CJEU: a parent company may, 'a priori', be sued in its country for competition infringements committed by its subsidiaries in other Member States

A judgment of the CJEU, dated February 13, 2025, has resolved a preliminary ruling referred by the Supreme Court of the Netherlands concerning its international jurisdiction to hear a case in which the claimant sought the joint and several liability of a parent company (Dutch) and its subsidiary (Greek) for damages suffered as a result of an anti-competitive infringement committed by the subsidiary (in Greek territory).

The facts giving rise to the preliminary question submitted by the Supreme Court of the Netherlands, and resolved by the CJEU in the aforementioned judgment, are as follows:

• By decision dated September 19, 2014, the Hellenic Competition Commission (HCC) found that Athenian Brewery SA (AB or the subsidiary) had abused its dominant position in the Greek beer market, in violation of Article 102 of the Treaty on the Functioning of the European Union and Greek national competition law.
• AB is part of a brewing group whose parent company is headquartered in Amsterdam (Netherlands). In this regard, it is relevant to highlight that, according to the judgment, the parent company: (i) defines the group’s strategy, although it does not carry out operational activities in Greece, and (ii) between 1998 and 2014 (the relevant period for the infringement), indirectly held 98.8% of AB’s capital.
• Throughout the competition proceedings before the national authority, the company Macedonian Thrace Brewery SA (MTB) requested that the parent company be explicitly included in the investigation. However, the Greek competition authority concluded: (i) that there was no evidence of its direct involvement in the established infringements, and (ii) that the specific circumstances did not allow for a presumption that the parent company had exercised decisive influence over AB. However, the authority did not address the possibility of applying the iuris tantum presumption recognized by the CJEU’s case law, according to which, if a parent company directly or indirectly holds all or almost all of the capital of a subsidiary that has committed a competition infringement, the parent company is deemed to exercise decisive influence over the subsidiary’s conduct and may be held liable for the infringement in the same manner as the subsidiary.
• Based on the HCC’s decision, MTB filed a follow-on action before the Amsterdam District Court (Rechtbank Amsterdam), requesting that the subsidiary and the parent company be held jointly liable for the damages allegedly suffered by MTB as a result of the competition law infringement established by the Greek authority and, consequently, be ordered to compensate MTB for the damages incurred.
• To support the jurisdiction of the Dutch court, the claimant essentially argued that Article 8(1) of Regulation No. 1215/2012 (Brussels I Bis Regulation) provides that a person domiciled in a Member State may be sued, where there are multiple defendants, in the courts of the domicile of any one of them, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Consequently, it argued that the parent company (Dutch) was an anchor defendant for the purposes of the litigation—i.e., a defendant that attracts international jurisdiction over the other defendants in a cross-border dispute—allowing the proceedings to be brought jointly against both companies (parent and subsidiary) before the Dutch courts.
• The subsidiary and the parent company, on the other hand, challenged the jurisdiction of the Dutch court to hear the case initiated by MTB.
• In response, the Amsterdam District Court declared itself competent to hear the action against the parent company (as it was domiciled in Amsterdam) but declined to hear the claim against the subsidiary (domiciled in Greece), considering that the connection between the two actions was not sufficiently close (within the meaning of Article 8(1) of the Brussels I Bis Regulation) to justify their joint adjudication and thus prevent conflicting judgments.
• However, the Amsterdam Court of Appeal (Gerechtshof Amsterdam) overturned the decision regarding the lack of international jurisdiction over the subsidiary, stating that it could not be ruled out that the subsidiary and the parent company formed a single economic unit (as defined for the application of competition law). It therefore referred the case back to the court of first instance for a decision on the merits.
• The subsidiary and the parent company appealed the appellate court’s decision to the Supreme Court of the Netherlands (Hoge Raad der Nederlanden), which decided to stay the proceedings and refer two preliminary questions to the CJEU regarding the interpretation of Article 8(1) of the Brussels I Bis Regulation. Specifically, the two questions posed by the court were the following:
  • On one hand, whether, when assessing its own jurisdiction over a subsidiary established in another Member State (in the context of an antitrust action), the court of the parent company's domicile must proceed on the basis of the rebuttable presumption – recognized in European competition law – that the latter exercises a decisive influence on the economic activity of the subsidiary.
  • And, if so, how that presumption of decisive influence should actually be applied if this was denied by the parent company and, in particular, whether it would be sufficient for its application to assume that it could not be excluded in advance (without the need for a detailed analysis of the substance).

