The applicability of choice of forum clauses in damage claims for breach of competition law
News    ·   12-11-2018

AUTHOR: Ron Galea Cavallazzi; Lisa Abela; Katya Gatt

The Court of Justice of the European Union (the “CJEU”) recently delivered a preliminary ruling distinguishing between Article 101 and Article 102 of the Treaty of the Functioning of the European Union (the “TFEU”) as regards the applicability of choice of forum clauses to competition damages claims. The French Cour de cassation lodged the preliminary ruling following proceedings for the establishment of liability for abuse of a dominant position under Article 102 TFEU brought before it by eBizcuss against Apple Sales International, a company established under Irish law, of whom eBizcuss was an authorised reseller by virtue of a contract between the two containing a jurisdiction clause conferring jurisdiction for disputes arising between the parties on the Irish courts.

The French court asked the CJEU whether EU law on jurisdiction clauses must be interpreted as precluding the application of such a clause in an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, where such clause does not expressly refer to disputes on liability incurred as a result of an infringement of competition law. The CJEU referred to its previous case law which holds that the applicability of a jurisdiction clause is limited solely to disputes which arise from the legal relationship in connection with the agreement entered into. In the Hydrogen Peroxide case (C-352-13), it was held that such a clause, unless it specifically states so, does not extend to a dispute relating to the tortious liability that one party might have incurred as a result of its participation in an unlawful cartel (in breach of Article 101 TFEU), when the undertaking suffering the loss could not have reasonably foreseen, or had no knowledge of, this anti-competitive behaviour at the time in which it entered into the agreement in question.

However, in the case at hand, the CJEU held that the anti-competitive conduct covered by Article 102 TFEU can materialise in contractual relations that an undertaking in a dominant position establishes by means of contractual terms. In such a case, therefore, a jurisdiction clause is not excluded on the sole ground that it does not refer to disputes relating to liability incurred as a result of an infringement of competition law. The CJEU also concluded that there is no prerequisite of a prior finding by a competition authority of an infringement of competition rules in order for such a clause to be applied. With these principles in mind, it is then up to the national courts to interpret the jurisdiction clause to determine whether a dispute falls within its scope on a case by case basis.

Case cited: Case C-595/17, Apple Sales International and Others v MJA ECLI:EU:C:2018:854


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