Case C‑27/17
AB ‘flyLAL-Lithunian Airlines’
v
‘Starptautiskā lidosta “Rīga”’ VAS and ‘Air Baltic Corporation’ AS
(Request for a preliminary ruling from the Lietuvos apeliacinis teismas)
(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Special jurisdiction — Article 5(3) — Tort, delict or quasi-delict — Place where the harmful event occurred — Place where the damage occurred and place of the event giving rise to the damage — Claim for compensation for damage allegedly caused by anticompetitive conduct committed in various Member States — Article 5(5) — Operations of a branch — Meaning)
Summary — Judgment of the Court (Second Chamber), 5 July 2018
1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred — Meaning — Place where the damage occurred and place of the event giving rise to the damage
(Council Regulation No 44/2001, Art. 5(3))
2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred — Place where the damage occurred — Damage — Meaning — Loss of sales incurred as a result of anticompetitive conduct — Included
(Council Regulation No 44/2001, Art. 5(3))
3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred — Damage caused by anticompetitive conduct — Place of the market affected by that conduct
(Council Regulation No 44/2001, Art. 5(3))
4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred — Damage caused by anticompetitive conduct — Place of conclusion of an anticompetitive agreement or place of application of predatory prices
(Council Regulation No 44/2001, Art. 5(3))
5. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Dispute arising out of the operations of a branch, agency or other establishment —Criteria for determining whether legal proceedings are linked to a Member State
(Council Regulation No 44/2001, Art. 5(5))
6. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Dispute arising out of the operations of a branch, agency or other establishment — Meaning — Action seeking compensation for damage caused by abuse of a dominant position of an undertaking that has a branch which has participated in that abusive practice — Included
(Council Regulation No 44/2001, Art. 5(5))
1. See the text of the decision.
(see paras 28, 46)
2. As noted by the Advocate General in point 37 of his Opinion, a distinction must be drawn between, on the one hand, the initial damage resulting directly from the event giving rise to the damage, in which case, the place where such damage occurred may provide a basis for jurisdiction under Article 5(3) of Regulation No 44/2001, and, on the other hand, subsequent adverse consequences which are not capable of providing a basis for jurisdiction under that provision. In that regard, in paragraphs 14 and 15 of the judgment of 19 September 1995, Marinari (C‑364/93, EU:C:1995:289), the Court held that the term ‘place where the harmful event occurred’ cannot be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually arising elsewhere, can be felt. Consequently, it stated that this notion cannot be construed as including the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another State.
Likewise, the Court finds that loss of income consisting, inter alia, in loss of sales incurred as a result of anticompetitive conduct contrary to Articles 101 and 102 TFEU, may be regarded as ‘damage’ for the purposes of applying Article 5(3) of Regulation No 44/2001, which, in principle, provides a basis for the jurisdiction of the courts of the Member State in which the harmful event occurred.
(see paras 31, 32, 36)
3. Article 5(3) 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, in the context of an action seeking compensation for damage caused by anticompetitive conduct, the ‘place where the harmful event occurred’ covers, in a situation such as that at issue in the main proceedings, inter alia, the place where the loss of income consisting in loss of sales occurred, that is to say, the place of the market which is affected by that conduct and on which the victim claims to have suffered those losses.
In the present case, which concerns losses incurred by an airline on flights operated to and from the capital of the Member State where that company is established, the main market affected must be considered to be that of the Member State in which that company conducts the main part of its sales activities relating to such flights, namely the Lithuanian market.
(see paras 39, 43, operative part 1)
4. Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in the context of an action seeking compensation for damage caused by anticompetitive conduct, the notion ‘place where the harmful event occurred’ may be understood to mean either the place of conclusion of an anticompetitive agreement contrary to Article 101 TFEU, or the place in which the predatory prices were offered and applied in cases where such practices constituted an infringement of Article 102 TFEU.
(see para. 57, operative part 2)
5. See the text of the decision.
(see para. 59)
6. Article 5(5) of Regulation No 44/2001 must be interpreted as meaning that the notion of a ‘dispute arising out of the operations of a branch’ covers an action seeking compensation for damage allegedly caused by abuse of a dominant position consisting of the application of predatory pricing, where a branch of the undertaking which holds the dominant position actually and significantly participated in that abusive practice.
(see para. 66, operative part 3)