On October 24, 2018, the Court of Justice of the European Union (CJEU) delivered its preliminary ruling in the case between Apple and eBizcuss, a former reseller of Apple products. (Case C‑595/17).
The judgment addresses a heavily contested issue: the application of contractual jurisdiction clauses in actions for damages for infringements of competition law. Importantly, the preliminary ruling distinguishes between Article 101 of the Treaty of the Functioning of the European Union (TFEU) (which deals with anti-competitive agreements and concerted practices such as cartels) and Article 102 of the TFEU (which deals with abuse of dominance) as regards the applicability of choice of forum clauses to competition damages claims.
Background
In 2012, eBizcuss brought damages proceedings against Apple in France claiming that Apple had abused its dominant position contrary to Article 102 of the TFEU, in particular, by favouring its own distribution network over its third party resellers. Apple, however, argued that the French courts had no jurisdiction in this matter as the choice of forum clause included in the contract between Apple and eBizcuss conferred exclusive jurisdiction on the Irish courts. After five years of proceedings before several French courts, the country's highest court – the Cour de Cassation – referred a request for a preliminary ruling to the CJEU, asking whether a party can rely on a choice of forum clause in the context of claims seeking damages for an abuse of dominance where that clause does not explicitly cover competition law infringements.
CDC Hydrogen peroxide Case
Previously, the CJEU had in the CDC Hydrogen Peroxide case of 21 May 2015 examined Article 23 Brussels I Regulation (44/2001) and ruled that choice of forum clauses can only be upheld in the context of actions for damages based on Article 101 of the TFEU, if they explicitly refer to competition law infringements. The purpose of that requirement, the CJEU stated, is to avoid a party who has no knowledge of an unlawful cartel at the time of the conclusion of the contract, being surprised by the other party invoking a choice of forum clause to shield themselves against damages claims relating to the cartel infringement. It is important to note that the CDC Hydrogen Peroxide case focused on cartel cases, and did not touch upon the issue of abuse of dominance. The Apple case addresses this previously unresolved issue.
