OPINION OF ADVOCATE GENERAL

WAHL

delivered on 5 July 2018 ( 1 )

Case C‑595/17

Apple Sales International,

Apple Inc.,

Apple retail France EURL

v

MJA, acting as liquidator of eB (eBizcuss)

(Request for a preliminary ruling
from the Cour de cassation (Court of Cassation, France))

(Reference for a preliminary ruling — Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Article 23 of Regulation (EC) No 44/2001 — Jurisdiction clause in a distribution agreement — Action for compensation by the distributor based on infringement of Article 102 TFEU by the supplier)

Introduction

1.

The present request for a preliminary ruling concerns the interpretation of Article 23 of Regulation (EC) No 44/2001, ( 2 ) which allows a derogation from the general rules on international jurisdiction defined in that regulation if the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen in connection with a particular legal relationship.

2.

The request was submitted in the context of proceedings between Apple Sales International, Apple Inc. and Apple retail France EURL and MJA, in its capacity as liquidator of eB (‘eBizcuss’), concerning an action for damages brought by eB for infringement of Article 102 TFEU.

3.

The Court is thus requested to clarify whether and within what limits a jurisdiction clause may be disapplied in order to ensure the effectiveness of actions for compensation for the loss resulting from the conduct of undertakings which is alleged to constitute an abuse of a dominant position.

4.

The case thus offers a further opportunity, having regard to the solution reached by the Court in the case that gave rise to the judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335), to provide clarification to the operators concerned in their capacity as drafters of jurisdiction clauses and, in addition, as persons wishing to bring proceedings for compensation for losses the source of which is alleged to lie in an infringement of competition law, in particular of Article 102 TFEU, in what is commonly designated private enforcement.

Legal framework

EU law

5.

Recitals 2, 11 and 14 of Regulation No 44/2001 state:

‘(2)

Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.

…

(11)

The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

…

(14)

The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, must be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.’

6.

Article 23 of Regulation No 44/2001, which appears in Section 7 of Chapter II of that regulation, entitled ‘Prorogation of jurisdiction’, provides in paragraph 1:

‘If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:

(a)

in writing or evidenced in writing; or

(b)

in a form which accords with practices which the parties have established between themselves; or

(c)

in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’

French law

7.

At the time of the facts at issue in the main proceedings, Article 1382 of the code civil (Civil Code) provided that ‘any act of a person which causes injury to another shall oblige him by whose fault it occurred to make reparation’.

8.

Article L 420-1 of the code de commerce (Commercial Code) provides:

‘Concerted actions, agreements, express or tacit arrangements or coalitions, in particular where they are intended to:

1.

limit access to the market or the free exercise of competition by other undertakings;

2.

prevent prices being fixed by the free play of the market, by artificially favouring price increases or reductions;

3.

limit or control production, opportunities, investments or technical progress;

4.

share the markets or sources of supply;

shall be prohibited, even through the direct or indirect intermediary of a company in the group established outside France, when they have the object or may have the effect of preventing, restricting or distorting the free play of competition on a market.’

9.

Article L 420-2 of the code de commerce is worded as follows:

‘The abuse by an undertaking or a group of undertakings of a dominant position in the internal market or a significant part thereof shall be prohibited on the conditions laid down in Article L 420-1. Such abuse may consist, in particular, in a refusal to sell, in tied sales or in discriminatory conditions of sale and in the breaking-off of established business relationships on the sole ground that the partner refuses to accept unjustified business terms.

Where it may affect the functioning or structure of competition, the abusive exploitation by an undertaking or a group of undertakings of the state of economic dependence of a client undertaking or supplier vis-à-vis that undertaking or group of undertakings shall also be prohibited. Such abuse may consist, in particular, in a refusal to sell, in tied sales in discriminatory practices referred to in Article L 442-6 I or in product bundling agreements.’

The main proceedings, the questions for a preliminary ruling and the procedure before the Court

10.

On 10 October 2002, eBizcuss, now represented by MJA, entered into a contract with Apple Sales International, a company governed by Irish law, entitled ‘Apple Authorized Reseller Agreement’, which conferred on it the capacity of authorised reseller of products bearing the Apple brand. That contract, whereby eBizcuss undertook to distribute its contracting partner’s products on a virtually exclusive basis and which was subsequently amended on a number of occasions, contained a clause conferring jurisdiction on the Irish courts.

11.

