conditions for enforcing that right are governed by national procedural and remedial rules.10 As these rules vary significantly from one Member State to another, the outcome of the action depends on the choice of the forum and the law applicable to the case.
Questions related to choice of forum and applicable law are governed by private international law in so far as these issues are not subject to any
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binding international legal rules. There are several international legal instruments whose objective is to solve the question of the competent jurisdiction in civil and commercial matters. For instance, Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applies to cases in which the defendant is domiciled in the EU.11
Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters12entered into force on 1 March 2002. It replaced the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters13and applies in all Member States.14However, the Brussels Convention still applies with regard to the territories of the Member States in which Regulation 44/2001 is not applicable.15
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Regulation 44/2001 governs the jurisdiction of the judicial bodies of the Member States in international civil and commercial matters16and must be applied ex officio.17It contains, inter alia, a general provision, which empowers the claimant to bring an action before the courts of the country in which the defendant is domiciled.18Alternatively, pursuant to the provisions on special jurisdiction, the claimant may choose the court in certain cases in which there is a particularly close relationship between the dispute and a specific court. Although this makes forum shopping possible, the aim is to facilitate the appropriate resolution of the case.19 In addition, Regulation 44/2001 provides exclusive jurisdiction over certain matters20 and the possibility of parties agreeing on which court will have jurisdiction over their legal relationship.21
As antitrust damages actions are civil and commercial matters, Regulation 44/2001 applies to these actions and will decide which jurisdiction is competent to hear the action. Since the Regulation confers jurisdiction on several grounds, courts in different Member States could have jurisdiction over the same issue. Consequently, this article will examine next grounds on which courts could be competent to decide antitrust damages claims.
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Article 2 contains a general rule on jurisdiction according to which a party may always bring an action before the courts of the Member State where the defendant is domiciled irrespective of the nationality of the defendant. If the defendant is an undertaking or a legal person, which is normally the case in antitrust claims, it is considered domiciled at the place where it has a statutory seat, central administration or principal place of business.22 If these three places do not coincide, the defendant must bear the risk that an action might be brought against him in any of the places mentioned.23
If a consumer who has suffered loss as a result of an anti-competitive agreement or conduct of an undertaking/undertakings domiciled in the EU wishes to bring a damages claim, he could bring the claim before the courts of the Member State where the defendant or defendants are domiciled. The advantage of the general rule is that it is predictable, but it may cause a problem if the claimant is not familiar with the legal system of the Member State where the defendant is domiciled or there are several defendants domiciled in different countries.
Article 5(3) of Regulation 44/2001 contains a provision on special jurisdiction for matters relating to a tort. Since infringements of competition rules are classified as torts, Article 5(3) is also applicable to antitrust damages actions. The ECJ has held that:
“[…] ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of the Convention must be regarded as an independent concept covering all actions which seek to establish the liability of a
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defendant and which are not related to a ‘contract’ within the meaning of Article 5(1)”. 24
According to Article 5(3) of the Regulation, a person domiciled in a Member State may be sued in the courts of the place where the harmful event occurred or may occur. It thus provides an alternative jurisdiction to the courts of the Member State where the defendant is domiciled. The ECJ has interpreted that the place where the harmful event occurred covers both the place where the damage occurred and the place of the event giving rise to it.25 As a consequence, the claimant can choose in which of these places he wishes to bring his claim. This makes it possible to compare the advantages...
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