AG R. de la Tour's Opinion in Volvo (C-30/20)

AG de la Tour has presented his Opinion in C-30/20 Volvo EU:C:2021:322.

https://curia.europa.eu/juris/document/document.jsf;jsessionid=F9EACB6FFCDD79BDD521B57E8E01E332?text=&docid=240241&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=10451376

In this #truckscartel Spanish referral to the #CJEU, the Madrid court asks for clarifications on a jurisdictional issue which has divided Spanish courts: does the Brussels Regulation designate the courts of a Member State (international competence), or a specific court within that Member State (internal competence - where the damage occurred)?

This judgment will build, namely, on cases Verein für Konsumenteninformation, Wikingerhof, flyLAL and Tibor-Trans.

The AG argues the issue has already been answered in case-law: Art 7(2) designates the specific court within the MS.

Personally, I do not find this to be absolutely clear in the case-law. The Spanish Supreme Court believed the opposite. Wouldn't this go beyond what is required to achieve the purposes of the Brussels Regulation? Possibly even raising issues concerning the competence of the EU to impose such a rule? Furthermore, this could lead to an additional problem and a contradiction in the AG’s position (see below the point on specialist centralized courts).

The AG proposes dearly needed additional clarifications, specific to #antitrust #privateenforcement:

(i)                 the competent court is that of the place where the trucks were purchased (place of the transaction) if the claimant is active in the same Member State, but otherwise it is the court of the claimant’s headquarters

I confess some difficulty in following the Opinion’s reasoning in this regard.

To start with, it’s a troubling interpretation of where the damage occurred. A Spanish company that buys a truck in one place, pays the surcharge in that place, but the damage is felt in its bank account and assets which may be in a different place. That’s where the loss of income is felt (flyLAL), but it’s also where the surcharge damage is felt. Tibor-Trans referred to the geographic market, which is too broad to identify a specific court. Although Verein für Konsumenteninformation referred to the place where the vehicle was purchased, I believe the ratio decidendi referred to the place as the Member State where the vehicle was purchased (a court in Oviedo has the same ease of access to evidence as the court in Madrid for a purchase in Spain). The AG did not show why ease of access to evidence and effectiveness should justify the selection between two courts of the same Member State. What’s more, the AG presents his well-intended solution as promoting private enforcement, whereas I believe it can make it harder. A company from Martinique may have to spend money on trips to go litigate in Paris, if that's where it closed the deal to buy the trucks. And it discriminates positively claimants who purchased outside of their Member State (they can sue in their home town).

The AG’s approach would also mean that a claimant could have two different locations for its damage: the place of purchase of the good for surcharges, and its seat for lost income. This can become further complicated, e.g., if it chooses the latter and a court then finds lack of evidence for the lost income.

The AG himself identifies an unfair outcome from his proposed solution: that a company which bought trucks at various locations would be required to file separate claims in those different jurisdictions, rather than aggregating them in a single claim. He suggests that an exception should be made in these cases, allowing the claim to be brought in the seat of the defendant. But the phrasing is unclear. It seems to limit this solution to when purchases were carried outside the Member State (subject to interpretation). In any case, I strain to find the logic in this approach, which would give jurisdiction to a specific court which might not be competent according to Art 7(2) as interpreted by the AG. It also treats more favourably companies who bought many trucks in different locations in comparison to small companies who only bought a couple of trucks in the same location.

Foreseeability is served just as well by both solutions. An indirect seller can equally foresee being sued in the seat of the indirect purchaser and in the place where the truck was sold. The likelihood of the pass-on defence speaks in favour of selecting the court of the claimant’s headquarters. And whether you bought within your Member State or in another should have no impact on determining where the damage was felt.

We must consider the wide-ranging consequences of the precedent which will be set here. Whatever solution is adopted by the Court, it will apply to consumers and to SMEs, in a Europe where many MS have no effective collective redress mechanisms (and the Collective Redress Directive will not force them to create them, it doesn't even apply to Antitrust claims) and several MS make it very difficult or impossible to aggregate or assign claims.

(ii)               MS may concentrate jurisdiction for antitrust actions for damages in specialized courts, subject to equivalence and effectiveness

The AG proposes an ingenious construction to conclude that, despite the Brussels Regulation defining internal competence, MS are free to concentrate (exclusive) jurisdiction for antitrust private enforcement in specialized courts. This must clearly be the outcome, for a wide range of reasons. But it sits oddly, in my view, with the conclusion that the Brussels Regulation is not limited to determining international competence, given its lack of exceptions for situations such as these. How then can a MS derogate from a rule in an EU Regulation?

A final positive note on the AG’s dismissal of the usual fear-mongering around abusive litigation, noting that antitrust claims for damages are typically follow-on and there’s nothing abusive about wanting to sue in your own home court.