How does the court determine whether it has jurisdiction over a competition damages claim?
The Belgian courts will declare that they have jurisdiction when there is a ground for jurisdiction in either the Brussels I Recast Regulation ((EU) 1215/2012) or the Belgian Code of Private International Law, which is applicable to cases outside the scope of the Brussels I Recast Regulation (specifically when no defendant is domiciled in the EU). The most common grounds of jurisdiction are where (i) one of the defendants is domiciled in Belgium, (ii) the infringement or the loss occurred or may occur in Belgium, (iii) a jurisdiction clause exists between the parties to the dispute electing the Belgian courts as the forum for disputes, or (iv) the defendant agrees to appear before a Belgian court.
Within Belgium, actions must generally be brought before the court which has jurisdiction for the judicial district where the defendant is domiciled. Other criteria can also play a role, such as the location chosen by the parties in jurisdiction clauses or the place of the creation or performance of the litigious obligation.
A court has jurisdiction over a competition damages claim if located (i) where the plaintiff is domiciled or (ii) where the anticompetitive practice took place, as established by the Brazilian Superior Court (REsp 1708704).
- The competition damages claims typically belong to infringement actions. Pursuant to the CPL, in the case of an infringement lawsuit, the courts at the place of the defendant’s domicile or at the place where the infringement occurs shall have jurisdiction. The place where the infringement occurs includes the place where the infringement is committed and the place where the infringing consequence takes place.
- The plaintiff may choose either one of the competent courts mentioned above. If the plaintiff files a lawsuit in two or more competent courts, the court that accepts the case first shall have jurisdiction over the action.
There are currently no specialist Courts for competition law cases in Cyprus. Such claims as aforementioned can be raised within the context of a civil action before the competent District Court. Consequently, jurisdictional matters have not been raised yet.
The ECCPC provides that Courts of First Instance are competent in civil and commercial matters except those falling within the jurisdiction of any specialised court. Rulings of First Instance Courts are, generally, subject to appeal.
The Egyptian Courts have jurisdiction to hear a dispute provided that:
(i) at least one of the Defendants is domiciled in Egypt;
(ii) the dispute relates to a contract concluded or performed in Egypt;
(iii) the dispute arises against non-Egyptians who have no home or place of residence in Egypt if:
a. If they have an elected domicile in Egypt;
b. If the action relates to an asset in Egypt or to any obligation arising or performed or to be performed there, or to insolvency of which notice is published therein.
Since competition damages claims stem out of contractual breach or violation to the ECL provisions, the Egyptian courts shall have jurisdiction if one of the above criteria does exist.
Once a competition damages claim is filed, the court verifies ex officio whether it has jurisdiction over the dispute.
This ex officio verification covers international jurisdiction if the dispute presents a cross-border element (see below), as well as territorial and subject-matter jurisdiction (see above the answer to Question 6).
In a competition damages case, the court will primarily determine whether it has jurisdiction pursuant to the 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 (Recast Brussels I Regulation). The Recast Brussels I Regulation applies where the claim relates to a civil and commercial matter and the defendant is domiciled in a European Member State (whether in France or elsewhere), irrespective of the place of establishment of the claimant.
Based on the Recast Brussels I Regulation, French courts have jurisdiction over competition damages claims brought against a defendant whose residence or place of establishment is in France, or when the anticompetitive practice occurred in France or the damage is suffered in France. If the anticompetitive practice derives from contractual obligations, the competent court is the court of the place of performance of the relevant contractual obligation (i.e. for a sale of goods, the place of delivery of the goods and for a provision of service, the place of provision of the service).
The court’s jurisdiction can also be mutually agreed by the parties pursuant to jurisdiction clauses. However, the applicability of jurisdiction clauses depends on the nature of the infringement triggering the competition damages claim and the wording of these jurisdiction clauses:
- Jurisdiction clauses can be applied to an action for damages for an infringement of article 101 TFEU provided that these clauses expressly refer to disputes relating to liability incurred as a result of an infringement of competition law (see case C-352/13, CDC Hydrogen Peroxide case, ECJ judgment of 21 May 2015);
- This condition is not required in the context of a competition damages claim brought by a distributor against its supplier on the basis of an abuse of a dominant position in violation of article 102 TFEU (see case C-595/17, Apple, ECJ judgment of 24 October 2018). In the Apple case, the ECJ ruled that, while an unlawful cartel under article 101 TFEU is in principle not directly linked to a contractual relationship between a member of that cartel and a third party affected by the cartel, an abuse of a dominant position prohibited by article 102 TFEU can ’materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms’.