CJEU Decision

In view of the above, developing its previous case law on the public and private application of competition law, the CJEU resolves the preliminary question posed by the Supreme Court of the Netherlands in the following terms:

• First, the CJEU recalls that the objective of the jurisdictional rule set out in Article 8(1) of the Brussels I bis Regulation is essentially to avoid the risk of contradictory judgments arising from the parallel handling of related proceedings in different Member States.
• Specifically, such jurisdictional rule—which, as mentioned above, allows a person domiciled in a Member State to be sued, if there are multiple defendants, before the court of the domicile of any one of them, provided that the claims are so closely connected that it is expedient to hear and determine them together—constitutes an exception to the general rule of jurisdiction based on the defendant’s domicile under Article 4 of the Brussels I bis Regulation and, therefore, must be interpreted strictly (Beverage City Polska, C-832/21, paragraphs 20 and 21).
• More specifically, the CJEU states, referring to its previous case law, that for this exceptional rule on jurisdiction to apply, it is essential, in accordance with the very wording of Article 8(1) of the regulation, that there be a substantial link between the claims brought against the defendants—" a connection of such a kind that it is expedient to determine those actions together"—and that potentially contradictory judgments could arise from the same factual and legal situation (CDC Hydrogen Peroxide, C-352/13).
• However, as also recognized in the CJUE case law, Article 8(1) cannot be used to manipulate judicial jurisdiction at will (forum shopping) —i.e., to remove a defendant from the jurisdiction of the courts of its domicile by artificially creating or maintaining the conditions for the applicability of the cited provision. It is for the national court to verify that the conditions for its application have not been artificially created, should the defendant provide evidence suggesting such a scenario (again, CDC Hydrogen Peroxide, C-352/13).
• In this regard, the CJEU recalls that such a hypothesis (i.e., that judicial jurisdiction is being artificially altered through the instrumental creation of the conditions for the application of Article 8(1) of the Brussels I bis Regulation) must be ruled out when the various claims brought are genuinely connected and it is appropriate to handle and adjudicate them jointly as they relate to the same factual and legal situation. This is the case—according to the CJEU’s previous findings—when actions are brought against multiple companies that participated in a single and continuous infringement of competition law, even if their participation took different forms (CDC Hydrogen Peroxide, C-352/13, paragraph 21).
• As a corollary of this reasoning, the CJEU—following the Advocate General’s opinion—concludes that the same reasoning applies in cases where claims are based on a company’s involvement in a competition law infringement and are brought against both that company and its parent company, when it is alleged that they jointly form a single economic unit (as that concept is interpreted in the context of the public and private enforcement of competition law; see Skanska Industrial Solutions and Others, C-724/17, EU:C:2019:204, paragraphs 30 and 31).

In other words, the CJEU concludes that if it is demonstrated that the defendant parent company and its subsidiary form part of the same economic unit and thus constitute a single undertaking within the meaning of competition law, the mere existence of that economic unit may determine not only their joint and several liability for the anticompetitive conduct, but also the applicability of Article 8(1) of the Brussels I bis Regulation, in order to avoid the risk of contradictory judgments in the context of the same factual and legal situation. This holds true regardless of whether, as in the case under review, the liability of the parent company had not previously been declared (or had even been ruled out) by the national authority.

