Opinion of Advocate General Wahl delivered on 5 July 2018

EU law

5. Recitals 2, 11 and 14 of Regulation No 44/2001 state:

‘(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.

…

(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

…

(14) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.’

6. Article 23 of Regulation No 44/2001, which appears in Section 7 of Chapter II of that regulation, entitled ‘Prorogation of jurisdiction’, provides in paragraph 1:

‘If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

1. in writing or evidenced in writing; or

2. in a form which accords with practices which the parties have established between themselves; or

3. in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’

French law

7. At the time of the facts at issue in the main proceedings, Article 1382 of the code civil (Civil Code) provided that ‘any act of a person which causes injury to another shall oblige him by whose fault it occurred to make reparation’.

8. Article L 420-1 of the code de commerce (Commercial Code) provides:

‘Concerted actions, agreements, express or tacit arrangements or coalitions, in particular where they are intended to:

1. limit access to the market or the free exercise of competition by other undertakings;

2. prevent prices being fixed by the free play of the market, by artificially favouring price increases or reductions;

3. limit or control production, opportunities, investments or technical progress;

4. share the markets or sources of supply;

shall be prohibited, even through the direct or indirect intermediary of a company in the group established outside France, when they have the object or may have the effect of preventing, restricting or distorting the free play of competition on a market.’

9. Article L 420-2 of the code de commerce is worded as follows:

‘The abuse by an undertaking or a group of undertakings of a dominant position in the internal market or a significant part thereof shall be prohibited on the conditions laid down in Article L 420-1. Such abuse may consist, in particular, in a refusal to sell, in tied sales or in discriminatory conditions of sale and in the breaking-off of established business relationships on the sole ground that the partner refuses to accept unjustified business terms.

Where it may affect the functioning or structure of competition, the abusive exploitation by an undertaking or a group of undertakings of the state of economic dependence of a client undertaking or supplier vis-à-vis that undertaking or group of undertakings shall also be prohibited. Such abuse may consist, in particular, in a refusal to sell, in tied sales in discriminatory practices referred to in Article L 442-6 I or in product bundling agreements.’

General considerations concerning Article 23 of Regulation No 44/2001

27. The Court has already been requested on a number of occasions to rule on the interpretation of Article 23 of Regulation No 44/2001, and of the equivalent provision that preceded it, namely Article 17 of the Brussels Convention.⁽⁶⁾

28. As the Court has consistently observed, those provisions must be interpreted in the light of the wider objectives pursued by the Brussels Convention and by Regulation No 44/2001, namely to reinforce the legal certainty of persons established in the Union by, at the same time, allowing the applicant to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued.⁽⁷⁾

29. In the general scheme of Regulation No 44/2001, Article 23 is a fundamental provision: it expresses both the principle of the primacy of the autonomy of the freely-expressed intention of the parties (see recital 14 of that regulation) and the requirement for a high degree of predictability (see recital 11 of that regulation). It sets out to designate, clearly and precisely, a court of a Contracting State which is to have exclusive jurisdiction in accordance with the consensus formed between the parties, which is to be expressed in accordance with the strict requirements as to form laid down therein. The legal certainty which that provision seeks to secure could easily be jeopardised if one party to the contract could frustrate that rule simply by claiming that the whole of the contract was void on grounds derived from the applicable substantive law.⁽⁸⁾

30. As the Court has had occasion to emphasise, in that it allows a derogation from the rules on jurisdiction laid down in Regulation No 44/2001, the conditions, both procedural and substantive, to which Article 23 of that regulation makes the validity of jurisdiction clauses subject, must be interpreted strictly.⁽⁹⁾ Conversely, provided that the procedural and substantive conditions laid down in that regulation are fulfilled, the jurisdiction agreement must be capable of being applied. In fact, the choice of court in a jurisdiction clause may be assessed only in the light of considerations connected with the requirements laid down in Article 23 of Regulation No 44/2001.⁽¹⁰⁾

