Provisional text
JUDGMENT OF THE COURT (Fifth Chamber)
11 July 2024 (*)
(Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EC) No 1393/2007 – Service of judicial and extrajudicial documents – Action for compensation for damage caused by a practice prohibited by Article 101(1) TFEU and by Article 53 of the Agreement on the European Economic Area – Document instituting proceedings served at the seat of a subsidiary of the defendant – Validity of the writ of summons – Charter of Fundamental Rights of the European Union – Article 47 – Right to effective judicial protection)
In Case C‑632/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 7 October 2022, received at the Court on 10 October 2022, in the proceedings
Volvo AB
v
Transsaqui SL,
in the presence of:
Ministerio Fiscal,
THE COURT (Fifth Chamber),
composed of E. Regan, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fifth Chamber, M. Ilešič (Rapporteur), I. Jarukaitis and D. Gratsias, Judges,
Advocate General: M. Szpunar,
Registrar: N. Mundhenke, Administrator,
having regard to the written procedure and further to the hearing on 18 October 2023,
after considering the observations submitted on behalf of:
– Volvo AB, by N. Gómez Bernardo, abogada,
– Transsaqui SL, by J. Bonet Martínez, J. Bonet Sánchez and A. Penalba Ferrer, abogados, and by F. Pérez Cruz, procurador,
– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,
– the Czech Government, by A. Edelmannová, M. Smolek and J. Vláčil, acting as Agents,
– the European Commission, by S. Baches Opi, M. Domecq and S. Noë, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 11 January 2024,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 101 TFEU, and Article 53 of the Charter.
2 The request has been made in proceedings between Volvo AB and Transsaqui SL concerning damage allegedly suffered by the latter as a result of an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’) committed by several truck manufacturers, including Volvo.
The legal framework
European Union law
Regulation (EC) No 1393/2007
3 Recitals 2, 8, 11, 12, 16 and 17 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79), stated:
‘(2) The proper functioning of the internal market entails the need to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States.
…
(8) This Regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party.
…
(11) In order to facilitate the transmission and service of documents between Member States, the standard forms set out in the Annexes to this Regulation should be used.
(12) The receiving agency should inform the addressee in writing using the standard form that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not either in a language which he understands or in the official language or one of the official languages of the place of service. …
…
(16) In order to facilitate access to justice, costs occasioned by recourse to a judicial officer or a person competent under the law of the Member State addressed should correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and non-discrimination. The requirement of a single fixed fee should not preclude the possibility for Member States to set different fees for different types of service as long as they respect these principles.
(17) Each Member State should be free to effect service of documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.’
4 Article 1 of that regulation, entitled ‘Scope’, provided, in paragraphs 1 and 2:
‘1. This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii).
2. This Regulation shall not apply where the address of the person to be served with the document is not known.’
5 Article 5 of that regulation, entitled ‘Translation of documents’, read as follows:
‘1. The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.
2. The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs.’
6 Article 8 of that regulation, entitled ‘Refusal to accept a document’, provided in paragraph 1:
‘The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages:
(a) a language which the addressee understands; or
(b) the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected.’
7 Article 11 of Regulation No 1393/2007, entitled ‘Costs of service’, provided, in the second subparagraph of paragraph 2 thereof, as follows:
‘Costs occasioned by recourse to a judicial officer or to a person competent under the law of the Member State addressed shall correspond to a single fixed fee laid down by that Member State in advance which respects the principles of proportionality and non-discrimination. Member States shall communicate such fixed fees to the [European] Commission.’
8 In accordance with Article 14 of that regulation:
‘Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.’
9 Article 19 of that regulation, entitled ‘Defendant not entering an appearance’, provided, in paragraph 1:
‘Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that:
(a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory; or
(b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation;
and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.’
Regulation (EU) No 1215/2012
10 Article 7 of 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 (OJ 2012 L 351, p. 1), entitled ‘Special jurisdiction’ provides:
‘A person domiciled in a Member State may be sued in another Member State:
…
(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
…’
11 Under Article 28(2) and (3) of that regulation:
‘2. The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.
