competencia judicial internacional

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On November 24, the Court of Justice of the European Union (CJEU) issued an important judgment on international jurisdiction, when it issued a preliminary ruling on a matter raised by the Bundesgerichtshof (Supreme Court of Civil and Criminal Jurisdiction in Germany) on the scope of the forum of special jurisdiction in tort or quasi-delict matters, provided for in article 7.2 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation 1215/2012”).

The matter for a preliminary ruling originates from the dispute that arose between an accommodation reservation platform and a German hotel establishment (Wikingerhof GmbH & Co. KG), which refused to accept the repeated amendment of some of the general conditions set by the platform on the grounds that they constituted an abuse of a dominant position and were, therefore, contrary to competition law.

Wikingerhof filed a lawsuit with the German courts in order to prohibit the platform from performing certain actions related to the positioning and arrangement of offers. In light of this claim, the platform argued that the German courts have no jurisdiction to rule on the matter and that the courts of the Netherlands do have jurisdiction, as they are competent in accordance with the general conditions that apply to the contractual relationship between the parties.

The lack of territorial and international jurisdiction was upheld by both the Kiel Regional Civil and Criminal Court and, on appeal, by the Schleswig Regional High Civil and Criminal Court. However, the Bundesgerichtshof considered that the main proceedings not only dealt with how the contract between the parties should be interpreted, but also raised the issue of enforcing certain contractual conditions contrary to the law of jurisdiction, which is why it asked the CJEU if article 7.2 of Regulation 1215/2012 should be applied in cases where, as happened here, the action brought sought to prohibit certain acts from being performed within the framework of a contractual relationship, even though it was based on an allegation of abuse of a dominant position.

As is known, while Article 4 of Regulation 1215/2012 lays down the general jurisdiction of the courts of the defendant’s Member State, items 1 and 2 of Article 7 of the same regulation prescribe special powers in contractual, tort and quasi-delict matters, allowing the plaintiff to bring his/her action before the courts of other Member States. Specifically, article 7.2 considers as competent the courts and tribunals of a Member State where the effects of the harmful event occur or may occur, as opposed to article 7.1, where the connection point is the obligation that serves as the basis for the claim.

After analyzing the system of competent forums, the CJEU ruled (in line with the conclusions of the Advocate General) that, in order to determine which of the two special forums should be applied, the court hearing the matter must determine whether the plaintiff’s claims are of a contractual, tort or quasi-delict nature, the latter two occurring when “it is not necessary to examine the content of the contract entered into with the defendant to determine whether or not the latter’s behavior is lawful or unlawful, as the defendant has undertaken an obligation independently of said contract”.

In this case, given that Wikingerhof’s action sought to determine whether or not the platform committed an abuse of its dominant position, it was not necessary to interpret the contract binding the parties. Accordingly, it was appropriate to consider the claim as tortious, with the German courts being competent to rule on the matter, as they have jurisdiction for the place where the effects of the alleged anti-competitive behavior would occur. In support of its conclusion, the CJEU maintains that its interpretation “is in accordance with the objectives of proximity and good administration of justice that are pursued by the Regulation“, given that the judge of the market affected by the alleged anti-competitive behavior “is best suited to settle the main question of whether such behavior can be substantiated, especially as regards the collection and evaluation of the relevant evidence provided“.

Undoubtedly, this is a very important judgment, particularly for the electronic commerce sector, where the main platforms often use predetermined clauses, which are also susceptible to being attacked through abuse of dominant position actions.

Author: Jean-Yves Teindas

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