Forum Shopping In The Era Of Private Antitrust Litigation In Europe

Author: LawSphereX

Category: Competition Law

Published: 2026-08-23T19:51:19.117Z

Updated: 2026-08-30T07:04:57.722Z

FORUM SHOPPING IN THE ERA OF PRIVATE ANTITRUST

LITIGATION IN EUROPE

Aashka Vyas, O.P. Jindal Global University, Jindal Global Law School

ABSTRACT

Antitrust litigation in Europe is evolving rapidly. In particular, damages claim relating to cartels and dominance abuses are growing exponentially and claims relating to the same infringement are being made in several jurisdictions in parallel. Cartel decisions of the European Commission often sanction Europe-wide cartels that could potentially affect customers right across Europe. 1 Beyond the well-known prohibitions on cartel-like activities, it delves into less frequently addressed conduct by EU antitrust enforcement which includes alleged abuses of the patent system, disparagement of competitors’ products, frivolous litigation, and excessively high pricing.

Given that in Europe-wide antitrust damage cases, particularly cartel cases, private international law allows and asks the claimant to choose between alternative competent jurisdictions, the question arises as to where a legal action should be brought to court. 2 The multiplicity resulting from the claimant’s flexibility to exercise his choice of jurisdiction in the most appropriate and advantageous manner for him has resulted in the possibility of involving several judicial venues in cases involving common facts and legal difficulties. The lack of uniformity in a legal solution leads to confusion in choice-of-law and jurisdictional norms, which may result in a rush to different national courts.

This paper will investigate the essential aspects of forum shopping caused by collective redress and the selection of an appropriate forum in the area of antitrust where illegal conduct may cause scattered and low-value damage to a large number of individuals, and where the individual cost of redress may be disproportionate to the damage suffered. Additionally, the paper will also establish the fact that Private Antitrust Litigation has become a norm in Europe. Keywords: forum shopping, private antitrust litigation, collective redress, EU Competition Law, Brussels I Regulation Lukas Rengier and Fabian Kolf, ‘Private Antitrust Litigation’ (Lexology, July 2021) accessed 7 April 2023. 2 Ulrich Classen and Martin Seegers, ‘The State of Private Enforcement of Competition Law: A Practitioner’s Perspective’ in M. Strand, V. B. Venegas and M. C.

Iacovides (eds), EU Competition Litigation: Transposition and First Experiences of the New Regime (Hart Publishing 2019).

I.

Definition Of Forum Shopping The phrase “forum-shopping”, first coined in America become part of the standard vocabulary of the English conflict of laws. Forum-shopping has been defined as a “plaintiff by-passing his natural forum and bringing his action in some alien forum which would give him relief or benefits which would not be available to him in the natural forum”. 3 It refers to the process of selecting the court or jurisdiction with the most favourable rules or legislation for the position under consideration. When more than one court has jurisdiction over a dispute, a party can forum shop, picking the court that offers it an edge over the opposing party. The most favourable venue for the party’s case is not usually the most relevant forum to the issue.

The principle of forum shopping stems from the belief that the “[t]he plaintiff usually shops in the forum where he is most familiar or in which he gains the greatest procedural advantage or puts the defendant to the greatest procedural disadvantage”4. Forum shopping is a controversial issue. 5 Some embrace the concept. Others may see it as an evil because it often results in unfairness to the defendant or because the choice of a forum which has little or no connection with the parties or the subject-matter is thought to be objectionable. That is why one commentator has observed that “in a world where daily transactions routinely involve multiple countries, litigants are increasingly likely to find themselves embroiled in simultaneous contests in several theatres”6. Lord Goff has rather pertinently remarked in Airbus Industries GIE v.

Patel7 that the world “is a jungle of separate, broadly-based jurisdictions”8. In another instance, forum shopping was described like cholesterol and trolls as it can be good as well as bad. 9 Moreover, a Professor of Law at Southwestern Law School, Debra Lyn Bassett stated that: “One of the more interesting contradictions in law is the common description of litigation as a ‘game’ while simultaneously decrying ‘game playing’ in the litigation process. Litigation involves strategic choice, as game theory illustrates. One of those strategic choices includes the plaintiff’s initial selection of the forum, which the defendant may attempt to counter through transfer strategies of its own. 3 Schuz, Rhona, ‘Controlling Forum-Shopping: The Impact of MacShannon v. Rockware Glass Ltd1. ’ (1986) 39 I. C. L. Q. 374.

4 Lawrence Collins, ‘Contractual obligations

The EEC Preliminary Draft Convention on Private International Law’ (1976) 25 I.C.L.Q. 35, 36.

5 A.G. Slater, ‘Forum non conveniens

A view from the shop floor’ (1988) 104 L.Q.R. 554, 561.