On a subsidiary basis, if French courts do not have jurisdiction on the basis of the above provisions, the civil code provides for a special forum based on the nationality of the parties and thus grants jurisdiction to French courts over disputes involving a French claimant or a French defendant.
The court determines its jurisdiction over a competition damages claim pursuant to the applicable rules on international, subject-matter, local and functional jurisdiction (see question 6). It is in the court’s discretion whether to (i) deal with this question upfront as a preliminary matter and deliver a partial judgment (Teilurteil) or (ii) decide on the issue when rendering the final judgment (Endurteil).
The Competition Tribunal has the same jurisdiction as the Court of First Instance under section 142 of the Competition Ordinance. The Competition Tribunal has sole jurisdiction to hear and determine follow-on actions in respect of contraventions, or involvements in contraventions, of the conduct rules, as well as allegations of contraventions, or involvements in contraventions, of the conduct rules raised as a defence.
In proceedings before the Court of First Instance where the cause of action is not limited to the defendant’s contravention or involvement in a contravention of a conduct rule, the Court of First Instance is required under section 113 of the Competition Ordinance to transfer so much of the proceedings before the Court that are within the jurisdiction of the Competition Tribunal.
The law provides that civil courts have the power to adjudicate injustices under the Competition Law. The court which will have jurisdiction - a Magistrate Court or a District Court - depends on the sum of the damages which is being sued; if it exceeds ILS2.5 million (approx. 700,000 USD), it will be held in a District Court and, if not, in a Magistrate Court.
With regard to extraterritorial jurisdiction, extraterritorial reach can be made in certain circumstances, if both essential and procedural requirements apply. The question of extraterritorial jurisdiction in competition claims was mainly discussed in connection with cartel cases, and therefore most of the case law on this subject was developed in this context.
The Israeli Competition Authority (“ICA”) applies the 'Effect Doctrine' to acquire extraterritorial jurisdiction. The ICA ruled the level of 'effects' on the local market must show a clear link between the conduct outside Israel and the effect in the local market, rather than indirect or negligible effect. It was also ruled that when an arrangement is made outside Israel and is not entirely directed at the Israeli market, and when the foreign collaborators were not actively engaged in implementing the arrangement in Israel, the link to Israel is rendered insufficient.
In addition, in civil litigation, there is also a procedural requirement, besides the essential requirement for extraterritorial application of the Israeli law. In order to extend the jurisdiction of the local courts over foreign defendants located outside Israel, it is necessary to obtain permission for service of process outside the border, in accordance with the provisions of Regulation 500 of the Civil Procedure Regulations.
So far, it was argued for application of Regulation 500(7), which establishes a link to Israel when an act or omission subject of the claim was committed within the borders of the state.
In recent years there have been a growing number of class actions brought against multinational cartel conduct. According to recent judgments, in order to establish a link (according to Regulation 500), it must be shown that the act occurred in Israel and it is not enough to show that damage was caused in Israel. However, the Supreme Court expressed its discontent with having Israeli consumers suffer indirect damage from cartels occurring outside Israel and criticized the inaptness of the regulation.
In September 2019, a significant amendment to the Civil Procedure Regulations will take effect and the wording set forth in Regulation 500(7) will be changed and extended to actions that have caused damage that occurred within Israel. Only after the application of the amendment will it be possible to study the manner in which it is applied by the courts.
For a Type A claim, the court follows the provision on jurisdiction in the relevant contract (e.g., a purchase and sale agreement between the claimant and defendant for the products affected by a price-fixing cartel). If there is no such provision, the claimant may submit its complaint to the district court having jurisdiction over (i) the principal office or business office of a defendant company; or (ii) the location where the tort was committed or where the damage occurred.
For a Type B claim, the Tokyo District Court has exclusive jurisdiction.
The court has to examine ex officio whether it is has jurisdiction.