3. Article 19 of Regulation [No 1393/2007] shall apply instead of paragraph 2 of this Article if the document instituting the proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation.’
12 Article 45(1) of Regulation No 1215/2012 provides:
‘On the application of any interested party, the recognition of a judgment shall be refused:
…
(b) where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
…’
13 According to Article 63(1) of that regulation:
‘For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:
(a) statutory seat;
(b) central administration; or
(c) principal place of business.’
Spanish law
14 Article 155 of Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on Civil Procedure), of 7 January 2000 (BOE No 7, 8 January 2000), provides:
‘1. Where the parties are not represented by a court agent or on the occasion of the initial service of process or an order to attend on the defendant, notices shall be served by reference to the parties’ addresses. …
2. The applicant’s address shall be that indicated in the application, request or application to institute proceedings. The applicant shall also designate one or more of the places referred to in the following paragraph of this Article as the defendant’s address for the purposes of the first summons or writ of summons. If the applicant designates several places as addresses, he or she shall indicate the order in which, in his or her opinion, communication can be successfully effected.
…
3. For the purposes of the service of notices, the following may be designated as an address for service: the address which appears in local authority records or is officially recorded for other purposes, or the address which appears in the official register or in publications of professional associations in the case, respectively, of undertakings and other entities or of persons who practise a profession in which membership of a professional association is compulsory. The place where a non-temporary professional or employment activity is carried out may also be designated as an address for those purposes
…
If the action is brought against a legal person, the address of anyone who is listed as a director, manager or agent of the company, or as a chairperson, member or representative of the board of any association listed in an official register may also be indicated as an address for service.
…’
15 Under Article 510(1) of that law:
‘A final judgment may be revised where:
…
4. The case has been won unfairly as a result of bribery, violence or fraudulent contrivance.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
16 On 19 July 2016, the Commission adopted Decision C(2016) 4673 (1) relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39824 – Trucks), a summary of which was published in the Official Journal of the European Union of 6 April 2017 (OJ 2017 C 108, p. 6). Volvo is one of the addressees of that decision.
17 In that decision, the Commission found that 15 truck manufacturers, including Volvo, had participated in a cartel taking the form of a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement, relating to collusive arrangements concerning, first, the fixing of prices and the increase of gross prices for medium commercial vehicles and heavy-duty trucks in the European Economic Area (EEA) and, secondly, the timing and the passing on of costs relating to the introduction of the emission technologies imposed by the Euro 3 to Euro 6 standards.
18 In the case of Volvo, that infringement was established for the period from 17 January 1997 to 18 January 2011.
19 On 12 July 2018, Transsaqui, which had acquired two Volvo trucks during 2008, brought an action for damages against Volvo before the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia, Spain), seeking compensation for the loss allegedly suffered by it as a result of the cartel established in the decision of 19 July 2016, referred to in paragraph 16 of this judgment, and corresponding to additional costs which it estimates at EUR 24 420.69.
20 In its application, Transsaqui stated that Volvo's registered office was in Gothenburg (Sweden), but specified that the summons to appear was to be served at the registered office of that company’s subsidiary in Spain, Volvo Group España SAU (‘Volvo España’), established in Madrid (Spain).
21 The Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) declared the action admissible and, in order to summon Volvo to appear in the proceedings and respond to the application, sent it, to the address of the registered office of Volvo España, a registered letter containing a copy of the application and the documents accompanying it. The letter was refused and a handwritten reference to Volvo’s address in Sweden was included.
22 At a hearing before that court, Transsaqui submitted observations in which it described Volvo España’s refusal to accept the summons against Volvo as a delaying tactic in bad faith, arguing that, since Volvo España was wholly owned by Volvo, they formed a single undertaking within the meaning of competition law.
23 On 22 May 2019, that court issued a decision in which it agreed, on the basis of the principle of the ‘unity of undertakings’, that Volvo should be served with a summons to appear at the domicile of its subsidiary in Spain. In order to proceed with this summons, the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) sent a request for judicial cooperation to the Madrid courts.