6 L.E. Teitz, ‘Taking multiple bites of the apple

A proposal to resolve conflicts of jurisdiction and multiple proceedings’ (1992) 26 Int’l Law 21, 22.

7 Airbus Industries G.I.E. v Patel and Others [1999] 1 A.C. 119.

8 Ibid., at 132.

9 R. Maloy, ‘Forum shopping? What’s wrong with that?’ (2005) 24(1) Quinnipiac L. Rev 25.

Criticising and trivialising forum selection through the label of forum shopping misapprehends the forum game by treating forum selection as a parlour trick – as unfair and abusive – rather than as a lawful, authorised strategy. Forum shopping is not a form of ‘cheating’ by those who refuse to play by the rules. Playing by the rules includes the ability of plaintiff’s counsel to select – and the ability of defendant’s counsel to attempt to counter – the set of rules by which the litigation ‘game’ will be played.”10 II.

Development Of Private Antitrust Litigation In The Europe In Europe, the concept of private enforcement of antitrust law has few historical antecedents. In the 1890s, antitrust law was first discussed in Vienna and being inspired by the Austrian school of marginal utility economics, scholars and administrators saw antitrust law as “an administrative tool, a means for the State to intervene in market processes in order to achieve public goals”11. According to David Gerber’s “administrative control model of competition law”12, antitrust legislation is a tool for discretionary administrative intervention i. e. , more a matter of policy than of legislation. It can be contrasted with a more juridical definition of antitrust legislation, such as that which existed at the time in the United States and had unambiguous and legally enforced prohibitions.

Although no antitrust law was enacted in Austria or elsewhere in Europe in the 1890s, the administrative control model of antitrust law was adopted in the 1920s in Germany, where Europe’s first antitrust law was created13, and expanded to Sweden and Norway. However, the administrative control model reappeared after WWII and many European countries passed antitrust legislation in the decade and a half following World War II. Except for Germany, they all relied on the administrative control paradigm that prevailed in the 1920s. As a result, antitrust law was then seen as a type of administrative regulation, a component of public law, or, more specifically, administrative law. Additionally, the importance of antitrust law was minute, and the enforcement was often considered to be “soft”. The fundamental concept was to offer “government officials the authority to take action against large

10 D.L. Bassett, ‘The forum game’ (2006) 84 N.C.L. Rev. 333, 344.

11 David J. Gerber, ‘Private Enforcement of Competition Law

A Comparative Perspective’ in Andreas Heinemann and Thomas M. J. Möllers (eds), The Enforcement of Competition Law in Europe (Cambridge University Press 2008). 12 David J. Gerber, Law and Competition in Twentieth century Europe: Protecting Prometheus (Oxford University Press 2001) 173. 13 Verordnung gegen Missbrauch wirtschaftlicher Machtstellungen (Decree Against Abuse of Economic Power) [1923] RGBL. pt. I, at 1067. corporations whose constraints on the competitive process were deemed damaging to society”. 14 Parallelly to the passage of antitrust legislation in various European countries, antitrust legislation was also passed at the level of the European Economic Community (EEC), the forerunner of the modern European Union.

The antitrust rules in the Treaty of Rome15, the founding document of the European Economic Community, were based on the 1951 European Coal and Steel Community Treaty (ECSC Treaty)16. Initially prepared by Harvard Professor Robert Bowie, they simplified antitrust law into two provisions: a prohibition on anticompetitive agreements (now Article 101 TFEU-Treaty on the functioning of the European Union17) and a restriction on the misuse of dominant positions (now Article 102 TFEU). These two clauses established substantive antitrust legislation, i. e. , what was illegal and what was not, but they were mostly quiet on enforcement measures, including any private enforcement procedures. The lone exception was a provision that said that any agreement that breached Article 101 was instantly null and void.

18 The Treaty’s lack of a private enforcement mechanism is not surprising as they are agreements between sovereign states, and only a small number of them have private enforcement mechanisms. The Council passed Regulation 17/6219, in 1962, which established a centralised enforcement model. The European Commission was given the authority to investigate and sanction violations, as well as the exclusive authority to exempt specific agreements, i. e. , proclaim that an agreement that breached Article 101(1) TFEU survived restriction because it resulted in certain pro-competitive benefits. 20 Notwithstanding the fact that Regulation 17/62 established an administrative enforcement paradigm by centralising enforcement with the European Commission, the environment for 14 Simon Wande Valle, Private Antitrust Litigation in the European Union and Japan: A Comparative Perspective (Maklu 2013) 151.