For cases with international aspects, the rules of European or Dutch private international law become relevant. The Brussels Recast Regulation ((EU) No. 1215/2012) applies in proceedings instituted on or after 10 January 2015 whereby the defendant is domiciled in a EU member state. The general rule is that the Dutch courts have international jurisdiction when the defendant is domiciled in the Netherlands (article 4). Furthermore, if the claim is based on tort, the Dutch courts have international jurisdiction if the harmful event occurred in the Netherlands (article 7(2)) and in the event there is a Dutch anchor defendant (article 8(1)). In the latter case it is required that the claims against the anchor defendant and the other defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceeding. If the parties, regardless of their domicile, 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, unless the agreement is null and void as to its substantive validity under the law of that Member State, article 25(1).
In the event that the Brussels Recast Regulation is not applicable, the DCCP provides similar rules for establishing jurisdiction as the Brussels Recast.
Under Philippine laws, jurisdiction is conferred by statute. The PCA provides that the RTC has jurisdiction over all criminal and civil cases involving violations of the PCA.
 - Foronda-Crystal v. Son, GR No. 221815, 29 November 2017
Polish courts could have domestic jurisdiction over a competition damages claim if the defendant is domiciled in Poland or domiciled outside of Poland if the infringement took place or had its effects in Poland.
Since there is no specific court assigned to decide on competition damages claims in Poland, the general rules on territorial jurisdiction apply. Hence, the claimant may file the statement of claim either before the court which has jurisdiction over the territory where the defendant has its place of residence or where it has its registered office, or where the event giving rise to the claim has occurred.
If proceedings for competition damages claims caused by the same infringement of competition law are pending before several courts, each of those courts may request for other matters to be referred, for the purpose of their joint consideration and resolution, if justified on the grounds of expediency or to avoid conflicting judgments. An action may also be brought before a court before which proceedings for compensation for damage caused by the same person or entity are already pending.
Regarding regulatory issues, Portuguese courts are competent to decide in respect of the validity of decisions issued by the Portuguese Competition Authority. As to the remaining claims, Portuguese courts are entitled to take on a competition law case if internationally competent under the following criteria: (i) if European regulations or other international instruments so determine; (ii) if a valid choice of forum clause executed by the parties so determines; or (iii) if one of the following cases is verified: (a) the defendant, or one of the defendants, is domiciled, or is registered, has an effective office, branch, agency subsidiary or delegation in Portugal; or (b) the legal proceedings should be initiated in Portugal according to any criteria of territorial jurisdiction; or (c) the cause of action of some of the relevant facts were carried out in Portugal; or (d) in cases the right to claim may only become effective through legal proceedings initiated in Portugal, or if it is too burdensome for the claimant to initiate the legal proceedings abroad, provided that there is an important person or real link between the subject of litigation and the Portuguese jurisdiction.
If Portuguese courts are internationally competent, the Competition, Regulation and Supervision Court shall be competent to rule in respect of (i) decisions, appeals, reviews and their respective enforcement provided by the Portuguese Competition Authority; (ii) private enforcement actions based exclusively on breach of competition law, and the eventual right of recourse between the defendants; or (iii) requests for access to evidence relating to such actions, as well as corresponding rules of other Member States.
A court will determine that it has jurisdiction if either the defendant is domiciled within its jurisdiction or the alleged damages occurred within its jurisdiction.
Infringements of competition laws may cause damage in several jurisdictions. The EU Damages Directive does not regulate these jurisdictional issues. In Sweden, it will be the Brussels I Regulation and the Lugano Convention that regulate whether the Patent and Market Court has jurisdiction in a private competition case involving EEA members. In cases involving non-EU states, there is no general rule determining whether Sweden has jurisdiction or not, so cases are evaluated on a case-by-case basis, but, basically, Swedish forum rules follow the general principle that actions should be brought in the state where the defendant resides or has its seat. Alternatively, the Patent and Market Court also has jurisdiction if the infringement took place or if the damage occurred in Sweden. Swedish courts do also recognise prolongation agreements, where the parties – if at least one of them is domiciled in a Member State – have agreed that Swedish courts should have jurisdiction to try a claim for antitrust damages.
As long as Swedish courts have jurisdiction, private actions may also be brought against foreign corporations or individuals and by foreign corporations or individuals. However, it should be noted that foreign (non-EEA domiciled) claimants may, if the defendant so requests, be required to provide security, usually in the form of a bank guarantee, covering all legal costs that may be borne by the defendants.
