European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

With respect to special jurisdiction, the regulation provides rules of derived jurisdiction which have the effect of extending the jurisdiction of the court initially seized in very precise cases. Pursuant to Article 8(1), where there is a number of defendants, the plaintiff may therefore sue a defendant who has his domicile on the territory of a Member State, in another Member State, in the court …

Multiple defendants

With respect to special jurisdiction, the regulation provides rules of derived jurisdiction which have the effect of extending the jurisdiction of the court initially seized in very precise cases. Pursuant to Article 8(1), where there is a number of defendants, the plaintiff may therefore sue a defendant who has his domicile on the territory of a Member State, in another Member State, in the courts where one of them is domiciled, provided that the claims are so closely connected that it is expedient to hear and determine them together to avoid the risks of irreconcilable judgments resulting from separate proceedings. Under competition law, the victim of a single and continuous infringement, as found by a decision of the Commission, in which several undertakings have participated in different places and at different times may sue in the courts for the place where any one of  them is domiciled, even where the applicant has withdrawn its action against the sole co-defendant domiciled in the same State as the court seized .  

The extension of jurisdiction in Article 8(1) assumes that the court seized is that in which a defendant is domiciled on the territory of a Member State . It cannot be the court of a Member State which is recognized as having jurisdiction as regards a defendant not in view of the criterion of the place where he is domiciled - located outside the European Union -, but of Article 7(2) . 

The connecting factor between the claims lodged against the various defendants, laid down first by case law , is established by successive regulations. In practice, actions brought by the same plaintiff against multiple defendants must be related when the proceedings are instituted and it is for each national court to verify whether that condition is satisfied in each individual case . However, the plaintiff does not have to establish, in addition to the connection, that the claims against different defendants were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled . 

The connection is insufficient in itself: the fact that companies belong to the same group and have acted in an identical or similar manner in accordance with a common policy devised by one of them cannot justify the extension of jurisdiction in Article 8 . There must be a risk that “irreconcilable” decisions might be rendered . For example, the mere fact that the result of one of the procedures may have an effect on the result of the other - in particular the potential impact of the amount to be repaid in the context of a claim for a declaration of nullity and restitution of the sums paid but not due on the evaluation of the potential loss suffered in the context of a damages claim - does not suffice to characterise the judgments to be delivered in the two procedures as irreconcilable .  In order that decisions may be regarded as contradictory it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of law and fact . Two claims in one action directed against different defendants and based in one instance on contractual liability and in the other on liability in tort or delict cannot be regarded as connected . Conversely, where a court's jurisdiction is based on the general rule of Article 4 of Regulation No 1215/2012, it is not necessary for the actions brought under Article 8 to have identical legal bases . 

Case C-352/13 Cartel Damage Claims, Judgment of 21 May 2015, LawLex201500000644JBJ : the withdrawal of the action by the victim of a cartel against the sole participant domiciled in the State of the court sezed does not affect the jursidiction of that court to pursue the cases against the other participants, unless it is found that the applicant and that defendant had colluded to artificially fulfil, or prolong the fulfilment of the rule of jurisdiction.  

See Case C-645/11 Land Berlin v Ellen Mirjam Sapir and others, Judgment of 11 April 2013, LawLex201300000574JBJ, stating that Article 6(1) of Regulation No 44/2001 [8 Reg. No 1215/2012] is not intended to apply to defendants who are not domiciled in a Member State in the case where they are sued in proceedings brought against several defendants, some of whom are also persons domiciled in the European Union.

Case C-51/97 Réunion européenne and others [1998] ECR I-6511, LawLex200900001016JBJ: the findings of the Court, regarding the application of Article 8(1), were taking place in a legal and factual context that was different from that of the Freeport judgment, insofar as the Réunion européenne judgment covered the accumulation of a special jurisdiction based on Article [7(2)] to hear an action of a criminal nature, and another special jurisdiction based on Article [7(1)] to hear an action of a contractual nature, on the ground that there was a connecting factor between the two actions and where it related to an action brought in the court of a Member State where none of the principal defendants was domiciled. The Court considered that it was possible to admit in these conditions that a jurisdiction based on Article [7] of the regulation, which is a special jurisdiction restricted to exhaustively listed cases, might be used as basis to hear other actions. On the other hand, where the jurisdiction of the court is based on Article [4] of the regulation, as in the Freeport decision, the possible application of Article [8(1)] becomes possible, where the conditions laid down in that provision are met.

Case C-98/06 Freeport [2007] ECR I-8319, LawLex200900001219JBJ; Case C-145/10 Eva-Maria Painer [2011] ECR I-12533, LawLex201200000614JBJ.

Case C-51/97 Réunion européenne and others [1998] ECR I-6511, LawLex200900001016JBJ. 

Case 189/87 Kalfelis v Schröder and others [1988] ECR 5565, LawLex200900001633JBJT.

Case 189/87 Kalfelis v Schröder and others [1988] ECR 5565, LawLex200900001633JBJ.

Case C-98/06 Freeport [2007] ECR I-8319, LawLex200900001219JBJ.

Case C-539/03 Roche Nederland and others [2006] ECR I-6535, LawLex200900001039JBJ.

Case C-616/10 Solvay SA, Judgment of 12 July 2012, LawLex201200002021JBJ, holding that the existence of a risk of irreconcilable judgments in a situation where two or more undertakings established in different Member States are accused, separately, in proceedings pending before a court of one of those Member States, of committing the same infringements - with respect to the same products - of the same national parts of the European patent.

Case C-366/13 Profit Investment SIM SpA, Judgment of 20 April 2016, LawLex201600000854JBJ.

Case C-539/03 Roche Nederland and others [2006] ECR I-6535, LawLex200900001039JBJ: insofar as there can be no finding of the existence of a same situation of fact - the defendants being different and the infringements they are accused of, committed in different Member States, being not the same - and where possible divergences between decisions given further to infringements engaged in different Member States would not arise in the context of the same factual situation - under the Munich Convention of 5 October 1973, any action for infringement of a European patent must be examined in the light of the relevant national law in force in each of the States for which the patent has been granted -, there is no risk that contradictory decisions within the meaning of Article [8(1)] be rendered.

European Business Law

336. Multiple defendants

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

336. Multiple defendants

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise