delivered on 8 February 2024 (1)

Case C‑425/22

(Request for a preliminary ruling from the Kúria (Supreme Court, Hungary))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Jurisdiction in matters relating to tort, delict or quasi-delict – Action for damages for infringements of competition law – Harm suffered by subsidiaries – Place where the harmful event occurred – Registered office of the parent company – Economic unit)

1.In 2016, the European Commission adopted a decision concluding that, by colluding on gross list pricing for medium trucks and heavy trucks, several undertakings – including Mercedes-Benz Group AG (‘the defendant’) – had infringed the prohibition laid down in, inter alia, Article 101 TFEU. (2) That decision has led to a series of actions for damages, some of which gave rise to references for a preliminary ruling in which the Court was asked to clarify the proper interpretation of the jurisdictional rules of Regulation (EU) No 1215/2012 (3) to ascertain which courts could be seised by such actions. (4)

2.The present request has arisen in a similar context and seeks the interpretation of that regulation as regards whether, in essence, a parent company can rely on the competition law concept of an economic unit in order to establish the jurisdiction of the courts where it has its registered seat to hear and determine its claim for damages for the harm suffered by its subsidiaries.

3.More specifically, MOL Magyar Olaj- és Gázipari Nyrt. (‘the applicant’), established in Hungary, has a controlling interest in the companies belonging to the MOL group which are established in various Member States. Those subsidiaries have purchased trucks indirectly from the defendant at prices which were allegedly distorted due to the infringement of competition law established in the Commission Decision referred to above. In the main proceedings, the applicant is requesting the Hungarian courts to grant an order against the defendant, domiciled in Germany, for compensation in respect of the difference paid in excess, due to the infringement of competition rules.

4.Pursuant to Regulation No 1215/2012, the determination of jurisdiction is governed by the general rule of the defendant’s domicile. (5) That rule has several exceptions, including one which is applicable to tort actions (such as that at issue in the main proceedings), whereby jurisdiction can also be attributed to the courts of, inter alia, the place where the alleged damage occurred. (6)

5.Both the first-instance and second-instance courts found that that special jurisdictional rule could not, however, be applied in the main proceedings and that the Hungarian courts therefore did not have the international jurisdiction to hear and to determine the applicant’s claim. In a nutshell, this was because the trucks in question had not been purchased by the applicant, but by its subsidiaries (who were, in fact, the entities which had suffered harm in the form of the artificially increased prices). In those circumstances, the Kúria (Supreme Court, Hungary) now seeks clarification as to whether such jurisdiction may be established on the basis of the fact that the applicant’s registered office is located in Hungary. It also asks whether the fact that some of the subsidiaries concerned were not yet part of the applicant’s group at the time when the trucks in question were purchased is relevant to this assessment.

6.The referring court’s enquiry appears to be based on the applicant’s assertion that the applicant’s registered office is the place in which the harm was ultimately suffered, since the applicant and the affected subsidiaries belong to the same economic unit.

7.As I will explain in more detail in this Opinion, that concept has been developed in competition law and applied, inter alia, to enhance its enforcement. It has been invoked in particular, for the purpose of attributing liability to a defendant for infringement that has, in fact, been committed by another (legal) person, provided that both companies form part of the same economic unit. In that respect, the central question which arises in the present case is whether that concept can also be invoked to establish jurisdiction in relation to a claim for damages, irrespective of whether the applicant is the (legal) person that initially suffered the underlying harm.

II. Legal framework

8.Recital 15 of Regulation No 1215/2012 states that ‘the rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile …’.

9.Pursuant to recital 16 of Regulation No 1215/2012 ‘in addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen …’.

10.Chapter II of Regulation No 1215/2012 contains rules on jurisdiction. Section 1 of that chapter lays down general provisions, including Article 4(1) which states that ‘subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

11.Pursuant to Article 5(1) which forms part of the same section: ‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of [Chapter II].’

12.Section 2 of Chapter II of Regulation No 1215/2012 concerns ‘special jurisdiction’. It contains, inter alia, Article 7(2) pursuant to which a person domiciled in a Member State may be sued in another Member State, ‘in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

III. Facts, national proceedings and the questions referred

13.In its decision of 19 July 2016, the Commission found that, by colluding on gross list pricing for medium trucks and heavy trucks in the European Economic Area (EEA), the defendant, having its seat in Germany, together with other companies, had participated in a cartel between 17 January 1997 and 18 January 2011, which constituted a continuous infringement of the prohibition laid down in Article 101 TFEU and in Article 53 of the Agreement on the European Economic Area. (7) The Commission concluded that the infringement covered the entire EEA.