That clause, drafted in English, was, in the most recent version of the distribution agreement dated 20 December 2005, worded as follows:

‘This Agreement and the corresponding relationship between the parties shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties shall submit to the jurisdiction of the courts of the Republic of Ireland. Apple reserves the right to institute proceedings against Reseller in the courts having jurisdiction in the place where Reseller has its seat or in any jurisdiction where a harm to Apple is occurring.’ ( 3 )

12.

In April 2012 eBizcuss lodged a claim before the tribunal de commerce de Paris (Commercial Court, Paris, France) against Apple Sales International, the United States company Apple and the French company Apple Retail France, seeking payment of damages in the amount of EUR 62500000. In support of its action, eBizcuss maintained, in essence, that the defendant companies were guilty of anti-competitive practices and unfair competition by favouring their own network to its detriment from 2009. ( 4 ) eBizcuss relied in that connection on an infringement of Article 1382 of the code civil (now Article 1240 of the code civil), Article L 420-2 of the code de commerce and Article 102 TFEU.

13.

By judgment of 26 September 2013, the tribunal de commerce de Paris (Commercial Court, Paris, France) upheld the plea of lack of jurisdiction raised by the defendant companies on the ground that a jurisdiction clause in favour of the Irish courts was contained in the contract between that company and eBizcuss.

14.

By judgment of 8 April 2014, the cour d’appel de Paris (Court of Appeal, Paris, France) rejected the objection to the decision on jurisdiction raised against that judgment by eBizcuss, thus confirming that the French courts lacked jurisdiction to settle the claim for damages.

15.

By judgment of 7 October 2015, the Cour de cassation (Court of Cassation, France) quashed that judgment on the ground that the cour d’appel de Paris (Court of Appeal, Paris) had infringed Article 23 of Regulation No 44/2001, as interpreted by the Court in the judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335), by taking account of the jurisdiction clause in the contract between eBizcuss and Apple Sales International, when that clause did not refer to disputes relating to liability resulting from an infringement of competition law.

16.

By judgment of 25 October 2016, the cour d’appel de Versailles (Court of Appeal, Versailles, France) upheld the objection to the decision on jurisdiction lodged by eBizcuss and remitted the case to the tribunal de commerce de Paris (Commercial Court, Paris).

17.

Apple Sales International, Apple Inc. and Apple Retail France lodged an appeal on a point of law against that judgment before the referring court, maintaining, in essence, that where an autonomous action, within the meaning of competition law, has its origin in the contractual relationship, it is necessary to take a choice of jurisdiction clause into account, even if that clause does not make express reference to such an action and no infringement of competition law has first been established by a national or European competition authority.

18.

The referring court states that it has in the meantime become aware of a judgment of the Supremo Tribunal de Justiça (Supreme Court, Portugal) of 16 February 2016, Interlog and Taboada v Apple. That judgment also involved Apple Sales International and a similar jurisdiction clause, drafted in general terms. The Portuguese Supreme Court held that that clause applied to the parties to a dispute relating to the same allegation of abuse of a dominant position in the light of European Union law and concluded that the Portuguese courts lacked jurisdiction.

19.

It was in those circumstances that the Cour de cassation (Court of Cassation) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)

Must Article 23 of Regulation No 44/2001 be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 of the Treaty on the Functioning of the European Union to apply a jurisdiction clause set out in the contract between the parties?

(2)

If the first question is answered in the affirmative, must Article 23 of Regulation No 44/2001 be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 TFEU to apply a jurisdiction clause set out in the contract between the parties, including in cases where that clause does not expressly refer to disputes relating to liability incurred as a result of an infringement of competition law?

(3)

Must Article 23 of Regulation No 44/2001 be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 TFEU to disapply a jurisdiction clause set out in the contract between the parties where no infringement of competition law has been established by a national or European authority?’

20.

Written observations were lodged by Apple Sales International, eBizcuss, the French Government and the European Commission.

Analysis

21.

The present request for a preliminary ruling essentially concerns the interpretation of Article 23 of Regulation No 44/2001 in the specific context of actions for damages brought by a distributor against its supplier on the basis of Article 102 TFEU, namely where the supplier is alleged to have abused its dominant position.

22.

As the divergent positions taken by the French courts called upon to adjudicate in the main proceedings demonstrate, it appears that it is the precise scope of the Court’s interpretation in its judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335) that is at issue here.

23.

