In September 2014 the Greek Competition Authority found that Athenian Brewery had abused its dominant position in the Greek beer market through various exclusive arrangements but declined to include Heineken in the proceeding, finding no evidence of direct involvement by Heineken in the conduct at issue. Macedonian Thrace then brought suit in the Netherlands courts seeking to hold both companies jointly and severally liable for damages. These proceedings led ultimately to a referral from the Supreme Court of the Netherlands to the Court of Justice seeking an interpretation of Article 8(1) of EU Regulation No. 1215/2012.
The Court observed that jurisdiction is “generally based on the defendant’s domicile,” or alternatively “a close connection between the court and the action” so that a defendant could reasonably foresee being subject to an action in the member state at issue. In particular, Article 8(1) of Regulation 1215/2012 provides that a person domiciled in a member state may also be sued:
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 stated that a national court must first assess whether there is a sufficiently common set of facts and legal issues “to satisfy itself that the claims brought against the sole co-defendant whose domicile gives rise to the jurisdiction of the court” in the action is “not intended artificially” to create jurisdiction. This test could be satisfied, the court said, if the parties are alleged to participate in a competition infringement as “one and the same undertaking” or an “economic unit.” The Court acknowledged that the Greek Competition Authority had not found that Heineken participated in the conduct in Greece, but said that fact would not preclude a European court from finding otherwise. The Court concluded that the record presented the possibility of conflicting results in different jurisdictions for purposes of Article 8(1).
The Court then held that the referring court in the Netherlands could rely on the “presumption that where a parent company holds directly or indirectly all or almost all of the capital of the subsidiary that infringed the competition rules, it exercises a decisive influence over that subsidiary.” The presumption applied in this case, where Heineken indirectly held 98.8% of the shares of Athenian Brewery. The Court did note, however, that the defendants should be given an opportunity to submit evidence to rebut that presumption.