15 Treaty of Rome (Treaty Establishing the European Economic Community), 25 March 1957, 298 UNTS 3, Art. 85-86. 16 Treaty of Paris (Treaty Establishing the European Coal and Steel Community), 18 April 1951, 261 UNTS 142, Art. 65. 17 Consolidated Version of the Treaty on the Functioning of the European Union arts. 101, 102, Sept. 5, 2008,

2008 O.J. (C115) 47 (effective Dec. 1, 2009) [hereinafter TFEU].

18 Simon Wande Valle, Private Antitrust Litigation in the European Union and Japan

A Comparative Perspective (Maklu 2013) 153. 19 Council Regulation 17/62 of the Council of 6 February 1962, First Regulation Implementing Articles 85 and 86 of the EEC Treaty, 1959-62 O. J. Spec. Ed. 87. 20 Council Regulation 17/62 of the Council of 6 February 1962, First Regulation Implementing Articles 85 and 86 of the EEC Treaty, 1959-62 O. J. Spec. Ed. 87, Art. 9(1). private enforcement increasingly strengthened. The European Court of Justice, not legislative action, was responsible for this reform. The court has typically backed the concept of private enforcement of EU law and has endeavoured, in a long series of judgements, to widen the rights of people seeking redress in national courts under EU law. The famous Van Gend & Loos decision21 established that some parts of the then EEC Treaty had direct effect, i. e.

, they may confer rights on persons on which they could rely in proceedings before national courts. The Van Gend & Loos case did not involve antitrust law, but the court confirmed the direct effect of the treaty’s fundamental antitrust clauses approximately a decade later. In BRT v. Sabam22, the court ruled in 1974 that Articles 101(1) and 102 TFEU have direct effect. The immediate effect of Article 101(2), which states that anticompetitive agreements are inherently null and void, has never been seriously questioned23 and was clearly confirmed in 197324. By establishing the theory of direct effect, the court gradually imposed even more rigorous responsibilities on national courts to ensure that the rights obtained by individuals from EU law could be properly enforced.

Initially, these decisions mostly concerned individual redress for infringement of EU law by Member States25, but in Courage26, the Court of Justice recognised a general entitlement to damages for antitrust violations. This ruling, as well as the Court’s later Manfredi decision27, demonstrate a clear position in favour of private antitrust enforcement and, in particular, damages suits. These judgments clarified the entitlement of all people who have incurred loss as a result of Article 101 TFEU to seek restitution for injury caused by a violation of competition regulations. The rulings do not limit this right to those who have experienced direct injury as a result of the violation; consequently, indirect customers of a cartel can (and do) seek damages under Crehan and Manfredi.

28 In 2003, the EU launched a process of decentralisation of antitrust enforcement as part of the European Commission’s “modernization” of antitrust law. Decentralization entails delegating enforcement authority from Brussels to national competition authorities and courts. This

21 Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] E.C.R. 5.

22 Case 127/73, Belgische Radio en Televisie v. SABAM [1974] E.C.R. 51, para. 16.

23 Case 23/67, SA Brasserie de Haecht v. Wilkin [1967] E.C.R. 407 (“Brasserie de Haecht I”).

24 Case 48/72, SA Brasserie de Haecht v. Wilkin-Janssen [1973] E.C.R. 77, para. 4 (“Brasserie de Haecht II”) (Court of Justice explicitly holding that Article 101(2) has direct effect). 25 Case C-213/89, The Queen v. Secretary of State for Transport, ex parte: Factortame et al. [1990] E.C.R. I-2433, paras. 21-23 (“Factortame I”).

26 Case C-453/99, Courage Ltd. v. Crehan [2001] E.C.R. I-6297, paras. 24-26.

27 Joined Cases C-295/04 to C-298/04, Manfredi v. Lloyd Adriatico Assicurazioni SpA [2006] E. C. R. I-6619. 28 Mark Sansom, Anna Morfey and Patrick Teague, ‘Recent Developments in Private Antitrust Damages Litigation in Europe’ (2015) 29 Antitrust 33. approach was driven by the belief that, after nearly fifty years of antitrust regulation, Europe’s competition culture had advanced sufficiently to allow for antitrust enforcement to be decentralised. Furthermore, the EU’s impending expansion from a union of fifteen to one of twenty-seven forced the European Commission to admit that it could not regulate such a vast economic zone on its own. As a result, it sought to encourage national enforcement and private litigation to bolster its own enforcement efforts. Regulation 1/200329 established decentralisation.

Although this appears to be a relatively technical operation, the consequences were far-reaching, and the shift has been described as “the most radical change to Community competition rules in forty years”30. To summarise, by 2004, an important legal hurdle to private antitrust action had been lifted. Despite this, the number of private lawsuits did not increase quickly. The European Commission was more ready than ever to encourage private enforcement in order to reduce their enforcement burden. As a result, the European Commission embarked on the long road to legislative action in order to accelerate damage claims. It first commissioned research, which was done by Ashurst legal firm and released in 2004. According to the research, private damages in the EU are in “complete underdevelopment”31.

