MOL (Judicial cooperation in civil and commercial matters - Place where the damage occurred - Judgment) [2024] EUECJ C-425/22 (04 July 2024)

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(Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Regulation (EU) No 1215/2012 – Article 7(2) – Jurisdiction in tort, delict or quasi-delict – Place where the damage occurred – Cartel declared contrary to Article 101 TFEU and Article 53 of the Agreement on the European Economic Area – Subsidiaries established in different Member States – Direct damage exclusively suffered by subsidiaries – Action for damages from the parent company – Concept of ‘economic unit’)

REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Supreme Court, Hungary), made by decision of 7 June 2022, received at the Court on 28 June 2022, in the proceedings

composed of E. Regan, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Fifth Chamber, M. Ilešič (Rapporteur), I. Jarukaitis and D. Gratsias, Judges,

– MOL Magyar Olaj- és Gázipari Nyrt., by G. Kutai, D. Petrányi and Sz. Szendrő, ügyvédek,

– Mercedes-Benz Group AG, by K. Hetényi, M. Kovács and A. Turi, ügyvédek, M. Kocí and C. von Köckritz, Rechtsanwälte,

– the Czech Government, by M. Smolek, A. Edelmannová and J. Vláčil, acting as Agents,

– the European Commission, by V. Bottka, G. Meessen and S. Noë, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 February 2024,

1 This request for a preliminary ruling concerns the interpretation of Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings between MOL Magyar Olaj- és Gázipari Nyrt. (‘MOL’) and Mercedes-Benz Group AG concerning a claim for compensation brought by MOL for the losses suffered by it on account of anticompetitive practices committed by Mercedes-Benz Group, in breach of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; the ‘EEA Agreement’).

3 Recital 7 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’) (OJ 2007 L 199, p. 40), states:

‘The substantive scope and the provisions of this Regulation should be consistent with [Regulation No 1215/2012] and the instruments dealing with the law applicable to contractual obligations.’

4 Article 6(3)(a) of that regulation, headed ‘Unfair competition and acts restricting free competition’, states:

‘The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.’

‘(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the [subject matter] of the dispute or the autonomy of the parties warrants a different connecting 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.

(16) 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 [or she] could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.’

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

‘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 this Chapter.’

8 Chapter II of Regulation No 1215/2012, headed ‘Jurisdiction’, contains, inter alia, Section 2, headed ‘Special jurisdiction’. Article 7(2) of that regulation, which appears in Section 2, provides:

(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

9 MOL, an undertaking established in Hungary, has a controlling interest in several subsidiary companies in different Member States, namely Moltrans Kft., established in Hungary, INA d.d., established in Croatia, Panta Distribuzione SpA and Nelsa Srl, established in Italy, Roth Energie GmbH, established in Austria, and Slovnaft a.s., established in Slovakia.

10 On 19 July 2016, the European Commission adopted Decision C(2016) 4673 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) (OJ 2017 C 108, p. 6).

11 By that decision, the Commission found there to be a cartel in which Mercedes-Benz Group and 15 international truck manufacturers had participated. It considered that that cartel concerned collusion on gross list pricing for medium trucks and heavy trucks, constituting a continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, which prohibit restrictive agreements and other restrictive commercial practices. The Commission considered that the infringement had lasted from 17 January 1997 to 18 January 2011 and covered the entire European Economic Area.

12 The subsidiaries of MOL directly purchased, or leased, a total of 71 trucks from Mercedes-Benz Group during the period of that infringement.

13 On 14 October 2019, MOL brought an action for damages against Mercedes-Benz Group before the Fővárosi Törvényszék (Budapest High Court, Hungary), in support of which it claimed to have suffered harm equivalent to the overpayment that its subsidiaries had unduly made on account of the anticompetitive conduct penalised by the Commission.

