ECJ’s preliminary ruling on Art. 8(1) of Regulation (EU) No 1215/2012 (judgement dated 13 February, 2025, C-393/23 – Heineken) – concept of ‘economic unit’ establishing interna-tional jurisdiction

In 2014, the Greek National Competition Authority, the Hellenic Competition Commission (“HCC”), fined the Greek company Athenian Brewery SA (“AB”) for abusing its dominant position on the Greek beer market under Article 102 TFEU and Greek competition law. AB is the Greek subsidiary of Heineken N.V. (“Heineken”), a global brewing company seated in Amsterdam, the Netherlands. Heineken was not active on the Greek beer market itself. However, Heineken approximately (indirectly) held 98.8% of the shares in the capital of AB in the relevant time period and decided on strategic aspects for the Heineken group. The Macedonian Thrace Brewery SA (“MT”) is another brewery which operates on the Greek beer market. MT claimed a joint and several compensation against AB and Heineken before the Dutch District Court in Amsterdam (hereinafter referred to as “District court”) as a result of the infringement of AB on the Greek beer market.

The HCC found no evidence of a direct involvement of Heineken and that the circumstances in this individual case did not support an assumption of Heineken exercising decisive influence over AB. The District Court denied its jurisdiction for the claim, arguing that Heineken and AB were not sufficiently closely connected in the sense of Art. 8(1) of the Brussels Regulation (available here):

“A person domiciled in a Member State may also be sued: (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided 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 (…).”

The Court of Appeal did not confirm the District Court’s decision and referred the case back to the latter court for a new examination and a decision on the merits. Heineken and its subsidiary AB appealed against this before the Supreme Court of the Netherlands. The Supreme Court of the Netherlands referred the request for a preliminary ruling to the ECJ.

The ECJ held that the national court could establish its international jurisdiction on the presumption that a parent company had decisive influence on its subsidiary in case it held most of the capital of the subsidiary which has been fined for the violation of antitrust law. In this case, there is a close connection between both defendants in the sense of Art. 8 (1) Brussels Regulation resulting in joint international jurisdiction at the domicile of one of the defendants. When establishing its international jurisdiction, the national court may limit itself to verifying that decisive influence by the parent company could not be excluded a priori. The defendants maintain the possibility of relying on firm evidence to rebut this presumption.

In its reasoning, the ECJ referred to previous case law:

• In its judgment dated 21 May 2015 (C-352/13) – CDC Hydrogen Peroxide (decision available here), the ECJ confirmed that, under Art. 8 (1) Brussels Regulation, an action for damages could jointly be brought against undertakings which have participated in a single and continuous anticompetitive infringement, even if conducted at different times and different places and even if throughout the proceedings, the action against the defendant, at which place the action was brought before court, was withdrawn. This decision differs from the case beforehand regarding Heineken, in which the parent company did not engage in anticompetitive behaviour.
• Referring to its judgments on 14 March 2019 (C-724/17) – Skanska (decision available here) and on 6 October, 2021 (C 882/19) – Sumal (decision available here), the ECJ confirmed that in case a parent company and its subsidiary formed an economic unit, it is this economic unit that infringed antitrust law. A decision by the Commission on the anticompetitive behaviour of the undertaking is not required. However, if such a decision exists, the decision of a national competition authority of a Member State may not conflict with the decision adopted by the Commission.
• The ECJ also highlighted the rebuttable presumption for the exercise of decisive influence in cases where a parent company holds (almost) all shares in a subsidiary (judgment on 26 October 2017 (C 457/16 P and C 459/16 P to C 461/16 P) – Global Steel Wire and Others v Commission (operative part of the judgement available here). Possible examples for such a rebuttal are independent acts or decisions of the subsidiary on the market. The ECJ clarified in its current decision that this also applies for damage claims.

From a procedural point of view, it is very important to point out that the ECJ outlined the fact that final decisions of the European Commission on infringements of antitrust law are binding in any Member State. A decision of a national competition authority is only binding for the courts in the particular Member State, but does serve as prima facie evidence of the infringement, the ECJ explained.

The ECJ continues and evolves its previous case law regarding the concepts of an undertaking, the economic unit and the rebuttable presumption of the exercise of decisive influence in cases where a parent company holds most of the capital shares of its subsidiary. In contrast to the case regarding CDC Hydrogen Peroxide (s. above), there was no decision by the Commission in this case at hand, but (only) one of a national competition authority, the Greek HCC where (only) the subsidiary was active. Hence, it is confirmed that national cases can also be dealt with before national courts of other Member States.

This decision can be mirrored to the decision in the case concerning Sumal (s. above) which enabled plaintiffs to file against a subsidiary which was not referred to in the decision against the parent company by the Commission in case both entities form a single economic unit.

In any case, companies should be aware of the possibility to take action before a court at the seat of the parent company and of so-called ‘forum shopping’ cases. Forum shopping cases describe litigants which attempt to have their cases be heard in front of their most favourable courts. However, even if the latest decision might appear plaintiff-friendly and as an advantage with regard to forum shopping, the ECJ made clear that there may be no circumvention by the plaintiff of the general rule laid down in Article 8(1) Brussels Regulation to artificially establish a jurisdiction for the sole purpose of removing one of the defendants from their home jurisdiction through a claim against multiple defendants, as laid down in the judgement on 7 September 2023 (C-832/21) – Beverage City Polska (decision available here). There is no free pass for forum shopping.

Overall, it is true that the latest preliminary ruling can be seen as a further (procedural) step for parent liability and as a consistent continuation of the effet utile concept of the Courage case law.

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