31. As regards the substantive requirement that the conferral of jurisdiction must relate to ‘disputes which have arisen or which may arise in connection with a particular legal relationship’, its purpose is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which would arise from a relationship other than that in connection with which the agreement conferring jurisdiction was made.⁽¹¹⁾

32. Where the applicability of a jurisdiction clause is called in question on the basis of that substantive condition, it is solely for the court before which a jurisdiction clause is relied on to decide whether or not that clause applies to the dispute forming the subject matter of the proceedings.⁽¹²⁾

33. Although that examination, which requires in particular that the court before which the action is brought was reasonably predictable for the parties at the time when they agreed to that clause, can be carried out only on a case-by-case basis, a number of lines of interpretation must in my view be borne in mind.

34. First of all, the primacy afforded to the autonomy of the parties, as expressed in the validly agreed jurisdiction clause, means that what matters is whether or not the dispute in question — in the present case an action for damages for the loss allegedly sustained as a result, in essence, of anti-competitive conduct — can be linked to the legal relationship determined in that clause, irrespective of the tortious or contractual nature of the dispute within the meaning of Regulation No 44/2001 and, a fortiori, within the meaning of the applicable national provisions.

35. Thus, a dispute which is non-contractual in nature, but which arose in connection with the contractual relationship, is capable of coming within the scope of the jurisdiction clause, provided that that dispute has its origin in the contractual relationship in connection with which that clause was entered into.

36. The binding force of the clause means, next, that it is not required that the court designated by the clause have any link of ‘proximity’ with the dispute. In other words, the fact that the jurisdiction clause designates a particular court which has no connection with the persons concerned or with the relationship at issue cannot stand in the way of its application.⁽¹³⁾

37. In addition, the fact that the jurisdiction clause, as is the case in the main proceedings, is asymmetrical or unilateral, in that only one party undertakes to bring an action before a very specific court while the other reserves the right to bring an action before other courts, cannot in itself be a relevant factor in the assessment of the validity of that clause in the light of the requirements laid down in Article 23 of Regulation No 44/2001,⁽¹⁴⁾ in so far as such a clause nonetheless fulfils the objective of predictability.

38. It means, last, that the substantive law applicable to the dispute has, in principle, no influence on the determination of jurisdiction. It must be borne in mind that it is precisely that irrelevance of the rules of substantive law in the light of the agreement conferring jurisdiction that constitutes a firm guarantee of legal certainty and predictability.⁽¹⁵⁾

39. I shall return to this point in greater detail below when I specifically address the question how a jurisdiction clause must be perceived in the context of actions designed to ensure the effectiveness of the protection conferred on individuals with respect to infringements of competition law.

First question: the applicability 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

40. By its first question, the referring court seeks to ascertain whether, in general, Article 23 of Regulation No 44/2001 allows a jurisdiction clause to be applied when the action for damages is based on an alleged infringement of Article 102 TFEU. In other words, the question arises whether Article 23 of Regulation No 44/2001 must be interpreted as meaning that there is an obstacle in principle to the application of a jurisdiction clause to a dispute based on an infringement of Article 102 TFEU.

41. In this case, all the parties which have intervened seem to be agreed that Article 23 of Regulation No 44/2001 must be interpreted as meaning that it allows the national court to apply a jurisdiction clause in such a situation, or at least does not prevent it from doing so.

42. That conclusion cannot be supported.

43. Further to the foregoing considerations, and with the exception of matters specifically referred to in Regulation No 44/2001,⁽¹⁶⁾ the effectiveness of a jurisdiction clause cannot depend on the fulfilment of a substantive condition other than the requirement relating to the subject matter of the clause, which must concern a ‘particular legal relationship’.

44. The irrelevance of the rules of substantive law with regard to the validity of a jurisdiction clause, which, I recall, constitutes an important basis for respect for the autonomy of party and predictability, applies in particular where an infringement of competition law is asserted in the dispute.