14 In that application, MOL relied on the concept of ‘economic unit’. It thus relied on the international 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 economic and financial interests of the group that it forms with its subsidiaries, is the place where the ‘harmful event’, within the meaning of that provision, occurred.

15 Mercedes-Benz Group put forward an objection to jurisdiction, arguing that the provision relied on could not provide a basis for the jurisdiction of the court seised.

16 The Fővárosi Törvényszék (Budapest High 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. In that regard, it found that it was not MOL that had paid the artificially increased prices, but its subsidiaries established in other EU Member States, which were, therefore, harmed by the distortion of competition in question. By contrast, the damage suffered by MOL was purely financial, which did not enable its registered office to be treated as the place where the harmful event occurred, within the meaning of Article 7(2) of that regulation, and cannot sufficiently establish the jurisdiction of the Hungarian court.

17 The decision of that court was upheld by the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary) which 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. It stated that, in accordance with the judgment of 21 May 2015, CDC Hydrogen Peroxide, (C‑352/13, EU:C:2015:335), jurisdiction under Article 7(2) of that regulation must be determined by reference to the registered office of the company which has suffered loss and not the registered office of the parent company.

18 MOL brought an appeal on a point of law before the Kúria (Supreme Court, Hungary), in which it asked that court to set aside the ruling of the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal) and that the proceedings continue before the courts previously seised.

19 MOL submitted, in essence, that the economic unit theory is relevant to the assessment of the jurisdiction of the Hungarian courts in the dispute in the main proceedings and that, as sole controlling company of the group that it forms with its subsidiaries, it is directly concerned with the operation, at a profit or a loss, of the companies within the group.

20 Mercedes-Benz Group replied that the applicant in the main proceedings had not purchased any of the trucks concerned by the cartel in question and that it, therefore, had not suffered any harm. Furthermore, it argued that economic unit theory is not applicable for the purposes of determining the jurisdiction of the Hungarian courts and that such an approach is not supported by the Court’s case-law.

21 In that regard, the referring court points out that the Court’s case-law allows the victim of an anticompetitive practice to bring an action for damages against any of the legal entities which constitute an economic unit. However, the Court has not yet ruled, in the context of the interpretation of Article 7(2) of Regulation No 1215/2012, on whether economic unit theory may be validly relied on when that unit is the victim and not the perpetrator of the anticompetitive infringement.

22 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) 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]?’

23 By its first question, the referring court asks, in essence, whether, Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that the concept of the ‘place where the harmful event occurred’ covers the registered office of the parent company that brings an action for damages for harm caused solely to that parent company’s subsidiaries by the anticompetitive conduct of a third party, within the meaning of Article 101 TFEU, if it is claimed that that parent company and those subsidiaries form part of the same economic unit.

24 As a preliminary point, it should be recalled, as is apparent from settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context and the objectives and purpose pursued by the act of which it forms part (see, inter alia, judgment of 8 February 2024, Inkreal, C‑566/22, EU:C:2024:123, paragraph 15).

25 In respect of the wording of Article 7(2) of Regulation No 1215/2012, it is clear from that provision that 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’.

26 The Court has repeatedly held that the concept of ‘the place where the harmful event occurred’ within the meaning of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which corresponds to Article 7(2) of Regulation No 1215/2012, is intended to cover both the place where the damage occurred and the place of the event giving rise to it, with the result that the defendant may be sued, at the option of the applicant, in the courts for either of those places (judgment of 15 July 2021, Volvo and Others, C‑30/20, EU:C:2021:604, paragraph 29 and the case-law cited).

27 The Court has already had the opportunity to state in the judgment of 29 July 2019, Tibor-Trans, (C‑451/18, EU:C:2019:635, paragraph 33), concerning the same infringement of competition rules as those at issue in the main proceedings, that ‘where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 7(2) of Regulation No 1215/2012’ (see also, to that effect, judgment of 15 July 2021, Volvo and Others, C‑30/20, EU:C:2021:604, paragraph 31).