Following that, the Commission produced a Green Paper32, a document meant to kick off the debate and solicit input from stakeholders on potential legislation. The Green Paper highlighted double damages, a type of punitive damages, as one of the measures under discussion for horizontal cartels. Private enforcement became a catchphrase and was frequently argued in legal journals, newsletters from law firms, and even the general economic press, in part because of such contentious “proposals”- although in fact they were merely possibilities put up for debate. Numerous stakeholders, particularly those in the business sector, expressed grave concerns, claiming that the EU was determined to bring the litigation culture of the United States into Europe.

Following the Green Paper, the European Commission produced a White Paper33 outlining a framework for laws targeted at facilitating damage claims. It revealed a 29 Council Regulation 1/2003 of 16 December 2002 on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty, 2003 O. J. (L 1) 1. 30 Valentine Korah, An Introduction Guide to EC Competition Law and Practice (9th edn, Hart Publishing 2007) 247-248. 31 Denis Waelbroeck, Donald Slater and Gil Even-Shoshan, ‘Study on the Conditions of Claims for Damages in Case of Infringement of EC Competition Rules, Comparative Report’ (Ashurst 31 August 2004). 32 European Commission, Commission Green Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2005) 672 fnal (19 December 2005).

33 European Commission, Commission White Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2008) 165 fnal (2 April 2008). shift in the European Commission’s thinking towards private enforcement, possibly in response to the Green Paper’s pushback. The emphasis had switched from private litigation as an enforcement mechanism, i. e. , something intended largely at discouraging violations, to a mechanism aimed primarily at paying victims of antitrust offences. The European Commission has stated publicly that the above-mentioned persistent differences in approach to antitrust law implementation within the EU can make it excessively costly and difficult to bring antitrust damages actions, resulting in compensation not being available for victims in all Member States.

Driven by these concerns, the EU approved and adopted the Directive34 in November 2014, with the goal of facilitating competition law damages claims and harmonising the attitude of national EU legal systems to such claims to a greater extent. III.

Relationship Between Forum Shopping And Private Antitrust Litigation Cross-border cases in private enforcement of competition law are becoming increasingly common. The recent decade has seen a considerable increase in the number of proceedings brought before national courts in the European Union (EU) based on violations of Articles 101 and/or 102 TFEU. This growth can be linked to a variety of factors, ranging from victims’ increased awareness of competition law-based rights to the decentralisation process and proprivate enforcement attitude that have characterised the field of EU competition law in recent years.

35 A greater impact of private actions in the aggregate of competition enforcement cases results in a greater number of instances involving transnational litigation, typically because the parties involved - enterprises, consumers, or more broadly private parties - come from different States. This stems from the market’s very configuration at the global level, but especially at the EU level: the internal market, defined as an area of free movement of goods and services, combined with freedom of establishment and free movement of persons, has undeniably proven to be an excellent breeding ground for cross-border litigation involving parties from different States (not just Member States).

When such litigation raises concerns about potential competition law violations, the stage is set for cross-border private enforcement cases to emerge, because the effects of restrictive practises are easily felt on markets that extend beyond 34 Council Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] O. J. (L 349).

35 Blanca Vila Costa, ‘How to Apply Articles 5 (1) and 5 (3) Brussels I Regulation to Private Enforcement of Competition Law: A Coherent Approach’ in Jurgen Basedow, Stephanie Francq and Laurence Idot (eds), International Antitrust Litigation: Conflict of Law and Coordination (Hart Publishing 2012). the national borders of the State where they are carried out. As a result, it is plausible to argue that private enforcement of competition law is now, in part, immersed in a transnational setting, necessitating a full examination of its implications from the standpoint of private international law. Amidst the transnational setting of the private enforcement of EU Competition Law, forum shopping has the potential to occur within this ambit.

The right of anyone in the EU who has suffered a loss as a result of anticompetitive behaviour to sue in national courts is central to EU competition policy and it is normally left to the Member States to establish their own regulations governing enforcement and the exercise of an aggrieved party’s entitlement to compensation. This level of EU-level oversight, however, allows for procedural and substantive variance between various Member States and has resulted in forum shopping, with some Member States being more popular than others for bringing damages claims. Given the existence of different national laws governing causes of action, different procedural rules (e. g.

, the existence of specialised courts or chambers with sufficient human, technological, and organisational resources to deal with complicated and large-scale antitrust proceedings, the entire duration of court procedures, taking into account possible defendants’ attempts to unduly delay operations, the approach of judges in dealing with complex antitrust matters, such as proactive case management hearings as seen in the Netherlands, the United Kingdom, and Finland36, disclosure of relevant documents, admission of evidence/pre-trial discovery, statute of limitation, allocation of costs, sources of funding for legal expenses, more routine practicalities such as familiarity with common versus civil law systems, and language considerations37 etc.