As competition damages claims are essentially private tort claims, they are subject to the provisions set out in the Code of Obligations and to the provisions regulating claims regarding tortious acts. Therefore, whilst determining whether it has jurisdiction, the court will consider the Civil Procedure Law No. 6100. Based on the relevant law, Turkish courts have jurisdiction if (i) the act causing competition law infringement took place in Turkey; (ii) the damages were incurred or may be incurred in Turkey;(iii) the residency of the injured party is in Turkey; and (iv) the residency of the defendant is in Turkey.
Section 86 of the CCA confers jurisdiction on courts to determine matters arising under the CCA including a claim for competition damages. Each court will decide whether it has jurisdiction to determine a proceeding commenced under the CCA.
The CCA applies to conduct that occurs within Australia. It also applies to conduct occurring outside Australia by Australian citizens or residents and bodies corporate that are incorporated in or carrying on business in Australia.
The prohibitions on exclusive dealing and resale price maintenance extend to conduct occurring outside Australia that is related to the supply of goods or services in Australia. There are also specific provisions in relation to certain conduct that constitutes misuse of market power in the Trans-Tasman market (Australia and/or New Zealand).
Canadian courts have jurisdiction simpliciter over competition damages claims where the defendants are present in Canada, or where there is a real and substantial connection to Canada (or the province in which the action is commenced). Canadian courts have assumed jurisdiction over claims alleging foreign conspiracies where the conspiracies are alleged to have effects in Canada or were intended to affect prices in Canada. In cases where a Canadian court has jurisdiction simpliciter, the court retains the discretion to stay the proceeding on the basis that there is another forum that is more appropriate for determination of the dispute (forum non conveniens).
The Court will determine whether or not it has jurisdiction by applying the criteria set out under EU Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Bruxelles I-bis) and in the Italian Statute on Private International Law of 31 May 1995, No. 218.
Both provide that in matters relating to tort, delict or quasi-delict, the courts of the place of residence, domicile or registered office of the defendant or, alternatively, of the place where the harmful event occurred or may occur have jurisdiction.
Furthermore, besides the specific rule illustrated under answer 6 above, the same criteria are applied also for the determination of the competent forum pursuant to the provisions on the subject-matter contained in the Italian Code of Civil Procedure (ICCP), as interpreted by the Italian courts.
In order to rule on its own jurisdiction over the case, the court shall proceed to a summary prima faciae examination of the merits: it will determine whether, broadly, the claim appears to be a request for reparation of a prejudice generated by a breach substantially presenting the features of a competition law infringement.
Should there already be a sanctioning decision issued by a competition authority on such infringement, a high level review of the nexus between the sanctioned infringement and the infringement alleged by the plaintiff shall be performed.
(a) The European regime
Currently, the question of jurisdiction as between EU member states of the EU (“EU Member States”) is governed by Regulation (EU) No 1215/2012 (the “Brussels Recast Regulation”) for claims arising on or after 10 January 2015, and by Council Regulation (EC) 44/2001 (“the Brussels I Regulation”) for claims arising before 10 January 2015 (together, the “Brussels Regulations”). Equivalent rules apply to jurisdiction as between the EU Member States and Switzerland, Iceland and Norway (the “Lugano States”, and together with the EU Member States, the “Member States”) via the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (the “2007 Lugano Convention”).
These rules provide that a defendant ought to be sued in the courts of the Member State in which it is domiciled (Article 2(1) of the Brussels I Regulation; Article 4 of the Brussels Recast Regulation; and Article 2 of the 2007 Lugano Convention).The question of where a defendant “is domiciled” is to be determined by the national law of the court which is being asked to accept jurisdiction. However, a corporate defendant is domiciled at the place where it has its (i) statutory seat (which, in the UK, means the place where it has its registered office), (ii) central administration, or (iii) principal place of business. It is sufficient if any one of these three limbs is satisfied.
However, there are exceptions, including that:
- For matters relating to tort (including breach of statutory duty), a person domiciled in a Member State may be sued in the courts of the place where the “harmful event” occurred or may occur, i.e. (i) the place where the wrongful act or omission took place, or (ii) where the damage occurred. The claimant has the option to sue in either jurisdiction.