45. In the absence of a specific provision in Regulation No 44/2001 that would allow a derogation from the binding force of a jurisdiction clause in such a situation, the principle of the effective implementation of competition law cannot be pleaded in order to defeat such a clause.

46. Admittedly, the practical effect of Articles 101 and 102 TFEU assumes that any individual is able to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.⁽¹⁷⁾

47. However, and as the Court held in the case that gave rise to the judgment of 21 May 2015, CDC Hydrogen Peroxide (C-352/16, EU:C:2015:335 ), the court seised of the matter cannot, without undermining the aim of Regulation No 44/2001, refuse to take into account a jurisdiction clause which has satisfied the requirements of Article 23 of that regulation solely on the ground that it considers that the court with jurisdiction under that clause would not give full effect to the requirement of effective enforcement of the prohibition of cartel agreements by not allowing a victim of anti-competitive conduct, whether presumed or established, on the part of undertakings to obtain full compensation for the loss it suffered. On the contrary, it must be considered that the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals in that respect.⁽¹⁸⁾

48. Ultimately, the requirement of the effective implementation of the prohibition of abuse of a dominant position does not in itself preclude the parties’ ability to derogate, by means of a jurisdiction clause, from the heads of jurisdiction laid down in Regulation No 44/2001.

49. Having regard to all of those considerations, I propose that the answer to the first question should be that Article 23 of Regulation No 44/2001 must be interpreted as meaning that there is no obstacle in principle to the application of a jurisdiction clause in the context of an autonomous action for damages, such as that at issue in the main proceedings, brought by a distributor against its supplier because of an alleged infringement of Article 102 TFEU.

Second question: the requirement for an express reference to disputes relating to liability incurred as a result of an infringement of competition law

50. By its second question, the referring court asks the Court whether Article 23 of Regulation No 44/2001 precludes a jurisdiction clause which does not refer expressly to ‘disputes relating to liability incurred as a result of an infringement of competition law’.

51. That question seeks, ultimately, to ascertain the details that jurisdiction clauses must contain in order to be applied in actions based on competition law, in this instance an action for damages for the loss alleged to have been caused by an infringement of Article 102 TFEU.

52. In that regard, I recall that, in so far as Article 23(1) of Regulation No 44/2001 allows parties to derogate from the rules on jurisdiction defined in that article solely for the resolution of ‘disputes which have arisen or which may arise in connection with a particular legal relationship’, it is up to those parties to draft the clause so that it may best express their intention.

53. The question whether such a clause covers a particular action will always depend on the way in which that clause is drafted and on the way in which it will be interpreted by the court before which the action is brought.

54. Nor is it possible to respond in the absolute, that is to say, without reference to the actual wording of the jurisdiction clause specifically at issue, whether that clause continues to apply in connection with disputes relating to liability incurred as a result of an infringement of competition law where that clause does not expressly refer to such disputes. It is for the national court seised of the matter, which alone has the task of determining the precise scope of that clause, to determine whether the dispute relating to the liability of the contracting party incurred as a result of an infringement of competition law has arisen from the legal relationship in connection with which that clause was entered into.

55. As regards the applicability of a jurisdiction clause in the context of an action for damages in respect of the loss sustained as a result of anti-competitive conduct, it cannot be precluded that that clause forms part of a contractual context and that, accordingly, the court is required to give effect to it, irrespective of the explicit reference to ‘disputes relating to liability incurred as a result of an infringement of competition law’.

56. To my mind, it would be disproportionate if in all cases the parties to the dispute were required to have precisely specified the nature of the actions which are supposed to come under the jurisdiction clause, provided that that clause is drafted in sufficiently broad terms to include any action arising immediately or more remotely from the contractual relationship in connection with which that clause was entered into.