), and different remedies (interim relief, restorative-compensatory and/or punitive damages)38, this raises concerns about forum shopping before national courts. If victims of antitrust violations are unable to get an effective remedy in their native Member State, they will have an incentive to shop around for the best forum in which they are seen to be treated most favourably and take their case to a different, ‘better equipped’ jurisdiction. 39 36 Till Schreiber and Martin Seegers, ‘Collective or Class Actions and Claims Aggregation in the EU: the Claimant’s Perspective’ (Global Competition Review, November 2021) accessed 8 April 2023. 37 Mark Sansom, Anna Morfey & Patrick Teague, 'Recent Developments in Private Antitrust Damages Litigation in Europe' (2015) 29 Antitrust 33, 34. 38 P. L. Krauskopf and A.

Tkacikova, Competition law violations and private enforcement: forum shopping strategies, (2011) 4(1) G. C. L. R. 26, 26.

39 Ibid., 38.

Although the new Damages Directive has begun to pave the way for antitrust damages actions by removing obstacles that previously prevented victims from seeking redress and harmonising procedures across the EU for claimants seeking to bring damages actions for harm caused by businesses found to have violated competition law, there are still areas of private enforcement of competition law where forum shopping is possible and one of them being collective redress. Collective redress is a method that allows several similar legal claims to be packaged into a single court action for procedural and/or enforcement efficiency considerations. It improves access to justice, especially in circumstances when the individual loss is so minor that potential claimants would not consider pursuing an individual claim.

It also increases potential claimants’ bargaining power and aids to the effective administration of justice by avoiding several proceedings for claims arising from the same legal violation. 40 There is no overarching EU collective remedy mechanism, and the new Damages Regulation pays minimal attention to this issue. Despite the EU legislator’s goal of “improve the conditions for consumers to exercise their rights”41, the Damages Directive specifies that “[it] should not require Member States to introduce collective redress mechanisms for the enforcement of Articles 101 and 102 of the Treaty”42. Due to the absence of overarching norms, there is a patchwork of varied Member State systems and a few Member States do not have such advanced mechanisms in place. This has the ability to attract forum shoppers’ interests.

Cases having common facts and legal problems may be considered by numerous judicial bodies due to the patchwork of legal systems and the lack of a unified legal framework. The capacity to file lawsuits in a variety of venues under various statutes makes venue selection a question of strategic planning. The Amsterdam Court of Appeal, for example, is recognised as one of the most favourable tribunals in the EU for the enforcement of foreign collective redress decisions. This form of mass harm problem typically has a transnational component. Cross-border collective redress proceedings allow for the consolidation of all or a large number of claims arising from the same breach, which raises the issue of forum shopping. 40 Robert TC Telfer, ‘Forum shopping and the private enforcement of EU competition law: is forum shopping a dead letter? ’ (PhD thesis, University of Glasgow 2017).

41Council Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] O. J. (L 349), Recital 9.

42 Ibid., Recital 12.

IV.

Regulatory Nexus Allowing Forum Shopping Despite the fact that actions for damages arising from violations of EU competition law are increasingly being brought before courts in virtually all EU jurisdictions, claimants appear to prefer certain jurisdictions, such as the Netherlands, Germany, and the United Kingdom. In fact, in Europe-wide cartel suits, any claimant must select between jurisdictions where the courts are competent under EU Regulation 1215/2012 (Brussels I)43 and the Lugano Convention44. As a result, forum shopping is “undoubtedly permitted”45. But, making the proper decision is not always easy, especially when cartel members have offices in many countries and victims across Europe have been harmed. The European law, Council Regulation (EU) No. 1215/2012 (Brussels I), establishes a jurisdictional rule for any cases involving more than one EU member state.

It is immediately applicable in all member countries and plaintiffs in private antitrust proceedings, particularly cartel damages claims, frequently have the option of choosing between several venues under this regulation. The default rule under the Brussels I regulation is that “persons domiciled in a member state shall, regardless of nationality, be sued in the courts of that member state” (Article 4(1)46). Yet, there are significant exceptions, the most noteworthy of which being Articles 7(2)47 and 8 (1)48. Article 7(2) states that a person may be sued in the courts of the place where the harmful event occurred in matters relating to tort, delict, or quasi-delict. This concept encompasses both the place where the event giving rise to the damage occurred or where the damage occurred (i. e.