- A person domiciled in one Member State, “where he is one of a number of defendants” domiciled in other Member States, may be sued in another place where any of the other defendants are domiciled “provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. The effect of this exception is that claimants can use claims against defendants domiciled in one Member State as a way of “anchoring” their claims against defendants which are domiciled in a different Member State.
The English courts have taken an expansive approach to their jurisdiction in competition damages actions, showing themselves particularly willing to claim jurisdiction over defendants using this anchoring mechanism, even, for example, where the anchor defendant was not an addressee of an infringement decision by the Commission but was alleged to have implemented the arrangement (see Toshiba Carrier UK Ltd & Ors v KME Yorkshire Ltd & Ors  EWHC 2665 (Ch) and  EWCA Civ 1190; Vattenfall AB v Prysmian SpA  EWHC 1694 (Ch)).
See question 24 below as to the impact of Brexit.
(b) Jurisdiction over non-Member State defendants
Where a defendant is not domiciled in a Member State, the jurisdiction of the English Courts must be determined in accordance with the common law of England and Wales (Article 4(1) of the Brussels I Regulation; Article 6(1) of the Brussels Recast Regulation; and Article 4(1) of the 2007 Lugano Convention).
Under English law, the primary question is whether the defendant can properly be served with proceedings. Where a defendant is considered to be within the jurisdiction, proceedings can be served on that defendant in England and Wales irrespective of whether the claim has any other connection with the jurisdiction. A corporate defendant is considered to be in the jurisdiction for example, if (a) it has a place (e.g. a registered office) in England and Wales where it carries on its activities, (b) it has appointed English solicitors to accept service on its behalf, or (c) it has appointed an agent under contract to accept service.
Where the defendant cannot be served in England and Wales, claimants are required to obtain the permission of the English courts to serve proceedings out of the jurisdiction. To do so, claimants will be required to demonstrate the following:
- that they have a good arguable case that each claim falls within one of the permitted "jurisdictional gateways". These include (i) where “damage was sustained…within the jurisdiction” or where “a claim is made against a person (the “defendant”) on whom the claim form has been or will be served…and (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim”;
- that the claim has a reasonable prospect of success; and
- that England is the proper forum for the resolution of the dispute.
Even if the English courts have jurisdiction, it is open to the defendant to seek a stay of proceedings on the basis of forum non conveniens, i.e. that there is another jurisdiction more appropriate to accept proceedings. This is fact-dependent and must be assessed on a case by case basis. However, even if the defendant can prove forum non conveniens, the English courts may refuse a stay if the claimant can show that it would be unjust to stay proceedings in England (for example, because the claimant would not receive a fair trial in the other state).
Where there is a jurisdiction clause in favour of England, the English Courts will only stay proceedings if there are strong reasons not to hold the parties to that agreement.
Please see the answer to question 6 above.
Generally, in order to exercise jurisdiction over a case, a court must have both jurisdiction over the parties (ie personal jurisdiction) and jurisdiction over the subject matter. For antitrust claims brought in federal court,
- Subject matter jurisdiction is present where either (i) the case involves rights or obligations arising from the Constitution or federal laws such as the federal antitrust statutes, 28 USC § 1331, or (ii) the amount in controversy exceeds $75,000 and the parties are diverse in citizenship or state of incorporation. 28 USC § 1332. Relevant federal antitrust statutes conferring subject-matter jurisdiction in the federal courts include (i) the Sherman Act, which invests jurisdiction in the district courts of the United States to prevent and restrain violations of the Act, 15 USC § 4; (ii) the Clayton Act, which allows the recovery of damages by ‘any person … injured in his business or property by reason of anything forbidden in the antitrust laws.’ 15 USC § 15; and (iii) the Foreign Trade Antitrust Improvement Act [FTAIA], which governs antitrust suits involving non-import trade or commerce with foreign nations.
- Personal jurisdiction may be exercised over an out-of-state defendant who has certain minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co v Washington, 326 US 310 . General personal jurisdiction (ie over any and all claims) may be exercised over foreign corporations when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum state. Goodyear Dunlop Tires Operations, SA v Brown, 564 US 915, 919 . Accordingly, general personal jurisdiction will exist in a corporation’s state of incorporation or in the state of its principal place of business (ie headquarters). If general personal jurisdiction is unavailable, specific personal jurisdiction may arise in a particular case depending on the “affiliation between the forum and the underlying controversy,” Id.