57. By entering into a jurisdiction clause, the parties seek, essentially, to confer jurisdiction on a particular court to settle all questions pertaining to the relationship which they have formed, even though they are not always able to foresee and draw up a list of the types of disputes that might arise between them. Were that not so, the function and scope of such a clause would be significantly undermined.

58. That conclusion in my view represents an extension of the solution adopted in the case that gave rise to the judgment in CDC Hydrogen Peroxide,⁽¹⁹⁾ and in particular paragraph 69 of that judgment.

59. It should be observed that in that judgment the Court, while pointing out that it was solely for the national court before which a jurisdiction clause is invoked to determine whether the disputes at issue fall within its scope (paragraph 67 of the judgment), set out, in the case of jurisdiction clauses which generally covered ‘all disputes arising from or connected with the contract’, some principles of interpretation intended to provide guidance for the national court (paragraphs 68 to 71).

60. The Court stated, in particular, that a clause which refers in the abstract to all disputes arising from contractual relationships does not extend to a dispute relating to the tortious liability that a contracting party is alleged to have incurred as a result of its participation in an unlawful cartel. On the other hand, a clause referring to ‘disputes in connection with liability incurred as a result of an infringement of competition law’ would oblige the court seised to decline jurisdiction.⁽²⁰⁾

61. However, remaining within the particular circumstances of the case that gave rise to that judgment, it seems to me that the latter consideration must be placed in context.

62. In the first place, it appears that the dispute at issue in that case related to a class action brought by CDC with the objective of securing, by judicial and extra-judicial means, claims for damages. The action was based on an allegation of an unlawful cartel involving several undertakings established in different Member States which relied on jurisdiction clauses stipulated in some of the contracts of sale with the undertakings claiming to be victims of the cartel the existence of which was established in a Commission decision.⁽²¹⁾

63. The solution adopted by the Court had in that context the advantage of avoiding the compensation proceedings being split up between several fora/courts, as would have resulted from a broad interpretation of the scope of the jurisdiction clauses contained in contracts which to my mind were unconnected with the unlawful cartel concluded between one of the parties to those contracts and third parties. In fact, the action for damages brought by CDC against the defendants in the main proceedings involved undertakings established in five Member States other than the Federal Republic of Germany.

64. In the second place, and above all, the cartel in question was by nature secret and therefore unrelated to the contracts of sale in connection with which the jurisdiction clauses at issue had been entered into. In such a situation, the objective of predictability which justifies the binding force of the jurisdiction clauses — and its corollary, namely the objective that a party must not be ‘taken by surprise’ by the assignment of jurisdiction to a forum having its origin in relationships other than those in connection with which the clause was agreed (see paragraph 68 of the judgment in CDC) — argued in favour of disapplying the jurisdiction clause at issue.

65. To my mind, the requirement of an express reference to ‘disputes in connection with liability incurred as a result of an infringement of competition law’ appears to be relevant only in the case of disputes which clearly do not have their origin in the legal relationship in connection with which the agreement conferring jurisdiction was entered into.

66. The guidance provided by the Court must thus be understood as being intended to make clear that the disputes at issue must actually have their origin in the contractual relationship between the parties to the contract in question (see, in particular, paragraph 70 of the judgment in CDC). Conversely, the solution applied by the Court cannot in my view be interpreted as requiring a jurisdiction clause to state precisely all the disputes of a tortious nature that might arise between the parties.

67. In that regard, it cannot, for example, be precluded that certain types of conduct alleged to constitute a cartel or an abuse of a dominant position, such as the types of conduct that may be employed in the context of a selective distribution system, may have a connection with the distribution agreement and thus be covered by the jurisdiction clause in such a contract which has been drafted in general terms, without expressly specifying the possible actions for breach of the provisions applicable in competition matters.