More specifically, the question arises whether, in the absence of specific reference to them, a jurisdiction clause applicable to any dispute relating to a contract and to the relations arising therefrom — such as that which, in the main proceedings, confers jurisdiction on the Irish courts — must be disapplied in the event of autonomous actions for damages having as their basis an alleged infringement of Article 102 TFEU. The Court is requested to clarify whether and to what extent a jurisdiction clause agreed between the parties to an agreement (in this instance a distribution agreement) may take effect in the event of disputes in which an infringement of European competition law is relied on.

24.

According to a first interpretation, which is the interpretation that seems to have been applied, in particular, by the Court of Cassation in its judgment of 7 October 2015, such a jurisdiction clause can be taken into account only on condition that it refers expressly to disputes relating to liability incurred as a result of an infringement of competition law.

25.

According to a second interpretation, which is the interpretation that had been applied by the first courts dealing with the main proceedings, but also, in the view of the applicant in the main proceedings, by the Supremo Tribunal de Justiça (Supreme Court), in its judgment of 16 February 2016, Interlog and Taboada v Apple, ( 5 ) a jurisdiction clause drafted in general terms would apply to the parties in a dispute relating to an allegation of abuse of a dominant position in the light of EU law.

26.

Before I examine the questions for a preliminary ruling, I consider it appropriate to set out, by way of introduction, a number of general considerations on the scope of Article 23 of Regulation No 44/2001.

General considerations concerning Article 23 of Regulation No 44/2001

27.

The Court has already been requested on a number of occasions to rule on the interpretation of Article 23 of Regulation No 44/2001, and of the equivalent provision that preceded it, namely Article 17 of the Brussels Convention. ( 6 )

28.

As the Court has consistently observed, those provisions must be interpreted in the light of the wider objectives pursued by the Brussels Convention and by Regulation No 44/2001, namely to reinforce the legal certainty of persons established in the Union by, at the same time, allowing the applicant to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued. ( 7 )

29.

In the general scheme of Regulation No 44/2001, Article 23 is a fundamental provision: it expresses both the principle of the primacy of the autonomy of the freely-expressed intention of the parties (see recital 14 of that regulation) and the requirement for a high degree of predictability (see recital 11 of that regulation). It sets out to designate, clearly and precisely, a court of a Contracting State which is to have exclusive jurisdiction in accordance with the consensus formed between the parties, which is to be expressed in accordance with the strict requirements as to form laid down therein. The legal certainty which that provision seeks to secure could easily be jeopardised if one party to the contract could frustrate that rule simply by claiming that the whole of the contract was void on grounds derived from the applicable substantive law. ( 8 )

30.

As the Court has had occasion to emphasise, in that it allows a derogation from the rules on jurisdiction laid down in Regulation No 44/2001, the conditions, both procedural and substantive, to which Article 23 of that regulation makes the validity of jurisdiction clauses subject, must be interpreted strictly. ( 9 ) Conversely, provided that the procedural and substantive conditions laid down in that regulation are fulfilled, the jurisdiction agreement must be capable of being applied. In fact, the choice of court in a jurisdiction clause may be assessed only in the light of considerations connected with the requirements laid down in Article 23 of Regulation No 44/2001. ( 10 )

31.

As regards the substantive requirement that the conferral of jurisdiction must relate to ‘disputes which have arisen or which may arise in connection with a particular legal relationship’, its purpose is to avoid a party being taken by surprise by the assignment of jurisdiction to a given forum as regards all disputes which would arise from a relationship other than that in connection with which the agreement conferring jurisdiction was made. ( 11 )

32.

Where the applicability of a jurisdiction clause is called in question on the basis of that substantive condition, it is solely for the court before which a jurisdiction clause is relied on to decide whether or not that clause applies to the dispute forming the subject matter of the proceedings. ( 12 )

33.

Although that examination, which requires in particular that the court before which the action is brought was reasonably predictable for the parties at the time when they agreed to that clause, can be carried out only on a case-by-case basis, a number of lines of interpretation must in my view be borne in mind.

34.

First of all, the primacy afforded to the autonomy of the parties, as expressed in the validly agreed jurisdiction clause, means that what matters is whether or not the dispute in question — in the present case an action for damages for the loss allegedly sustained as a result, in essence, of anti-competitive conduct — can be linked to the legal relationship determined in that clause, irrespective of the tortious or contractual nature of the dispute within the meaning of Regulation No 44/2001 and, a fortiori, within the meaning of the applicable national provisions.

35.

Thus, a dispute which is non-contractual in nature, but which arose in connection with the contractual relationship, is capable of coming within the scope of the jurisdiction clause, provided that that dispute has its origin in the contractual relationship in connection with which that clause was entered into.

36.

The binding force of the clause means, next, tha