The Dutch SC has today held that it is minded to refer to the CJEU on a variety of issues relating to Rome II’s applicable law rule for (follow-on damages claims) related to competition law infringement. The case is related to the air cargo cartel referral which I flag here and is a follow-up to the Opinion of the AG at the SC, which I discuss here.
The decision to refer is not definitive yet seeing as the judgment was held on a (intra-Netherlands) preliminary reference. Parties are now given the opportunity to comment on the intention to refer.
The SC first of all refers to the questions it has today already sent up to the CJEU, namely whether continuous infringement leads to one albeit diverse claim as opposed to various albeit related claims. I briefly discuss these here. [4.2.8] clearly a qualification as one claim much facilitates the determination of applicable law and therefore arguably also the enforcement of EU competition law (reference to C-605/21 Heureka v Google).
It then addresses Rome II’s scope ratione temporis and the consequential conflit mobile which I discuss in my earlier post. Unlike its AG (who opined that there is no material difference in outcome hence no need to request an academic opinion, as it were, from Luxembourg), the SC does feel that this question needs to be referred to the CJEU, seeing as it held on yet another question referred to it that the Dutch residual rules do not lead to the outcome suggested by the AG.
Finally, the court intends to ask the CJEU to clarify Article 6(3) a (‘markets affected’ and b (conditions for claimant’s choice of law) Rome II, part of the complex layer of rules on the lex causae for follow-on (and stand alone) claims: in particular, the meaning of ‘markets affected’ and the conditions for choice of law which claimants may exercise.
As I discuss inter alia in this paper, Article 6 frankly is a mess, flying directly in the face of predictability so coveted by EU private international law.
[4.6.6] the SC refers to a perceived need for consistency between Article 6 Rome II and Article 7(2) Brussels Ia (e.g. in Volvo), a need which in my opinion is neither as established nor as obvious as the SC sees it.
This will be a very important case for the application of Rome II Article 6.
Geert.
EU Private International Law, 4th ed. 2024, 4.53 ff.
https://www.linkedin.com/posts/geert-van-calster-60abab9_palink-dutch-sc-minded-to-refer-to-cjeu-activity-7308820270905999362-FZ7w?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA
https://x.com/GAVClaw/status/1903054432079647053
