Zuständigkeit, Zustellung, Rechtsfähigkeit? – Die Reichweite der wirtschaftlichen Einheit im Kartellschadensprozess nach den Entscheidungen Rs C-425/22 – MOL und Rs C-632/22 – Volvo des EuGH

Abstract

Jurisdiction, notification, legal personality? – The scope of the single economic unit doctrine in cartel damages proceedings following the ECJ decisions C-425/22 – MOL and C-632/22 – Volvo

The decisions of the European Court of Justice of 4th July 2024 in proceedings C-425/22 – MOL and of 11th July 2024 C-632/22 – Volvo each involved a claim regarding cartel damages brought by the plaintiffs following the so-called “truck cartel”. In C-425/22 – MOL, a parent company attempted to establish a jurisdiction in Hungary for an action for compensation of cartel damages against a cartel participant that was not domiciled there. The alleged damages had been suffered directly by the subsidiaries of the parent company. Among other reasons, the plaintiff justified the court’s jurisdiction by arguing that for the enforcement of its rights following a cartel infringement pursuant to Art. 101 TFEU the economic unit doctrine should apply not only to the defendant, but also to the plaintiff. The Court of Justice rejected the jurisdiction, as the damage in question had been suffered directly by the subsidiaries. The coherence of the place of jurisdiction and the applicable law as well as legal certainty were arguments against a jurisdiction at the seat of the parent company, which according to the Court of Justice would not significantly impede the enforcement of the plaintiffs’ rights. In C-632/22 – Volvo, the plaintiff wanted to sue the Swedish parent company of Volvo in Spain for compensation of cartel damages but wanted to have its action notified to the Spanish subsidiary of the parent company. Here too, the plaintiff based its argument on the enforcement of its rights under Art. 101 TFEU and the economic unit. The Court of Justice rejected a notification to the Spanish subsidiary. The joint liability as an economic unit would not result in an autonomous legal personality of the entire undertaking and the action would therefore have to be brought against the legally independent subsidiaries. The defendant's rights would also have to be considered here.

The Court of Justice’s reasoning is convincing in both cases. In MOL, the Court of Justice rightly did not extend the economic unit to the plaintiff, as the plaintiff had not suffered any direct damage, Art. 7 No. 2 Brussels I Regulation is to be interpreted narrowly as an exceptional provision and the opposing view leads to considerable possibilities of forum shopping. In Volvo, the Court of Justice ruled with good reason that the economic unit doctrine does not imply a possibility to notify judicial documents to subsidiaries for cross-border actions against the parent company. This is because the liability within the economic unit does not, in principle, translate to judicial enforcement and an internationally active company with a branch in a particular Member State does not encourage any trust in the possibility of legal action against the parent company from there.

The Court of Justice’s statement that the economic unit does not have “autonomous legal personality” vis-à-vis its entities remains ambiguous. The Court of Justice could have denied the passive ability to be litigated, the legal personality or the discharge of liability of the entities of the economic unit. The wording and the reference to the Sumal decision suggest that legal personality or discharge of liability was meant. The Court of Justice most likely rejected the legal personality of the economic unit. This statement of the Court of Justice is also conclusive in light of the previous case law of the Court of Justice on the economic unit and the substantial competence of national legislators for corporate law.

As the Court of Justice’s arguments in its decisions, with the exception of the implications for an autonomous legal personality in Volvo, are primarily based on civil procedure law, it cannot be ruled out that future case law on Art. 101 TFEU will specify further rules for jurisdiction or the notification of documents based on the economic unit doctrine.