Webinar

Private Enforcement #2 International jurisdiction

2nd Webinar of the « 5th Private Enforcement Conference » organised by Concurrences, with Olivera Boskovic (Professor, University Paris Descartes), Laurence Idot (Emeritus professor, University Paris II Panthéon-Assas), Jacqueline Riffault-Silk (Commercial Court honorary dean, Cour de cassation), Maciej Szpunar (Advocate-General, CJEU) and Wolfgang Wurmnest (Professor, University of Augsburg).

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SYNTHESIS

Jacqueline Riffault-Silk

The 2014 Damages Directive does not address the issue of jurisdiction in case of cross-border private claims arising after an antitrust violation. The reason for this is simple. Indeed, European rules for establishing international jurisdiction already exist. Brussels I and subsequent Brussels I recast regulations set one simple principle: jurisdiction of the place of domicile of the defendant. Yet, this principle faces several exceptions, notably mentioned in Articles 7, 8 and 25 of the Brussels I recast regulation. In addition to this, the Court of Justice of the European Union (“Court of Justice”) has provided for a more detailed set of criteria and has developed them. The nature of these private antitrust claims is ambiguous at several levels. Although they are tortious, they remain strongly influenced by aspects of a contractual nature. It may be a follow-on claim when it comes after the competition authority’s decision, or a stand-alone action when the plaintiff bears the burden to prove the existence of anticompetitive behaviour. This complexity leads to further nuances in the case-law of the Court of Justice. So, what can be the conclusion when predictability is essential? The risk of forum shopping must be avoided while keeping clear principles for all.

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