• The CJEU states that this interpretation of Article 8(1) of the Brussels I bis Regulation is consistent with the objective of foreseeability in jurisdictional rules (paragraph 33), as each affected company (parent/subsidiary) can reasonably foresee that, in the event of an infringement of EU competition law by one of them, it may be sued before the courts of the Member State of the domicile of the other in actions based on that infringement (paragraph 35).
• Furthermore, this interpretation is also consistent—especially in the case at hand—with the principle of legal certainty, considering that, unlike decisions of the European Commission in competition matters—which, under Article 16(1) of Regulation 1/2003, are binding on national courts adjudicating on the same infringement—decisions of national competition authorities, outside the Member State where they were issued, constitute only prima facie evidence of the existence of the infringement under Article 9(1) of Directive 2014/101. This would, in the CJEU’s view, justify a joint analysis of the claims in dispute to avoid contradictory judgments on the same factual and legal situation.

Then, the CJEU analyses the presumption of dominant influence, which has been extensively developed in the context of public application of competition law rules (notably in the context of challenges brought by companies against Commission decisions declaring their participation in competition infringements—see, inter alia, CJEU judgment of 26 October 2017, Global Steel Wire and Others v Commission).

• As mentioned earlier, this rule establishes that when a parent company holds the entirety (or virtually the entirety) of the share capital of a subsidiary that has infringed competition law, there is a rebuttable presumption (iuris tantum) that the parent company exercises decisive influence over the subsidiary’s economic activity and is therefore jointly and severally liable for any fines imposed (CJEU judgment of 26 October 2017, Global Steel Wire, EU:C:2017:819).
• The CJEU finds that this iuris tantum presumption must also apply in the case of claims brought by a potential injured party against a company that owns all or almost all of the capital of another company that participated in an anticompetitive infringement. This follows because: (i) the concept of an “undertaking” for the purposes of competition law enforcement cannot have a different scope in public and private enforcement (CJEU judgment of 6 October 2021, Sumal, C-882/19, EU:C:2021:800), and (ii) in assessing its own jurisdiction, the national court does not examine the merits or admissibility of the claim but merely identifies the existence of potential connecting factors with the forum State that could justify its jurisdiction.
• Accordingly, the CJEU rules that in cases where joint and several liability of a parent company and its subsidiary is sought for damages arising from a competition law infringement committed by the subsidiary, the court of the parent company’s domicile may base its jurisdiction on the presumption that the parent company exercises decisive influence over the subsidiary if it holds, directly or indirectly, the entirety or virtually the entirety of its share capital—simply verifying (provided national law allows it) that this influence cannot be ruled out a priori.
• However, the CJEU adds that, in conducting this verification—and in ensuring that international jurisdiction has not been artificially attracted to the forum Member State—the defendant must be allowed to present evidence suggesting either: (i) that the parent company did not directly or indirectly hold the entirety or virtually the entirety of the subsidiary’s share capital; or (ii) that, despite such ownership, the presumption should be deemed rebutted.

Conclusion

This CJEU judgment will undoubtedly be significant for the enforcement of competition law at the European level, as it will help potential injured parties of anticompetitive conduct in a Member State (infringements of Articles 101 and 102 of the TFEU) to, in principle, bring the appropriate damage actions before the courts of the State where the anticompetitive infringement has occurred (and against the company sanctioned by the corresponding national authority). Additionally, if that company is wholly (or nearly wholly) owned by a parent company based in another Member State, the injured party may also bring the action before the courts of that Member State. This would be based on the presumption of the parent company's decisive dominant over its subsidiary, which is now relevant not only for determining the objective conditions of (joint and several) liability but also for establishing international jurisdiction under Article 8(1) of the Brussels I bis Regulation.

In this regard, it will be crucial to observe how national courts conduct the necessary prima facie verification—or, if preferred, a preliminary assessment—when requested by the defendant, to ensure that the claimant is not artificially creating the conditions for the applicability of Article 8(1) of the Brussels I bis Regulation. To this end, not only must the defendant present the necessary evidence to support this claim (or to rebut the iuris tantum presumption of decisive influence), but they must do so in a way that allows the court to assess it clearly at such an early stage of the proceedings as the jurisdictional challenge. This would enable the national court to preliminarily exclude the existence of a decisive influence by the parent company over the subsidiary that could justify international jurisdiction.