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The CJEU rules on the application of jurisdiction clauses in action for antitrust damages

In case Apple Sales International et al. v. MJA (acting as liquidator of eBizcuss.com) (C-595/17), the Court of Justice of the European Union (“CJEU”) has recently affirmed that a jurisdiction clause is applicable to an action for damages brought by a distributor against its supplier for antitrust damages, despite it does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law.

In particular, in the context of a preliminary ruling, the French Court of Cassation asked the CJEU to clarify, among others, whether a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 TFEU could apply a jurisdiction clause set out in the contract binding the parties, including in cases where that clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law. Moreover, it should be clarified whether that clause could apply where no infringement of competition law had been found to exist by a national or European authority.

More precisely, the case concerned agreements signed between Apple and its Irish subsidiary and resellers in each Member State, which included a jurisdiction clause according to which the reseller shall submit to the jurisdiction of the Irish courts while Apple reserved the right to institute proceedings against reseller before the Irish courts, the courts having jurisdiction in the place where reseller had its seat or in any jurisdiction where Apple suffered harm.  In April 2012, the French reseller eBizcuss brought proceedings against Apple for acts of unfair competition and abuse of a dominant position. While the Court of first instance upheld the objection of lack of jurisdiction raised by Apple, the Court of Appeal found the jurisdiction clause valid and the Irish courts exclusively competent. On appeal before the Court of Cassation, the judgment was quashed. In the meantime, the Court of Cassation became aware of a judgment of the Supreme Court of Portugal, Interlog and Taboada v Apple, concerning a similar jurisdiction clause and in which it was ruled that the clause applied to the parties in proceedings relating to allegation of abuse of a dominant position. In those circumstances, the French Court of Cassation decided to stay the proceedings and referred the case to the CJEU.

In the judgment under scrutiny, by recalling the CDC Hydrogen Peroxide case, the CJEU clarifies  that, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, the application of a jurisdiction clause within the contract binding the parties is not excluded on the sole ground that the clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law. Moreover, in the same context, a finding of an infringement of competition law by a national or European authority is not a prerequisite for the application of that jurisdiction clause.

 

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