, it can open up two different venues) notwithstanding in the latter case the plaintiff can only recover for harm experienced in the country where the court is first seized49. Consequently, a 43 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 [2012] OJ L 351/1. 44 Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2007] OJ L 339/3. 45 Till Schreiber and Martin Seegers, ‘Collective or Class Actions and Claims Aggregation in the EU: the Claimant’s Perspective’ (Global Competition Review, November 2021) accessed 8 April 2023. 46 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 [2012] OJ L 351/1, art 4. 47 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 [2012] OJ L 351/1, art 7 (2). 48 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 [2012] OJ L 351/1, art 8 (1).

49 Case C-68/93, Shevill et al. v. Press Alliance SA [1995] E.C.R. I-415, paras. 30, 33.

corporation that purchased products from a cartel in, say, Germany can sue the cartel members in German courts because the injury happened there. But, if the corporation also purchased things in Poland, the German court would lack authority to award damages for such purchases. The ECJ held in CDC Hydrogen Peroxide50 that the place of the causal event is the place of the cartel’s conclusion, but that in this case it was impossible to identify a single place because the cartel was comprised of a number of collusive agreements made during various meetings or discussions across the EU. It looked at the location of the damage (i. e. , where the purported damage - the payment of the overcharge - presented itself). According to the ECJ, this is normally placed at the relevant victim’s registered office.

In the case of flyLAL Lithuania51 (C- 27/17 of 2018), the ECJ decided that the damage arises in the member state whose markets were damaged by the misuse. Moreover, the Tibor-Trans52 (C-451/18 of 2019) case is another cartel damages case (connected to the trucks cartel), but the claimant was a cartelist’s indirect customer. The ECJ did not refer to the claimant’s registered office in its decision, but instead, in accordance with previously established principles for abuse of dominance cases, considered the location of the damage to be the member state whose markets were affected by the cartel and where the claimant had suffered damage due to market price distortion.

The ECJ cited the Tibor-Trans decision in RH/AB Volvo53 (C-30/20/2021), another truck cartel case in which it ruled that in cartel-related damage claims, the member state where the damage occurred is the member state where the claimant purchased cartelised products. According to the ECJ, jurisdiction should be focused on the claimant’s primary seat in circumstances where the claimant purchased cartelised goods in many member states. In the case of claims against multiple defendants, Article 8(1) states that claimants may file a claim in the courts of the place where any one of the defendants resides if the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings.

This allows a group of defendants from various Member States to be sued in the same Member State if one of them (the ‘anchor defendant’) is domiciled there. As confirmed by the ECJ in CDC/Hydrogen Peroxide54 (C-352/13 of 2015), this is often the case for cartel damages claims. Furthermore, the ECJ concluded in this case that even if the defendant acting as the “anchor defendant”

50 Case C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Evonik Degussa GmbH [2015].

51 Case C-27/17, AB flyLAL-Lithuanian Airlines v Starptautiskā lidosta Rīga VAS and Air Baltic Corporation A/S [2018].

52 Case C- 451/18 Tibor-Trans Fuvarozóé és Kereskedelmi Kft v DAF Trucks N.V [2019].

53 Case C- 30/20 RH v. AB Volvo and Others [2021].

54 Case C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Evonik Degussa GmbH [2015].

makes a settlement with the claimant, jurisdiction remains with the competent court unless the settling defendant conspired with the claimant to artificially establish jurisdiction. The precise meaning of this phrase continues to perplex national courts, leading to a slew of preliminary judgements from the Court of Justice. The Court of Justice initially set a somewhat high threshold for bringing several defendants before the same court, only to loosen the requirements slightly in future cases. In Roche Nederland55, a case involving patent infringements, the court decided that the danger of irreconcilable judgements is not sufficient in order for there to be a chance of divergent outcomes. Rather, the divergent outcomes must occur “in the same factual and legal situation”56.

In antitrust cases, the second half of this test (“the same legal situation”) is unlikely to be problematic as in cross-border antitrust damages cases, plaintiffs are likely to rely on Article 101 or 102 TFEU, resulting in the same legal ground against each plaintiff. In any case, the Court clarified in the more recent Freeport and Painer cases that it is not necessary for the actions against various defendants to have comparable legal underpinnings. 57 Based on these case laws, it appears likely that in many antitrust actions, plaintiffs can rely on Article 8 (1) to sue all defendants in the same court. Article 2558 of the Brussels I Convention allows the parties to agree on a forum. In two cases, the ECJ gave guidance on the enforceability of jurisdiction terms (such as those included in supply agreements) in the context of private antitrust litigation.

In the case of CDC/Hydrogen Peroxide59 (C352/13 of 2015), the ECJ concluded that jurisdiction terms only apply to cartel damages claims if they clearly relate to them; general jurisdiction clauses that refer only to conflicts originating from a contractual relationship are insufficient. The ECJ reached a contrary decision in Apple Sales International60 (C-595/17 of 2018) regarding abuses of a dominating position. In this decision, the ECJ interpreted the general jurisdiction clause to cover claims is based on abuse as well. The ECJ explained that the abuse could have already happened when the contract was signed, establishing the necessary direct link with the contractual relationship.

