Allocating Jurisdiction in Private Competition Law Claims within the EU

AuthorJonathan Fitchen
Published date01 December 2006
Date01 December 2006
Subject MatterArticle
13 MJ 4 (2006) 381
J F*
is article demon strates that the policies underlying EC competition law and EU private
international law currently have a sig ni cant potential for con ict.  is con ic t is a result
of a failure to adequately translate the ‘public’ nature of supranational EC Competition
Law into the national context of ‘pr ivate’ forms of litigation.  e con ict is explored in the
context of the private litigation of cross border c ompetition law disputes. It is sugges ted that
whilst the con ict is unresolved the e ective enforcement of EC competition law can not
be assumed to follow naturally from eithe r the current modernisation of EC competition
law, or the provisions of the Commission’s recent Green Paper concer ning private damages
actions for breach of competition law.
Keywords: Private internat ional law, Private enforcement of competition law, Delictual
jurisdiction, Foru m shopping
is article concerns t he collision of two independently created Europea n legal tectonics:
EC competition law and the EU’s harmonised ru les concerning the private international
laws of the Member States.  e rst has recently been reformed, or ‘modernis ed’, and it
is from this reformation that t he potential for a collision involving the provisions of the
second arises.  e particular form of collision which will be considered requires that
there be a n allegation of i nfringement of EC c ompetition law, that the said infri ngement
possesses a cross-border asp ect and that the cla imant wishes to bri ng private legal
proceedings before a court ot her than that of the jur isdiction in wh ich the defendant
is domiciled.  is article is not directly concer ned with the substantive law concerning
* Jonathan Fitchen is a le cturer in law in t he Department of Law & Crimin ology of the Universit y of
Wale s at A ber yst wyt h.
Jonathan Fitchen
382 13 MJ 4 (2006)
such private law damages clai ms, a topic which is currently t he subject of a European
Commission Green Paper, but only with the deli neation of what will be maintai ned to
be a Europe-wide issue of jurisdiction preliminar y to all such issues of substance.1 e
issue arises as a consequence of attempting to accommodate EC Competition Law, a
supranational legal concept , within the nar rower and more particular env irons of national
private laws, the interrelationship of which is governed by t he EU’s in exibly harmonised
principles of private international law.  e discu ssion that follows will add ress both
exibility a nd in exibilit y in the allocation of juri sdiction in the context of tra ns-national
European torts. A s will be seen, s ome of the chosen illustr ations involve principles of
English private internationa l law: the reader should note that these illustrations re ect a
trend in commercial litigat ion rather than any national bias by the author.
e focus of the following discus sion will be the operation of Article 2 and
Article 5(3) of Council Regu lation 44/2001 (herea er called ‘t he Regulation’) concerning
the allocat ion of special jurisdic tion in private claims based upon the infri ngement
of EC competition law.  is ar ticle seeks to high light the potential for a problematic
interaction between t he current jurisdic tional rules of t he Regulation and t he private
litigation of European competition law. e problem stems from the tension bet ween the
promotion of an e ective enforcement of the modernised EC competit ion rules and the
traditional role of private inter national law in containi ng and focusing the jur isdiction
of otherwise f ragmentary private claims.  e European C ommission is now clearly very
keen to encourage the active development of the ‘problem child ’, which, despite repeated
encouragements and exhortations2, the private en forcement of competition law continues
to represent. As a consequence it may be that the policy and present interpretation of
the Regulation may eventually be va ried so as to facil itate the bringing of such private
competition actions. However, such a broadening of the claimant’s jurisdic tional
options must be reconciled with subsequent e ect s on cross-border litigation: there may
be a heightened potential for claima nts to engage in opportuni stic forum shopping,
accordingly, the legitimate jurisdictional expectations of the defendant should also be
considered. At present, there is little i ndication that either issue is at the f ront of the
Commission’s ‘mind’.3 is may be explaine d as a consequence of the current dearth of
such private cases. However, as there has been reform it would be advisable to c onsider
1 Damages actions for breac h of the EC antitr ust rules 19/12/2005 C OM (2005) 672  nal and Com mission
Sta Working Paper SEC (2005) 1732  nal.
2 e case law of the ECJ has encou raged private enforcement on a number of occ asions, which have
notably included: 127/73 BRT v. SABAM [1974] ECR 51, by which the direct e ect of Articles 85(1) &
(2) and Article 86 EE C was declared; t he opinion of AG van Gerven in C -128/92, HJ Banks & Co. Ltd v.
British Coal Corporation [1994] ECR I-1209; and most recently C-453/99 C ourage Ltd v. Crehan [2001]
ECR-I 6297. See also the Comm ission’s Cooperation Notices d irected at national cou rts of 1993 ([1993]
O.J. C 39/6) and, post-Regulat ion 1/2003, the 2004 ver sion ([2004] O.J. C 101, 54–64).
3 e issue of jurisdict ion is mentioned in pa ragraph 2.8 of t he Green Paper, but in such terms as to
suggest that t he existi ng provisions of the Re gulation a re adequate.  e que stion associate d with
paragraph 2 .8 concerns the applicable l aw for private claims rat her than any matter of jur isdiction.

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