24 On 5 September 2019, they attempted to serve Volvo at the address of Volvo España. However, a lawyer, who presented himself as the legal representative of Volvo España, refused service, arguing that it should be effected at Volvo’s headquarters in Sweden.
25 On 30 October 2019, when service was again attempted at Volvo España’s address, the summons was in fact delivered to a person who identified himself as belonging to Volvo España’s legal department.
26 After each of those attempts at service, Volvo España sent a letter to the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) setting out its reasons for not agreeing to receive the summons intended for Volvo.
27 It claimed, in particular that:
– Volvo España is a legal entity separate from Volvo, that it is not a director of Volvo and that it does not have the power to receive summonses on behalf of any other entity;
– in accordance with Spanish procedural law, Volvo must be summoned at its registered office;
– where the defendant is domiciled in another Member State of the European Union, service must be effected in accordance with Regulation No 1393/2007;
– the applicant may not resort to an alternative address unrelated to the defendant and such conduct constitutes a fraudulent manoeuvre which, in accordance with Article 45(1)(b) of Regulation No 1215/2012, is moreover liable to result in the non-recognition, in another Member State, of a judgment given by default against the defendant.
28 Taking the view that the summons had been validly served on Volvo and that that company had not appeared in the proceedings within the period prescribed, the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) declared it to be in default and summoned the parties to the preliminary hearing provided for by Spanish procedural law in order to clarify the terms of the dispute and to propose evidence. That court attempted to serve this decision on Volvo at the address of Volvo España, but Volvo España again refused service, arguing that Volvo’s registered office was in Sweden.
29 On 26 February 2020, that court granted Transsaqui’s claim and ordered Volvo to pay Transsaqui compensation of EUR 24 420.69, plus statutory interest from the date of purchase of the trucks, and to pay the costs (‘the judgment of 26 February 2020’).
30 That judgment was notified to Volvo by registered letter with acknowledgement of receipt sent to the address of Volvo España, which accepted it on 10 March 2020. However, Volvo España sent a letter to the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) in which it contested the fact that the judgment had thus been validly notified to Volvo, while reiterating the arguments it had previously put forward.
31 Transsaqui asked that court to tax the costs which Volvo had been ordered to pay. That court, which considered that its judgment of 26 February 2020 had become final, proceeded to tax the costs.
32 By registered letter with acknowledgement of receipt sent to the address of Volvo España, the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) invited Volvo to a taxation hearing in order to allow it to contest the costs so taxed. That letter was delivered to a person who was present at that address and who signed the acknowledgement of receipt.
33 Several days later, Volvo España sent a letter to that court in which, for the reasons given above, it contested the fact that the tax assessment of costs against Volvo had been validly notified.
34 Considering that Volvo had not challenged the costs within the period prescribed by law, the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) issued a decision approving their taxation in the sum of EUR 8 310.64. That decision was notified to Volvo by registered letter with acknowledgement of receipt sent to the address of Volvo España, where it was accepted by a person present at that address who signed the acknowledgement of receipt. Subsequently, Volvo España sent a letter to that court in which it denied that the said decision had been validly notified to Volvo.
35 That court granted Transsaqui’s request to enforce the judgment of 26 February 2020 and ordered Volvo to declare within 10 days the assets and rights it held, with a view to their seizure. The decisions were notified to Volvo España’s registered office on 17 March 2021.
36 On 15 June 2021, on the basis of Article 510(1)(4) of Law 1/2000 on Civil Procedure, Volvo applied to the Tribunal Supremo (Supreme Court, Spain), the referring court, for a review of the judgment of 26 February 2020, which had become final. In support of its application, Volvo argued that Transsaqui had obtained the judgment by means of a fraudulent manoeuvre. It added that it had indirect knowledge of the existence of that judgment when the decisions ordering its enforcement were served on Volvo España on 17 March 2021.
