CJEU, 8th chamber, December 22, 2022, No C-98/22

THE COURT (Eighth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 1(1) of 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 (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings between, on the one hand, Eurelec Trading SCRL (‘Eurelec’) and Scabel SA, companies having their seat in Belgium, and, on the other, the ministre de l’Économie et des Finances (Minister for the Economy and Finance, France) concerning restrictive practices in relation to suppliers established in France.

 Legal framework

 European Union law

3 Recital 10 in the preamble to Regulation No 1215/2012 states:

‘The scope of this Regulation should cover all the main civil and commercial matters apart from certain well-defined matters …’

4 Article 1 of that regulation, which is contained in Chapter I, headed ‘Scope and definitions’, provides, in paragraph 1:

‘This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’

 French law

5 Book VI of the code de commerce (Commercial Code), in the version applicable to the facts in the main proceedings (‘the Commercial Code’), headed ‘Pricing freedom and competition’, includes, inter alia, Title IV, itself headed ‘Transparency, anticompetitive practices and other prohibited practices’. Article L 442-6 of that code, which appears under that Title IV, provides:

‘I. Any producer, trader, manufacturer or person recorded in the trade register shall be held liable for and shall be obliged to make good the damage caused by:

…

2° Subjecting or seeking to subject a trading partner to obligations that create a significant imbalance in the rights and obligations of the parties;

…

III. Proceedings shall be brought before the competent civil or commercial court by any person who provides proof of legitimate interest, the Public Prosecutor’s Office, the minister responsible for the economy or the President of the Competition Authority, where the latter detects a practice mentioned in this article in the course of cases under his or her jurisdiction.

During these proceedings, the minister responsible for the economy and the Public Prosecutor’s Office may ask the court to which the case is referred to order that the practices mentioned in this article be ceased. They may also, for all these practices, request a declaration of nullity of the illegal clauses or contracts and the recovery of the undue payments. They may also request the pronouncement of a civil fine of up to EUR 5 million. However, this fine may be increased to three times the amount of the total sums unduly paid, or, in proportion to the advantages derived from the infringement, up to 5% of the pre-tax turnover earned in France by the perpetrator of the practices during the last complete fiscal year since the fiscal year preceding the fiscal year in which the practices mentioned in this article were implemented. Compensation for the harm suffered may also be sought. …

…’

6 Title V of Book VI of the Commercial Code, headed ‘Investigative powers’, contains Articles L 450-1 to L 450-10.

7 Article L 450-1, II, of the code provides:

‘Officials duly authorised by the minister responsible for the economy may carry out the necessary inquiries pursuant to the provisions of the present book.’

8 According to the first paragraph of Article L 450-4 of the Commercial Code, the officials mentioned in Article L 450-1 of that code may, with the authorisation and under the control of a judge, conduct inspections at any premises and seize documents and any information medium in the course of investigations requested, inter alia, by the minister responsible for the economy.

9 Article L 450-8 of the code states:

‘If anyone obstructs, in any way whatsoever, the exercise of the functions with which the agents mentioned in Article L 450-1 are entrusted pursuant to this book, this shall be punished by a prison sentence of two years and a fine of EUR 300 000.’

 The dispute in the main proceedings and the question referred for a preliminary ruling

10 Eurelec, a company incorporated under Belgian law, is a central price and purchasing negotiation body established by the E. Leclerc group and the Rewe group, which are retailers’ cooperatives incorporated, respectively, under French and under German law.

11 Scabel, a company incorporated under Belgian law, acts as an intermediary between Eurelec and Leclerc’s French and Portuguese regional central purchasing bodies and provides administrative and technical services for Eurelec.

12 The Groupement d’achat des centres Édouard Leclerc (GALEC) is the national central purchasing body of the Leclerc group, which negotiates annual framework contracts with French suppliers that are implemented by the regional central purchasing bodies.

13 The Association des centres distributeurs Édouard Leclerc (ACDLEC) is responsible for developing the long-term strategy of the Mouvement E. Leclerc and initiated the alliance between the E. Leclerc and Rewe brands in Europe.

14 Between 2016 and 2018, the ministre de l’Économie et des Finances (Minister for the Economy and Finance, France) conducted an investigation which led it to suspect the existence of possible restrictive practices implemented in Belgium by Eurelec in relation to suppliers established in France. According to that investigation, Eurelec forced suppliers to accept price reductions for no consideration, in breach of the Commercial Code, and required them to accept the application of Belgian law to the contracts concluded in order to circumvent French law.

15 Taking the view that the existence of the suspected practices had been confirmed by inspections and seizures of documents carried out during February 2018 on the premises of GALEC and ACDLEC, the Minister for the Economy and Finance, by documents served by the court bailiff dated 19 July and 27 September 2019, pursuant to Article L 442-6 of the Commercial Code, brought proceedings against Eurelec, Scabel, GALEC and ACDLEC before the tribunal de commerce de Paris (Commercial Court, Paris, France) requesting that the court declare that those practices subjected their trading partners to obligations creating a significant imbalance in the rights and obligations of the parties, order those companies to cease those practices and order them, inter alia, to pay a civil fine. The companies being sued raised an objection alleging that the French courts lacked jurisdiction to hear the action brought by the Minister for the Economy and Finance in so far as it was directed against Eurelec and Scabel, companies established in Belgium, pursuant to the provisions of Regulation No 1215/2012.

16 By interim ruling of 15 April 2021, the tribunal de commerce de Paris (Commercial Court, Paris) rejected the objection alleging lack of jurisdiction and declared that it had jurisdiction to hear the action.