28 Moreover, the Court has held that the concept of the ‘place where the harmful event occurred’ cannot be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually occurring elsewhere, can be felt. Consequently, it stated that this concept cannot be construed as including the place where the victim claims to have suffered financial damage following initial damage arising and suffered by him in another State (judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 28 and the case-law cited).

29 The Court also ruled that damage which is no more than an indirect consequence of the harm initially suffered by other persons who were the direct victims of damage which occurred at a place different from that where the indirect victim subsequently suffered harm could not establish jurisdiction under Article 7(2) of Regulation No 1215/2012 (see, to that effect, judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 29 and the case-law cited).

30 It is apparent from the order for reference that, in this case, only the subsidiaries established in different Member States directly suffered the damage pleaded by MOL, namely the overpayment made on account of the artificially high prices applied to the purchase or lease of the 71 trucks at issue in the main proceedings following collusive arrangements constituting a single and continuous infringement of Article 101 TFEU.

31 Thus, it should be noted that the court that has international and territorial jurisdiction, in terms of the place where the damage at issue in the main proceedings occurred, is the court within whose jurisdiction the subsidiary claiming to be harmed purchased or leased goods affected by those arrangements or, in the case of purchases made by that subsidiary in several places, the court within whose jurisdiction that subsidiary’s registered office is situated.

32 Although MOL did not itself acquire any such trucks or suffer direct harm because of that infringement, it submits that the concept of the ‘place where the harmful event occurred’ must be interpreted in the light of the concept of ‘economic unit’ used in competition law.

33 In that regard, it must be noted that it is generally considered that a parent company and its subsidiary form an economic unit when, in essence, the latter is subject to decisive influence exercised by the former and does not act autonomously (see, to that effect, judgments of 27 April 2017, Akzo Nobel and Others v Commission, C‑516/15 P, EU:C:2017:314, paragraphs 52 and 53, and of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 43).

34 In such a situation, the whole group will be considered to be an ‘undertaking’ to which competition law rules are addressed and by which they, as a whole, must abide, triggering joint and several liability (see, to that effect, judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraphs 39 to 44 and the case-law cited).

35 In this case, MOL argues that given that infringement of competition law triggers joint and several liability of the entire economic unit, a mirror (or reverse) image of the same principle must apply in the case of a claim of compensation for the damage arising from an infringement of competition law affecting a member of the economic unit.

36 According to MOL, the concept of an ‘economic unit’ cannot have a different meaning depending on whether the given undertaking acts as an applicant or as a defendant. Consequently, the place of the registered office of the parent company must be considered as being the ‘place where the damage occurred’ for the purposes of the application of Article 7(2) of Regulation No 1215/2012, even if the direct damage was exclusively suffered by the subsidiaries of that company.

37 As the Advocate General stated in points 71 to 73 of his Opinion, it should be noted that, first, the arguments relied on by MOL are not supported by the Court’s case-law. Second, they are at odds with the principles underlying the rule of jurisdiction laid down in Article 7(2) of Regulation No 1215/2012, namely with the objectives of proximity and predictability of the rules governing jurisdiction, and of consistency between the forum and the applicable law. Lastly, the possibility of claiming compensation for the harm caused by a breach of competition law does is not hindered by the inapplicability of economic unit theory for the determination of the ‘place where the damage occurred’ for the purposes of the application of Article 7(2) of Regulation No 1215/2012, under conditions such as those in the main proceedings.

38 Concerning the objectives of proximity and predictability of the rules governing jurisdiction, it follows from the case-law of the Court, first, that the courts of the Member State in which the affected market is located are best placed to assess such actions for damages and, second, that an economic operator engaging in anticompetitive conduct can reasonably expect to be sued in the courts having jurisdiction over the place where its conduct distorted the rules governing healthy competition (judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 34).