37 For its part, Transsaqui submits that Volvo acted in bad faith by adopting a malicious procedural strategy intended to induce it, like many other applicants in a similar situation, to withdraw its action. It also claims that the Juzgado de lo Mercantil n. 1 de Valencia (Commercial Court No 1, Valencia) agreed that the summons to appear and notifications to Volvo should be served at the address of Volvo España for reasons of procedural economy and in accordance with the principle of the ‘unity of undertakings’. Furthermore, Volvo España’s refusal on the grounds that it and Volvo are separate legal entities is unfounded, given that the two companies together form a single undertaking for the purposes of competition law.
38 The referring court, which starts from the premiss that the existence of an economic unit between the parent company and its subsidiary could justify service on the latter of measures intended for the former, asks, in essence, whether Article 47 of the Charter, read in conjunction with Article 101 TFEU, must be interpreted as precluding a summons to a court of a Member State, addressed to a parent company whose registered office is in another Member State, from being served at the address for service of a subsidiary of that parent company situated in the Member State in which the action was brought, where the subsidiary does not plead any circumstance which would preclude the existence, between those two companies, of a unity of undertakings for the purposes of competition law.
39 According to that court, first, to require, in such circumstances, that service be effected at the registered office of the parent company would entail high translation costs which could complicate, or even hinder, the exercise of the right to an effective judicial remedy by persons injured by infringements of competition law and seriously undermine the effectiveness of Article 101 TFEU, in that such a requirement would be likely to deter many injured persons from seeking redress.
40 Where the amount of damages claimed is small and the claimant is a small or medium-sized undertaking, such costs could constitute a serious obstacle to the right to an effective judicial remedy. That would be all the more so where, as is the case in Spain, the procedural law of the Member State concerned provides that, if the claim is upheld in part, each party is to bear its own costs and half of the common costs.
41 Secondly, the obligation to effect service of judicial documents in another Member State would entail an extension of time limits which would be justified only where service at an address in the Member State in which the court proceedings are taking place would prevent the defendant from actually taking cognisance of the dispute, having regard to the circumstances of the case.
42 The referring court adds that it would be paradoxical if the person harmed by an infringement of competition law could bring an action against a subsidiary and the latter could be convicted for the conduct of the parent company, while the subsidiary could not be served with a summons to appear or be served with judicial documents directly aimed at the parent company, with which it forms a single undertaking for the purposes of competition law.
43 Even assuming that it is consistent with the requirements of the right to an effective remedy, guaranteed in Article 47 of the Charter and also enjoyed by the defendant, to serve a summons to appear on a parent company at the address of its subsidiary in the Member State where the case is being heard, that court points out that, under Article 53 of the Charter, no provision of the Charter is to be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by the constitutions of the Member States. In other cases concerning actions for damages brought by purchasers of trucks who were also victims of the cartel referred to in paragraph 17 of this judgment, the Tribunal Constitucional (Constitutional Court, Spain), hearing an action brought by the parent company which had failed to obtain annulment of the proceedings in which the legal documents intended for it had been served on its subsidiary, held that the fundamental rights and freedoms recognised by the Spanish Constitution to the defendant had been infringed.
44 Consequently, Article 53 of the Charter could preclude the service of a summons to appear on a parent company but delivered to the address of its subsidiary, even though there is an economic unit between them, from being regarded as validly served on it precisely because of the existence of such a unit. However, the referring court questions whether such an interpretation of Article 53 of the Charter would not create a serious obstacle to the right to an effective judicial remedy of the person harmed by the agreement, as well as to the effectiveness of Article 101 TFEU.
45 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the [Charter], in conjunction with Article 101 TFEU, in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?
(2) If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Spanish Tribunal Constitucional (Constitutional Court) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?’
The questions referred for a preliminary ruling
The first question
46 By its first question, the referring court asks, in essence, whether Article 47 of the Charter, read in conjunction with Article 101 TFEU, must be interpreted as meaning that a parent company which is the subject of an action for compensation for damage caused by an infringement of competition law is validly served with a summons where service of the document instituting the proceedings was effected at the address of its subsidiary, which is domiciled in the Member State in which the action was brought and with which it forms an economic unit.
