September 30
2020
Dolores Utrilla
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10th September 2020
Competition & State Aid Justice & Litigation

AG’s Opinion on how to determine the jurisdiction for civil liability actions based on a breach of competition law

Today, Advocate General (AG) Saugmandsgaard Øe delivered his opinion in Wikingerhof (C-59/19), a case stemming from a preliminary ruling request by the German Federal Court of Justice (Budesgerichtshof) on the interpretation of Article 7(2) of Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

This provision sets out the special jurisdiction rule that ‘a person domiciled in a Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

The referring court asked the Court of Justice whether Article 7(2) must be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant.

The preliminary ruling requested was lodged in the context of a dispute between Wikingerhof GmbH & Co KG and Booking.com BV. Wikingerhof had concluded a contract with Booking.com to have the hotel it operates listed on the online accommodation booking platform of the same name. However, Booking.com considers that the latter imposes unfair conditions on the hoteliers registered on its platform, which would constitute an abuse of a dominant position liable to cause them harm. Wikingerhof brought an action for an injunction against Booking.com before a German court, based on the rules of German competition law. However, Booking.com claimed that that court does not have jurisdiction to hear the action. The issue was then brought for revision before the Bundesgerichtshof.

In his Opinion today, AG Saugmandsgaard Øe advised that the Court of Justice rule that Article 7(2) of Regulation 1215/2012 must be interpreted as meaning that a civil liability action based on a breach of the rules of competition law falls within the scope of ‘matters relating to tort, delict or quasi-delict’ within the meaning of that provision, even where the claimant and the defendant are parties to a contract and the alleged anti-competitive conduct alleged by the former against the latter materialises in their contractual relationship.

The Opinion is available here (in French).

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