39 Furthermore, in accordance with recital 15 of Regulation No 1215/2012, the rules on jurisdiction must be founded on the principle that jurisdiction is generally based on the defendant’s domicile pursuant to Article 4 of that regulation.

40 As regards the objective of consistency between the forum and the applicable law, the Court has stated that a determination to the effect that the place where the damage occurred is in the affected market also satisfies the requirements of consistency laid down in recital 7 of Regulation No 864/2007, in so far as, under Article 6(3)(a) of that regulation, the law applicable to actions for damages based on an act restricting competition is that of the country where the market is, or is likely to be, affected (judgment of 15 July 2021, Volvo and Others, C‑30/20, EU:C:2021:604, paragraphs 31 and 32 and the case-law cited).

41 Furthermore, concerning the argument relating to the obstacle to the possibility of claiming compensation for the harm resulting from a breach of competition law, which would result in the inapplicability of the concept of the ‘economic unit’ for the determination of the ‘place where the damage occurred’, for the purposes of Article 7(2) of Regulation No 1215/2012, it should be noted, as the Advocate General did in point 97 of his Opinion, that the rules on jurisdiction do not prevent the alleged victims of anticompetitive conduct from asserting their right to compensation.

42 According to the main rule of the forum under Regulation No 1215/2012, victims of such an infringement are always entitled to bring proceedings in the place where the perpetrator of the infringement is domiciled, in accordance with Article 4(1) of that regulation.

43 However, as noted in paragraph 27 above, Article 7(2) of Regulation No 1215/2012 allows proceedings to be brought in the market affected by collusive arrangements on the fixing and increase in the prices of goods either before the court within whose jurisdiction the undertaking claiming to be harmed purchased goods affected by those arrangements, or, in the case of purchases made by that undertaking in several places, before the court within whose jurisdiction that undertaking’s registered office is situated (see, to that effect, judgment of 15 July 2021, Volvo and Others, C‑30/20, EU:C:2021:604, paragraph 43).

44 Accordingly, the objectives of proximity and predictability of the rules governing jurisdiction and consistency between the forum and the applicable law, and the unhindered possibility of claiming damages for the harm arising from an infringement of competition law affecting a member of the economic unit, preclude a reverse application of the concept of ‘economic unit’ for the determination of the place where the damage occurred, for the purposes of Article 7(2) of Regulation 1215/2012.

45 Furthermore, the Court has held that the aim of legal certainty requires the national court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case (judgments of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 61, and of 8 February 2024, Inkreal, C‑566/22, EU:C:2024:123, paragraph 27).

46 In the light of all the foregoing considerations, the answer to the first question is that Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that the concept of the ‘place where the harmful event occurred’ does not cover the registered office of a parent company bringing an action for damages for harm suffered solely by its subsidiaries on account of anticompetitive conduct of a third party, which constitutes a breach of Article 101 TFEU, even if it is claimed that that parent company and those subsidiaries form part of the same economic unit.

47 By its second question, the referring court asks, in essence, whether it is relevant, for the purposes of the application of Article 7(2) of Regulation No 1215/2012, that, at the time of purchase of certain goods that were the object of an infringement of Article 101 TFEU, the subsidiaries concerned were not yet controlled by the parent company.

48 It is worth noting that that question is based on the premiss that Article 7(2) of Regulation No 1215/2012 may be interpreted as meaning that the concept of the ‘place where the damage occurred’ may include the registered office of the parent company that brings an action for damages for the harm caused to its subsidiaries due to the anticompetitive conduct of a third party.

49 In the light of the answer given to the first question, there is no need to answer the second question.

50 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

must be interpreted as meaning that the concept of the ‘place where the harmful event occurred’ does not cover the registered office of a parent company bringing an action for damages for harm suffered solely by its subsidiaries on account of anticompetitive conduct of a third party, which constitutes a breach of Article 101 TFEU, even if it is claimed that that parent company and those subsidiaries form part of the same economic unit.

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