47 The referring court questions, in particular, whether, having regard to the right to an effective remedy guaranteed in Article 47 of the Charter, the fact that it was found, in the context of the interpretation of Article 101(1) TFEU, that a parent company and one of its subsidiaries whose registered office is in another Member State formed, at the material time, a single economic unit could justify service of documents on the former at the address where the latter was domiciled, in order to reduce the costs of translation and service of judicial documents drawn up by the applicant and to avoid an increase in the length of proceedings.
48 In that regard, the Court has, admittedly, held that, in the context of an action for damages which is based on the existence of an infringement of Article 101(1) TFEU found by the Commission in a decision, a legal entity which is not designated in that decision as having committed the infringement of competition law may nevertheless be held liable on that basis due to conduct amounting to an infringement committed by another legal entity, where those two entities form part of the same economic unit and thus constitute an undertaking which is the perpetrator of the infringement within the meaning of that Article 101 TFEU (judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 48).
49 However, first, although the concept of ‘undertaking’ and, through it, that of an ‘economic unit’, automatically entails joint and several liability between the entities making up the economic unit at the time when the infringement was committed, such an undertaking nevertheless has no legal personality of its own, and is autonomous in relation to the legal entities of which it is composed, so that the victim of the anticompetitive practice concerned cannot bring an action for damages against the undertaking as such, but must necessarily bring an action against one of the legal entities of which it is composed (see, to that effect, judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraphs 44 and 51).
50 Secondly, even if a subsidiary were to form a single economic unit with its parent company within the meaning of substantive competition law, that circumstance does not imply that the subsidiary has been expressly authorised or designated by the parent company as a person empowered to receive on its behalf judicial documents intended for it. Such authority cannot be presumed, otherwise there is a risk of prejudicing the parent company’s rights of defence.
51 In that regard, it should be noted that the guarantee of actual and effective receipt of documents, that is to say, service on the defendant, together with the existence of a period of time sufficient to enable the defendant to prepare his or her defence, is a requirement of respect for the right to effective judicial protection enshrined in Article 47 of the Charter (see, to that effect, judgments of 2 March 2017, Henderson, C‑354/15, EU:C:2017:157, paragraph 72, and of 5 December 2019, Centraal Justitieel Incassobureau (Recognition and enforcement of financial penalties), C‑671/18, EU:C:2019:1054, paragraph 39).
52 Consequently, where, as is the case in the main proceedings, the alleged victim of a cartel involving an economic unit composed of a parent company and one or more of its subsidiaries chooses to direct his or her action for damages against that parent company rather than, as was in principle open to him or her, against the one of those subsidiaries established in the Member State in which that victim resides, the latter cannot then rely on the existence of such a unit in order to summon or serve judicial documents intended for that parent company at the address of that subsidiary.
53 Notwithstanding the doubts expressed by the referring court, neither Article 47 of the Charter, which enshrines the right of the alleged victim of a cartel to a fair trial, nor the effet utile of Article 101(1) TFEU can justify a different solution, even if the obligation to notify judicial acts in another Member State would give rise to additional constraints on the alleged victims.
54 In that regard, it should, in the first place, be pointed out that, while the alleged victims of an infringement of EU law may rely on the right to a fair trial guaranteed by Article 47 of the Charter, that right also protects the defendant, even where the latter has previously been found to have infringed Article 101(1) TFEU. Unlike Article 101(1) TFEU, which applies to undertakings, the right to a fair trial guaranteed by Article 47 of the Charter protects each legal person individually. Thus, competition disputes are not exempt from the procedural guarantees deriving from that article, which require that judicial documents intended for a person be actually and effectively delivered to that person.
55 In the second place, the Union legislature has adopted a number of acts which apply to cross-border disputes in civil and commercial matters, in particular Regulations No 1215/2012 and No 1393/2007, which aim to facilitate the free movement of judicial decisions and to improve the transmission between Member States of judicial and extrajudicial documents for the purposes of service, thereby promoting access to justice.