55 Case C-539/03, Roche Nederland BV et al. v. Primus et al. [2006] E.C.R. I-6535.

56 Ibid., at para. 26.

57 Case C-98/06, Freeport v. Arnoldsson, 2007 E.C.R. I-8319, paras. 38, 47; Case C-145/10, Painer v. Standard Verlags GmbH and Others, not yet reported, para. 80. 58 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 [2012] OJ L 351/1, art 25.

59 Case C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Evonik Degussa GmbH [2015].

60 Case C-595/17, Apple Sales International and Others v MJA [2018].

Furthermore, based on this legal foundation, the European law typically permits claimants to choose among different jurisdictions for their claim. The venue in which a claim is filed frequently has a significant impact on the course and outcome of proceedings. While the EU Damages Directive establishes a common norm in many areas, variations in national regimes continue, and national courts’ practical procedures vary on topics such as disclosure, provision of evidence, estimating damages, and the scope of the passing on defence. Other factors to examine include admissibility of litigation funding, length of legal proceedings, and the availability of collective proceedings. Forum shopping is thus rather widespread. V.

Aftermath Of Forum Shopping And Determining ‘One Forum Jurisdiction’ As we have seen from the above rules of jurisdiction under the Brussels Recast about the possibility to choose from a variety of fora in cross-border collective redress in antitrust litigation that facilitates and encourages forum shopping. Forum shopping leads to two major issues which are that the most natural or appropriate forum may not be selected and, failing to consolidate a lawsuit involving all victims of anticompetitive behaviour may result in parallel proceedings that raises the possibility of irreconcilable judgements. The Brussels I Recast Regulation is based on the lis pendens system. The standard rule is located in Article 29(1)61 of the Regulation.

The Article requires that when proceedings concerning the same cause of action are brought in the courts of different Member States by the same parties, any court other than the court first seized shall stay proceedings on its own motion until the jurisdiction of the court first seized is established. In general, this Article will be of limited utility in the context of parallel and simultaneous collective redress processes because the ‘same parties’ condition will be difficult to meet. Article 30(1)62 is usually more relevant. When comparable actions are underway in several Member States’ courts, any court other than the first seized may stay its proceedings.

For the purposes of this Article, actions are regarded related when they are so closely related that hearing and determining them jointly is preferable to avoiding the possibility of irreconcilable decisions coming from separate 61 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 [2012] OJ L 351/1, art 29 (1). 62 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 [2012] OJ L 351/1, art 30 (1). proceedings63. The purpose of this Article is to deal with situations that do not come within the precise matching of pairs as defined by Article 29.

The purpose of Article 30 is to strengthen coordination of judicial activities throughout the EU and to avoid conflicting and contradictory rulings, so easing the appropriate administration of justice in the EU. Article 30(2)64 under the Brussels Regulation may also be relevant. It adds that “when the action in the court first seized is pending at first instance, any other court may also, on the motion of one of the parties, deny jurisdiction if the court first seized has jurisdiction over the proceedings in question and its legislation allows for their consolidation”. This increases the courts’ ability to consolidate cases and avoid parallel litigation of comparable claims. Article 30(2) is largely a lax interpretation of forum non conveniens (FNC). In the case of Owusu v.

Jackson65, the ECJ was questioned whether it was possible under the Regulation for a court to use its discretion in refusing jurisdiction to hear a case in favour of noncontracting State courts. Allowing the use of FNC, the ECJ decided, would have a negative influence on the uniform implementation of the Regulation, which “precludes a court of a Contracting State from declining authority conferred on it [... ]” and would undermine the legal certainty intended by it. While this may appear to be the end of FNC under the Brussels Regime, two considerations should be made. First, Owusu occurred under Article 4 of the Regulation, not under the provisions on Lis pendens and associated actions. Second, neither of the fora in question were contractual parties to the Regulation. As a result, it is uncertain whether FNC is prohibited in all circumstances under the Brussels Regulation.

Indeed, its placement in Article 30 would appear to argue in favour of its use, at least under limited circumstances. As a result, it is critical that Member State courts have rules for determining whether it is acceptable to deny jurisdiction. In Owens Banks, AG Lenz considered the circumstances under which a decline of jurisdiction could be exercised. 66 AG Lenz outlined three major criteria to consider when exercising discretion under Article 30: (i) the degree of connection between the two proceedings and the possibility of irreconcilable conclusions; (ii) the stage reached in each set of processes; and (iii) the proximity of the courts 63 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 [2012] OJ L 351/1, art 30 (3). 64 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 [2012] OJ L 351/1, art 30 (2).