14.The applicant is a company established in Hungary. It has a controlling interest in companies belonging to the MOL group. It is either the majority shareholder or holds another form of exclusive controlling power over a number of companies, such as MOLTRANS, established in Hungary; INA, established in Croatia; Panta and Nelsa, established in Italy; ROTH, established in Austria; and SLOVNAFT, established in Slovakia. During the infringement period identified by the Commission Decision, those subsidiaries purchased indirectly, either as owners or under a financial leasing arrangement, 71 trucks from the defendant in several Member States.

15.The applicant requested, before the Fővárosi Törvényszék (Budapest High Court, Hungary) (‘the first-instance court’), that the defendant be ordered to pay EUR 530851 with interest and costs, arguing that this was the amount that its subsidiaries had overpaid as a consequence of the anticompetitive conduct established in the Commission Decision. Relying on the concept of an economic unit, it asserted the subsidiaries’ claims for damages against the defendant. For that purpose, it sought to establish the jurisdiction of the Hungarian courts based on Article 7(2) of Regulation No 1215/2012, claiming that its registered office, as the centre of the group’s economic and financial interests, was the place where the harmful event, within the meaning of that provision, had ultimately occurred.

16.The defendant objected on the ground that the Hungarian courts lacked jurisdiction.

17.The first-instance court upheld that objection and observed that the special jurisdictional rule under Article 7(2) of Regulation No 1215/2012 must be interpreted strictly and may be applied only if there is a particularly close link between the court seised and the subject matter of the dispute. It found that it was not the applicant that had paid the artificially increased prices but its subsidiaries (which were, therefore, harmed by the distortion of competition at issue). By contrast, the damage suffered by the applicant was purely financial, which does not enable its registered office to be treated as the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, and cannot lead to the jurisdiction of the Hungarian court being established.

18.That position was confirmed on appeal by an order of the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary) (‘the ‘second-instance court’). That court stated that in accordance with the Court’s case-law, the economic unit theory is applicable solely for establishing liability for the infringement of competition law and that, in essence, it does not apply to the injured party for the purpose of allocating jurisdiction. By reference to the Court’s judgment in CDC Hydrogen Peroxide, (8) it added that jurisdiction under Article 7(2) of Regulation No 1215/2012 must be determined by reference to the registered office of the company which has suffered the loss and not the registered office of its parent company.

19.The applicant appealed on a point of law before the Kúria (Supreme Court), the referring court. It claimed that the order adopted by the second-instance court should be set aside and that the proceedings should continue before the courts previously seised. It submitted, in essence, that the economic unit theory is relevant for the purpose of assuming jurisdiction in the present context and, as the sole controlling company of the group, it is directly concerned with the operations, at a profit or at a loss, of the companies within the group.

20.In its reply, the defendant claimed that the applicant had not purchased any of the trucks impacted by the cartel, and, consequently, did not suffer any damage. Furthermore, it submitted that the economic unit theory is not applicable for determining jurisdiction and that such an approach is not supported by the Court’s case-law.

21.In those circumstances, the Kúria (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Where a parent company brings an action for damages in respect of the anticompetitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of [Regulation No 1215/2012]?

(2)Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of [Regulation No 1215/2012]?

The applicant, the defendant, the Czech Government and the Commission have submitted written observations.

23.By its request for a preliminary ruling, the referring court first seeks to ascertain whether, where a parent company brings an action for damages for loss suffered solely by its subsidiaries, due to a collusive agreement on the fixing and increase in prices (thus, infringing Article 101 TFEU), (9) the jurisdiction of a court can be established on the basis of the fact that the parent company’s registered office is the place where ‘the harmful event occurred’, within the meaning of Article 7(2) of Regulation No 1215/2012. Second, that court also wonders whether the answer to that question is affected by the fact that, at the time when the subsidiaries bought the goods in question, some of them were not yet part of the applicant’s group.

24.Before addressing those questions (C), I will make introductory remarks on the special jurisdictional rule at issue and, in particular, on the nature of the harm that may lead to its application. (A). I will also recall the clarification that the Court has made concerning the connecting factors determining which court is to be seised in the specific context of actions for damages for breach of Article 101 TFEU (such as that pending before the referring court) (B).

25.Within the EU legal sphere, the issue of which court has international jurisdiction to deal with a case involving a cross-border element is resolved according to the rules set out in Regulation No 1215/2012. As has already been briefly mentioned, the general rule established under that regulation is that of the domicile of the defendant. (10)

26.That rule has several exceptions in the form of special and exclusive rules of jurisdiction describing the situations in which the defendant may or must be sued in the courts of another Member State.