56 First, Article 4 of Regulation No 1215/2012 provides that, as a general rule, persons domiciled in a Member State are to be sued, whatever their nationality, in the courts of that Member State. By way of derogation from that rule, Article 7(2) of that regulation provides that a person domiciled in a Member State may, in matters relating to tort, delict or quasi-delict, be sued in the courts for the place where the harmful event occurred or is likely to occur. Article 63 of that regulation provides that, for the purposes of the application of that regulation, companies and other legal persons are domiciled where their registered office, central administration or principal place of business is situated.
57 In the present case, it is common ground that, in the main proceedings, the applicant at first instance, namely the alleged victim of the anticompetitive conduct, relied on Article 7(2) of Regulation No 1215/2012 in order to bring its action for damages before the court for the place where the harmful event occurred, namely a Spanish court, whereas the defendant’s domicile, within the meaning of Article 63 of that regulation, is in Sweden, where it has its registered office. The applicant was thus able, pursuant to that regulation, to benefit from facilitated access to justice.
58 Secondly, Regulation No 1393/2007 establishes a set of rules governing the transmission and service of judicial and extrajudicial documents in civil and commercial matters. According to Article 1(1) thereof, that regulation applies where a document has to be transmitted from one Member State to another for service there, with the objective, as set out in recitals 2 and 11, of facilitating such transmission and thereby ensuring the proper functioning of the internal market.
59 In particular, it is apparent from a combined reading of Article 1(2) and recital 8 of Regulation No 1393/2007 that the Union legislature has provided for only two circumstances in which the service of a judicial document between Member States is excluded from its scope, namely, first, where the permanent or habitual residence of the addressee is unknown and, second, where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place (see, to that effect, judgment of 19 December 2012, Alder, C‑325/11, EU:C:2012:824, paragraph 24).
60 Apart from those two situations, where the addressee of a judicial document is domiciled in another Member State, the service of that document necessarily falls within the scope of Regulation No 1393/2007 and must therefore, as provided for in Article 1(1) of that regulation, be effected in accordance with the procedures laid down by that regulation (see, to that effect, judgment of 19 December 2012, C‑325/11, Alder, EU:C:2012:824, paragraph 25).
61 In the present case, since, as noted in paragraph 57 of this judgment, the addressee of the judicial documents is domiciled in Sweden, while the court proceedings are taking place in Spain, such documents should have been transmitted from one Member State to another within the meaning of Article 1(1) of Regulation No 1393/2007. Furthermore, subject to verification by the referring court, the situation at issue in the main proceedings does not fall within the situations set out in paragraph 59 of this judgment, with the result that the arrangements for service of judicial documents between Member States provided for in Regulation No 1393/2007 apply.
62 Several provisions of Regulation No 1393/2007 expressly seek to reconcile the efficiency and speed of the transmission of judicial documents with the need to ensure that the rights of the defence of the addressees are adequately protected, through, inter alia, the guarantee of actual and effective receipt of those documents (see, to that effect, judgment of 19 December 2012, Alder, C‑325/11, EU:C:2012:824, paragraph 36).
63 Thus, as regards the costs occasioned by the service of the judicial document in the Member State addressed, it should be noted that, in accordance with recital 16 and the second subparagraph of Article 11(2) of Regulation No 1393/2007, those costs must, in order to facilitate access to justice, correspond to a single flat-rate fee the amount of which is fixed in advance by that Member State and which respects the principles of proportionality and non-discrimination.
64 As regards any translation costs prior to the transmission of the document, it certainly follows from Article 5(2) of that regulation that the applicant bears them. Moreover, Articles 5 and 8 of that regulation, read in conjunction with recital 12 thereof, allow the addressee to refuse to accept the document to be served if it is not written in a language which he or she understands or in the official language or one of the official languages of the place where service is to be effected.