68. Where, as appears to be the case in the main proceedings, the alleged conduct relates to the pricing conditions or supply conditions imposed in a discriminatory manner, it cannot be precluded that the dispute has its origins in the legal relationship between a supplier and his distributor. The national court will therefore be in a position, when seised of an action based on infringement of the competition rules, to consider that the facts relied on relate to the contractual relationship in connection with which a jurisdiction clause, even drafted in general terms, was entered into.

69. An important point must be made. There is no question here of applying Article 23 of Regulation No 44/2001 differently — and more specifically of perceiving the applicability of a jurisdiction clause differently in the event of disputes relating to liability incurred as a result of an infringement of competition law — according to whether the case involves a breach of the prohibition of cartels (Article 101 TFEU) or an abuse of a dominant position (Article 102 TFEU).

70. From a procedural and jurisdictional viewpoint, there is no fundamental reason why those infringements should be treated differently. In that regard, I do not particularly support the notion that cartels prohibited by Article 101 TFEU always produce their harmful effects outside any contractual relationship, while conduct constituting an abuse of a dominant position prohibited by Article 102 TFEU would necessarily have its source in the contract entered into by the victim of the alleged conduct and the person committing such an abuse.

71. It is necessary to determine in each case, and therefore independently of the legal basis of the action, whether the conduct at the origin of the dispute is linked to the contractual relationship in connection with which the jurisdiction clause was entered into.

72. In so far as the dispute has its origin in that relationship, it may come within the scope of the jurisdiction clause drafted in general terms without an express reference to the possible bases of the actions that will be brought.

73. Thus, an action for compensation having as its basis an alleged infringement of Article 102 TFEU will be able to benefit from an extension of jurisdiction by agreement, provided that it has its origin in the contract, without there being any need for that action to be expressly mentioned in the clause at issue.

74. That is the position that seems to have been specifically taken by the Supremo Tribunal de Justiça (Supreme Court) in its judgment of 16 February 2016, Interlog and Taboada. That court considered that although the claim before it related to anti-competitive conduct, it concerned ‘a behavioural departure from the equilibrium (or programme) of the contract [at issue]’. It concluded that the dispute before it did indeed have its origin in the legal relationship in the context of which the clause had been entered into. It followed that the clause was wholly applicable to the facts of the case.

75. Likewise, it might be considered that a claim for damages based, this time, on Article 101 TFEU might, in certain circumstances, have its origin in the legal relationship in connection with which that clause was entered into. That might be the case of an action challenging on the basis of that provision the conduct of a supplier, the head of a selective or exclusive distribution network, towards its distributors.

76. In conclusion, the question whether a jurisdiction clause is or is not applicable where it does not refer expressly to the disputes relating to the liability incurred as a result of an infringement of competition law will depend on the assessment of that clause that will be carried out, in the light of the wording of the clause and the parties’ intention, by the national court before which the clause is invoked.

77. If it is established that the parties, who were unable to envisage the possibility that a particular dispute might arise, did not intend to include it in the scope of a jurisdiction clause formulated in an abstract manner, that clause cannot be relied on as against them in such a dispute. That would be the case, in particular, where a dispute turned on whether one of the parties could be held liable because of its participation in a cartel with undertakings not parties to the contractual relationship.

78. Conversely, where, although the dispute is based on an infringement of competition law, it is related to the contractual framework, in that it concerns in particular the conditions on which the parties agreed to enter into a contract, it is apt to be covered by the jurisdiction clause. That may be the case, for example, of actions based on Article 102 TFEU which challenge the pricing and supply conditions agreed in a distribution agreement containing a jurisdiction clause.

79. Having regard to all of those considerations, I am of the view that the answer to the second question should be that Article 23 of Regulation No 44/2001 must be interpreted as meaning that it requires the national court hearing an action for damages based on Article 102 TFEU to apply a jurisdiction clause provided that the dispute in question has its origin in the legal relationship in connection with which that clause was entered into. It is therefore for the national court seised of the matter to determine in each case whether the dispute in question is apt to be covered by such a clause, even when it is drafted in general terms, in the context of disputes relating to liability incurred as a result of an infringement of competition law.