17 Eurelec et Scabel lodged an appeal against that ruling with the cour d’appel de Paris (Court of Appeal, Paris), the referring court, arguing that the action brought by the Minister for the Economy and Finance did not fall under ‘civil and commercial matters’, within the meaning of Regulation No 1215/2012, and, therefore, that that court did not have jurisdiction in so far as the action was directed against them.

18 The Minister for the Economy and Finance considers that the requests do fall within the scope ratione materiae of Regulation No 1215/2012. Indeed, since the purpose of the action being brought is to defend France’s economic public policy, the minister considers that it must be heard by a French court. As regards the use of the powers of investigation, the minister considers it necessary to draw a distinction between the investigation phase and the phase of the court proceedings, maintaining that the applicability criterion of Regulation No 1215/2012 is the use made of such evidence and not the manner in which it is gathered. The minister adds, finally, that the action is contained within a relationship of equal standing with the companies being sued, in so far as the minister is also subject to the rules of the code de procedure civile (Code of Civil Procedure) applicable to all the parties to the proceedings.

19 In those circumstances, the cour d’appel de Paris (Court of Appeal, Paris) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are “civil and commercial” matters, as defined in Article 1(1) of [Regulation No 1215/2012] to be interpreted as including in the scope of that regulation an action – and the judicial decision rendered at the end of the proceedings – (i) brought by the [Minister for the Economy and Finance] pursuant to Article [L 442-6, I, 2o, of the Commercial Code] against a Belgian company, (ii) seeking a declaration of the existence of restrictive practices, an order that they cease and an order that the alleged perpetrator of those practices pay a civil fine, (iii) on the basis of evidence obtained in the exercise of his [or her] specific powers of investigation?’

 The question referred for a preliminary ruling

20 By its question, the referring court asks, in essence, whether Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that the concept of ‘civil and commercial matters’, within the meaning of that provision, includes an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order that they cease in relation to suppliers established in the first Member State, where that public authority exercises powers of investigation or powers to bring proceedings falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.

21 In that regard, it is apparent from the Court’s case-law that, although certain actions, where the opposing parties are a public authority and a person governed by private law, may come within the scope of Regulation No 1215/2012, it is otherwise where the public authority is acting in the exercise of its public powers (judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 35 and the case-law cited).

22 The exercise of public powers by one of the parties to the action, because it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, excludes such an action from ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012 (judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 36 and the case-law cited).

23 It follows that, in order to determine whether or not a matter falls within the scope of the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012, and, consequently, whether it comes within the scope of that regulation, it is necessary to determine the nature of the legal relationships between the parties to the action and the subject matter of the action or, alternatively, the basis of the action and the detailed rules applicable to it (judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 37 and the case-law cited).

24 Accordingly, an action where the opposing parties are the authorities of a Member State and businesses established in another Member State, in which those authorities seek, primarily, findings of infringements constituting allegedly unlawful unfair commercial practices and an order for the cessation of such infringements and, as ancillary measures, an order for publicity measures and the imposition of a penalty payment, falls within the scope of the concept of ‘civil and commercial matters’ in that provision (see, to that effect, judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 64).

25 That is not so, however, in the case of an application to be granted the power to determine future infringements simply by means of a report issued by an official of the public authority in question, since such an application relates in actual fact to special powers that go beyond those arising from the ordinary legal rules applicable to relationships between private individuals (see, to that effect, judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 62).

26 In the present case, it is apparent from the referring court’s decision that, first, the action at issue in the main proceedings, the purpose of which is to defend France’s economic public order, was brought on the basis of evidence obtained from inspections on the premises and seizures of documents. However, such powers of investigation, even if their exercise requires the prior authorisation of a judge, nonetheless fall outside the scope of ordinary law, in particular because they cannot be implemented by private individuals and because, under the relevant national provisions, any person obstructing the exercise of such measures incurs a prison sentence and a fine of EUR 300 000.

27 Second, the action in the main proceedings seeks, inter alia, the imposition of the civil fine referred to in the second paragraph of Article L 442-6, III, of the Commercial Code. However, although it is true that such a fine must be imposed by the competent court, only the minister responsible for the economy and the Public Prosecutor’s Office may request its imposition. In particular, under Article L 442-6 of the Commercial Code, the victim of restrictive practices may only claim compensation for damage caused by those practices and request the cessation of those practices or that the clause concerned be declared invalid.

28 In that regard, the action at issue in the main proceedings is different from the one at issue in the case which gave rise to the judgment of 16 July 2020, Movic and Others (C‑73/19, EU:C:2020:568), since, in that case, the competent public authorities did not request the imposition of a fine against the companies alleged to have committed commercial infringements, but only the making of a cessation order in respect of those infringements, a power which interested persons and consumer protection associations also had (see, to that effect, judgment of 16 July 2020, Movic and Others, C‑73/19, EU:C:2020:568, paragraph 48).

29 In those circumstances, by bringing the action at issue in the main proceedings, the Minister for the Economy and Finance is acting ‘in the exercise of State authority (acta iure imperii)’ within the meaning of Article 1(1) of Regulation No 1215/2012, so that that action is not covered by the concept of ‘civil and commercial matters’ referred to in that provision; this, however, is a matter for the referring court to determine.

30 In the light of the foregoing considerations, the answer to the question referred is that Article 1(1) of Regulation No 1215/2012 must be interpreted as meaning that the concept of ‘civil and commercial matters’, within the meaning of that provision, does not include an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order that they cease in relation to suppliers established in the first Member State, where that public authority exercises powers to bring proceedings or powers of investigation falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.

 Costs

31 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 1(1) of 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

must be interpreted as meaning that the concept of ‘civil and commercial matters’, within the meaning of that provision, does not include an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order that they cease in relation to suppliers established in the first Member State, where that public authority exercises powers to bring proceedings or powers of investigation falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.