65 Owusu v. Jackson [2002] EWCA Civ 877.

66 Case 129/92 Owen Bank Ltd. v Fulvio Bracco and Bracco Industria Chimica SpA [1994] E. C. R. I-117, at 74-9. to the subject matter of the case. He went on to say that a decline of jurisdiction would be reasonable in circumstances where only an interim measure could be adopted in the proceedings before the second court, in order to avoid the risk of mutually incompatible outcomes. It is argued that the general trend should be to use discretion whenever possible to prevent the likelihood of contradictory conclusions. This appears to be especially important in collective redress processes, particularly in antitrust settings, because we are dealing with the same illegal activity, by the same corporate defendant, that creates detrimental events on a large scale across borders.

The importance of clearer rules for declining jurisdiction under Article 30 (2) is to demonstrate that when attempting to justify retention of jurisdiction in situations where it would be more sensible in terms of judicial economy and fairness for the parties to resolve the dispute in another forum, Member State courts should consider both the practical and public interests. When confronted with group litigation involving facts, witnesses, and evidence from multiple jurisdictions, it is critical for a court to be able to properly evaluate whether it is the most appropriate forum to hear the dispute, or whether it should decline jurisdiction in favour of a more appropriate forum where the majority of discoverable items and deposable witnesses are located. 67 VI.

Recommendations

And Conclusion The European Commission questioned in its Green Paper if challenges encountered in the operation of the lis pendens and associated actions provisions of the Brussels I Regulation could be remedied by improving communication and cooperation across courts. 68 Judicial collaboration could be critical in determining whether similar parallel collective acts fall under the purview of Article 30. Collaboration and interactions between the Courts like this are regarded as critical in both the United States and Canada. The Manual for Complex Litigation (the Manual) is a resource used by judges and lawyers in the United States to help them deal with and manage complicated situations such as multijurisdictional litigation and class actions.

69 When related actions are pending in various federal courts and consolidation is not 67 Robert TC Telfer, ‘Forum shopping and the private enforcement of EU competition law: is forum shopping a dead letter? ’ (PhD thesis, University of Glasgow 2017). 68 Green Paper on the review of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters COM (2009) 175, 7. 69 Federal Judicial Centre, Manual for Complex Litigation accessed 9 April 2023. an option, the Manual recommends that judges coordinate their proceedings to avoid duplication and conflicts. In the EU context, a register may be developed at a low cost and controlled by a pre-existing European Union-wide agency, such as the European Judicial Network (EJN).

The EU may also decide to consider assigning the task of managing multi-jurisdictional collective actions to a single entity. The MDL Panel [Judicial Panel on Multidistrict Litigation] handles this in the federal courts of the United States. The MDL Panel has the authority to transfer civil actions involving common questions of fact to a common district for pre-trial consolidation if it is determined that doing so would benefit the convenience of the parties and witnesses and promote efficient resolution of the actions. 70 The EJN could function as a type of MDL Panel under Article 30 of the Brussels I Regulation, making decisions on the transfer and consolidation of proceedings. When faced with linked measures affecting many Member States, it may be preferable to have an external body make impartial determinations concerning the appropriate forum for collective actions.

When combined with the upkeep of a central register, the EJN would have a one-of-a-kind ability to correctly assess the feasibility of consolidation which is an important approach for reducing parallel litigation. In the context of former Article 6(1) [now Article 8(1)], the Commission proposed consolidation in its Green Paper. 71 It considered extending the Article to allow a claimant to suit one of several defendants in the forum where any of them is domiciled, as long as the claim is extremely closely related. According to the Green Paper, the provision could be expanded to allow for consolidation “provided the court has jurisdiction over a certain quorum of defendants”.

Consolidation of proceedings should be used by Member State courts, particularly in the context of cross-border collective redress in antitrust litigation as it may be more expedient to resolve all linked claims collectively. There is clear evidence of an increase in private antitrust litigation in various Member States. The plaintiff's bar, both imported from the US and homegrown, is establishing itself not only in the UK, but also in more popular continental European jurisdictions such as Germany and the Netherlands, as follow-on litigation becomes more culturally (and legally) acceptable. It is 70 Robert TC Telfer, ‘Forum shopping and the private enforcement of EU competition law: is forum shopping a dead letter? ’ (PhD thesis, University of Glasgow 2017).

71 Green Paper on the review of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters COM (2009) 175, 7. imperative to level across the legal landscape of reliability of trying a case on antitrust infringements in several jurisdictions to avoid forum shopping and promote a ‘one forum dispute settlement’. Europe can no longer be considered of as a region where antitrust damages exposure is unlikely to result from antitrust violations; on the contrary, it is now the new normal.