65 However, Regulation No 1393/2007 does not require a translation of the document to be served in all circumstances since, as is clear from Article 8 of that regulation, the addressee of the document may refuse to accept it only if it is not written in or accompanied by a translation into a language which he or she understands or into the official language of the Member State addressed. In that respect, the Court has specified that, where the document concerned is accompanied by annexes consisting of supporting documents which are not in the language of the Member State addressed or in a language of the Member State of origin which the addressee understands, the addressee does not have the right to refuse receipt of that document provided that it enables the addressee to assert his or her rights in legal proceedings in the Member State of origin and that those annexes serve only as evidence and are not essential to an understanding of the subject matter and cause of action of the request (see, to that effect, judgment of 8 May 2008, Weiss und Partner, C‑14/07, EU:C:2008:264, paragraph 78).
66 In addition, payment of the translation costs by the applicant is without prejudice to any subsequent decision by the court or competent authority on the arrangements for sharing the costs incurred by the proceedings.
67 In any event, in so far as they relate to the fact that, under the national rules on the award of costs, an applicant may recover the costs of proceedings which it has incurred for the purposes of bringing its action only if that action is upheld in its entirety, the doubts expressed by the referring court as to whether the impossibility, for the alleged victim of an anticompetitive practice, of serving judicial documents intended for the parent company at the address of the latter’s subsidiary, which is domiciled in the same territory as it, would undermine the latter’s right to a fair hearing, guaranteed by Article 47 of the Charter, or even the effectiveness of Article 101 TFEU, by reason of the costs of translation and of service of judicial documents, it must be emphasised that any incompatibility of those national rules relating solely to costs with EU law cannot, as such, have the consequence of rendering inapplicable the provisions governing the service of judicial documents.
68 Similarly, as regards the lengthening of time limits for bringing actions, it is true that the second paragraph of Article 47 of the Charter enshrines the right of every person to a fair and public hearing within a reasonable time. However, even if, despite Regulation No 1393/2007, the obligation to serve judicial documents in another Member State were such as to result in a significant increase in the length of proceedings, such an increase would not, in itself, imply an infringement of that provision, since the reasonableness of a time limit for delivering judgment must be assessed in the light of the specific circumstances of each case (see, to that effect, judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 181) and, accordingly, taking account, where appropriate, of the cross-border nature of the dispute.
69 In the third place, the Court has interpreted Article 101(1) TFEU as meaning that, where a parent company and its subsidiary form an economic unit, the victim of an anticompetitive practice by that undertaking may bring an action for damages against either the parent company which has been penalised by the Commission in respect of that practice in a decision or its subsidiary, even if the latter is not the subject of that decision (see, to that effect, judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 51). Consequently, it is, in principle, open to the alleged victim of such a practice wishing to assert the rights which he or she derives from Article 101(1) to bring his or her action for damages against the subsidiary whose registered office is situated in the Member State of the court seised, which would enable him or her to avoid having to bear any costs of translation or service of judicial documents in another Member State.
70 Having regard to all the foregoing considerations, the answer to the first question is that Article 47 of the Charter and Article 101 TFEU, read together with Regulation No 1393/2007, must be interpreted as meaning that a parent company against which proceedings have been brought for compensation for damage caused by an infringement of competition law is not validly served with a summons where service of the document instituting the proceedings was effected at the address of its subsidiary domiciled in the Member State in which the proceedings were brought, even if the parent company forms an economic unit with that subsidiary.
The second question
71 By its second question, the referring court asks, in essence, whether, if the answer to the first question is in the affirmative, Article 53 of the Charter must be interpreted as permitting a Member State to require service of a document instituting proceedings to be effected at the registered office of the company to which that document is addressed, and not at the address of a subsidiary of that company.
72 As is clear from the wording of the second question, it is asked only if the Court answers the first question in the affirmative.
73 As was concluded in paragraph 70 of this judgment, the answer to that first question is in the negative.
74 Therefore, in view of the answer given to the first question, there is no need to answer the second question.
Costs
75 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 47 of the Charter of Fundamental Rights of the European Union and Article 101 TFEU, read together with Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, must be interpreted as meaning that a parent company against which proceedings have been brought for compensation for damage caused by an infringement of competition law is not validly served with a summons where service of the document instituting the proceedings was effected at the address of its subsidiary domiciled in the Member State in which the proceedings were brought, even if the parent company forms an economic unit with that subsidiary.
[Signatures]