Action on restrictive practices

Facts

From 2016 to 2018, the French Minister for economical Affairs and Finance conducted an investigation which led to suspicions of the existence of practices that could restrict competition in Belgium by a Belgian company E. to suppliers established in France. E. It was intended to force suppliers to accept price reductions without the common benefit, in violation of the French Commercial Code (hereinafter: KH) and to impose on them the application to the Belgian law contracts concluded in order to circumvent French law. The Minister considered that the veracity of the alleged practices E. has been confirmed by the results of the checks. Based on KH he sued, among others. E., requesting the court in Paris to declare that these practices imposed obligations on its trading partners creating a crucial imbalance between the rights and obligations of the parties and to order E. to cease these practices and to impose a fine on them, among others. E. raised a plea of deficiency of jurisdiction, pointing out that the action brought by the Minister did not fall within the meaning of the word ‘civil and commercial matters’ within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council No 1215/2012 of 12.12.2012 on jurisdiction and the designation and enforcement of judgments in civilian and commercial matters (OJ L L 2012, No 351, p. 1). Consequently, this court in Paris had no jurisdiction.

The mention for a preliminary ruling

The Court of Justice referred the following question for a preliminary ruling: ‘Is Article 1(1) of Regulation 1215/2012/EU (Brussels I bis) to be interpreted as meaning that the concept of ‘civil and commercial matters’ within the meaning of that provision includes an action brought by a public authority of a associate State against companies established in another associate State to establish, punish and order the cessation of restrictive practices against suppliers established in the first country if that authority exercises the powers of enquiry or the power to bring proceedings outside the scope of common law applicable to relations between individuals?’.

TEU position

It follows from the caselaw of the CJEU that, although any disputes between a public authority and a private law body may fall within the scope of Regulation 1215/2012/EU, it is different where a public authority exercise its public authority 16.7.2020, Movic and in., C-73/19, paragraph 35, Legalis).

The Court found that the concept of ‘civil and commercial cases’ within the meaning of Article 1(1) of Regulation 1215/2012/EU falls within the scope of a judicial dispute between the authorities of a associate State and economical operators established in another associate State in which those authorities require, by virtue of the main message of the existence of infringements which constitute, in the assessment of those bodies, unlawful commercial practices and the cessation of them, and, by way of additional request, ordering the publication of a judgement and the imposition of a punishment (judgment of Movic and in., paragraph 64). The Court has stressed that this is not the case erstwhile it calls for powers to find the existence of future infringements through the average protocol drawn up by an authoritative of the body concerned, since specified a request is in fact a substance of powers going beyond the standards of universal law applicable in relations between individuals (issue Movic and in., paragraph 62).

First, the action in question, which concerns the protection of French public policy in the field of the economy, was based on evidence obtained from checks on premises E. And I'm taking care of the papers. However, specified investigative powers, even if their exercise must be authorised by the court in advance, go beyond the scope of common law, in peculiar due to the fact that they cannot be exercised by private operators, and because, in accordance with the applicable national legislation, any individual who opposes the exercise of specified measures is subject to a custodial conviction and fine of EUR 300 000.

Second, the main proceedings are aimed, inter alia, at the decision of the fine provided for in KH. However, while it is actual that specified a fine should be imposed by the competent court, only the Minister liable for economical affairs and the prosecutor can apply for it. In particular, in accordance with KH, the individual affected by restrictive practices may only search compensation for the harm caused by those practices and require them to cease or annul the contractual provision in question. According to the Court of Justice, the action under review differs from that in the case in question Movic and in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Movic and in., paragraph 48).

The Court held that, under the circumstances, by bringing the action in question, the French Minister for economical Affairs and Finance acted ‘in the exercise of public authority (acta iure empire()’ within the meaning of Article 1(1) of Regulation 1215/2012/EU, so specified action does not fall within the concept of ‘civil and commercial matters’ referred to in that provision. The Court of Justice noted, however, that it was for the referring court to verify the above.

In conclusion, the CJEU held that Article 1(1) of Regulation 1215/2012/EU should be interpreted as meaning that the concept of ‘civil and commercial matters’ within the meaning of that provision does not include an action for the determination, punishment and injunction of restrictive practices against suppliers established in the first associate State, issued by a public authority of a associate State against companies established in another associate State, where that public authority makes usage of investigative powers or powers initiating judicial proceedings beyond the scope of private law rules applicable to relations between undertakings.