Third question: the requirement of a prior finding by a competition authority of an infringement of competition law for the purposes of the applicability of a jurisdiction clause

80. By its third question, the referring court seeks to ascertain whether the fact that an infringement of competition law has not been established in advance by a national or European competition authority means that the jurisdiction clause can be disapplied.

81. In other words, the question arises whether, although is no indication to that effect is given in the judgment of 21 May 2015, CDC Hydrogen Peroxide , C‑352/13, EU:C:2015:335 ), the fact that the action at issue for damages in respect of an infringement of competition law is autonomous (a ‘stand-alone’ action, which is to be distinguished from a ‘follow-on’ action such as the action at issue in the case that gave rise to that judgment) can or cannot justify disapplying the jurisdiction clause.

82. I propose, further to the considerations set out above, that that question be answered in the negative.

83. To my mind, the nature of the action for damages (a ‘follow-on’ action or a ‘stand-alone’ action) before the court is not a relevant parameter in the assessment of a jurisdiction clause. In fact, the absence or presence of a prior finding by a competition authority of an infringement of the competition rules is a consideration wholly alien to the considerations that must prevail when determining that whether jurisdiction clause is to be applied — or, on the contrary, disapplied — to a particular dispute and, in particular, to an action for compensation for the harm alleged to have been sustained as a result of an infringement of the competition rules.

84. It should be borne in mind that, as stated in recitals 3, 12 and 13 of Directive 2014/104/EU,⁽²²⁾ Articles 101 and 102 TFEU produce direct effects in relations between individuals and create, for the individuals concerned, rights and obligations which national courts must enforce. Thus, anyone who considers that he has suffered harm caused by an infringement of the competition rules may claim damages for the loss caused to him irrespective of a prior finding by a competition authority that such an infringement has taken place.⁽²³⁾

85. In addition, it is accepted that, unlike disputes concerning the penalties imposed by a national authority in the exercise of its regulatory powers, which come within the concept of ‘administrative powers’, an action for compensation for the loss resulting from alleged infringements of competition law is of a ‘civil and commercial’ nature for the purposes of Regulation No 44/2001 and therefore comes within the scope of that regulation.⁽²⁴⁾

86. Article 23(1) of that regulation allows the parties to derogate not only from the general jurisdiction but also from the special jurisdiction which it lays down by entering into a choice of court agreement. The court seised of a matter may therefore, in principle, be bound by a jurisdiction clause derogating from the general and special jurisdiction laid down in that regulation.⁽²⁵⁾

87. Just as that possibility cannot be called in question by the substantive law applicable to the substance of the case,⁽²⁶⁾ it cannot be dependent on the action at issue being intended to penalise infringements of EU competition law which have first been established by the competition authorities. It must be borne in mind that it is the autonomy of the parties’ intention that justifies the primacy granted to the choice of a court other than that which might have had jurisdiction under Regulation No 44/2001.⁽²⁷⁾

88. Last, it seems to me that a distinction, when determining the applicability of a jurisdiction clause to a dispute, between ‘stand-alone’ actions and ‘follow-on’ actions would clash head-on with the objective of predictability pursued by Article 23 of Regulation No 44/2001, in that the application of such a clause would be dependent on a subsequent finding of an infringement by an authority responsible for competition law. Just as such a finding should not constitute a condition for disapplying a jurisdiction clause, it cannot merely be asserted that the dispute relates to a stand-alone action in order to avoid disapplying such a clause, independently of an actual examination of the clause and of the legal relationship in connection with which it was entered into.

89. I therefore propose that the answer to the third question should be that Article 23 of Regulation No 44/2001 must be interpreted as meaning that the absence of a prior finding of an infringement of competition law on the basis of Article 102 does not in itself allow a jurisdiction clause to be applied or, on the other hand, disapplied in an action for damages based on the competition rules.