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*PIL Case Law

Published on January 29th, 2019 | by efi kloyeri

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Summary: C-595/17 regarding the Area of freedom, security and justice-Jurisdiction in civil and commercial matters

Key-Words: Reference for a preliminary ruling-Area of freedom, security and justice-Jurisdiction in civil and commercial matters-Regulation (EC) No 44/2001-Article 23-Jurisdiction clause in a distribution contract-Action for damages by the distributor based on the infringement of Article 102 TFEU by the supplier”

Α) The facts of the main proceedings

In 2002 Apple Sales International, a company established under Irish law, entered into a contract with eBizcuss recognising the latter as an authorised reseller of Apple products. That contract, by which eBizcuss undertook to semi‑exclusively distribute its contractual partner’s products, contained a jurisdiction clause conferring jurisdiction on the Irish courts. In 2012 eBizcuss brought proceedings against Apple Sales International, Apple Inc., a company established under United States law, and Apple Retail France, a company established under French law, before the tribunal de commerce de Paris (Commercial Court, Paris, France), in respect of an action to establish liability for acts of unfair competition and abuse of a dominant position. The court upheld the objection of lack of jurisdiction raised by Apple Sales International on the grounds that a jurisdiction clause conferring jurisdiction on the Irish courts was stipulated in the contract between that company and eBizcuss. The cour d’appel de Paris (Court of Appeal, Paris, France) dismissed the appeal by eBizcuss against that judgment. In 2015, the Cour de cassation (Court of Cassation, France) quashed that judgment on the grounds that the cour d’appel de Paris (Court of Appeal, Paris) had infringed Article 23 of Regulation No 44/2001. In 2016, the cour d’appel de Versailles (Court of Appeal, Versailles, France) upheld the appeal by eBizcuss and referred the case back to the tribunal de commerce de Paris (Commercial Court, Paris). Apple Sales International, Apple Inc. and Apple retail France lodged an appeal against that decision before the referring court, which refer red the following questions to the Court for a preliminary ruling:

Β) The questions referred

(1) Must Article 23 of Regulation No 44/2001 be interpreted as allowing 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 to apply a jurisdiction clause set out in the contract binding the parties?

(2) If the first question is answered in the affirmative, must Article 23 of Regulation No 44/2001 be interpreted as allowing 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 to apply a jurisdiction clause within 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?

(3) Must Article 23 of Regulation No 44/2001 be interpreted as allowing 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 to disregard a jurisdiction clause within the contract binding the parties where no infringement of competition law has been found to exist by a national or European authority?

C) Legal Context

Article 23 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

D) Consideration of the questions refereed

  1. Article 23 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 must be interpreted as meaning that the application, in the context of an action for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, of a jurisdiction clause within the contract binding the parties is not excluded on the sole ground that that clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law.
  2. Article 23 of Regulation No 44/2001 must be interpreted as meaning that it is not a prerequisite for the application 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, that there be a finding of an infringement of competition law by a national or European authority.

 Eftihia- Angie Klogkiri

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