In its judgment of 24 November 2020, Wikingerhof (C-59-19), the Court of Justice ruled that, even though alleged abuses of a dominant position are implemented within the context of a contractual relationship, the rule of special jurisdiction in matters relating to tort, delict or quasi-delict laid down in the Brussels I bis Regulation (Regulation no. 1215/2012) remain applicable to such abuses. In practice, this means that actions can be brought before the courts of the place where the alleged anticompetitive harm occurred.
The case concerns the German hotel Wikingerhof which concluded a contract in 2009 with Booking.com BV, a company governed by Netherlands law which has its seat in the Netherlands and operates an accommodation booking platform. In 2015, Wikingerhof objected to the inclusion in the contract at issue of a new version of the general terms and conditions, claiming that Booking.com committed an abuse of a dominant position, and subsequently brought an action before the German courts seeking an injunction prohibiting Booking.com from imposing unfair practices contrary to competition law. Booking.com argued that the German courts lacked jurisdiction.
It must be recalled that, according to the Brussels I bis Regulation, action can be brought in the courts of the place where the defendant has its seat. Under the special jurisdiction rules, action can also be brought, among others, in the courts of the place of performance of the contractual obligation (point 1(a) of Article 7) or in the courts for the place where the harmful event occurred in matters relating to tort, delict or quasi-delict (point 2 of Article 7).
The Court was asked whether point 2 of Article 7 of the Brussels I bis Regulation applies to an action seeking an injunction to stop certain practices implemented in the context of the contractual relationship between the applicant and the defendant, based on an allegation of abuse of a dominant position.
In its judgment, the Court explains that an action concerns matters relating to a contract if the interpretation of the contract between the parties appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct. By contrast, where the applicant relies on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract to assess whether the conduct in question is lawful or unlawful, the cause of action is a matter relating to tort, delict or quasi-delict.
In the present case, the Court notes that the action brought by Wikingerhof is based on the legal obligation to refrain from any abuse of a dominant position and considers that, in order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of German competition law, it is not indispensable to interpret the contract between the parties. The Court therefore concluded that, subject to verification by the referring court, the action brought by Wikingerhof is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of the Brussels I bis Regulation.
This judgment will most likely improve access to justice for victims of abuses of a dominant position. Indeed, they can bring action against such practices in the courts of the place where the harmful event occurred which covers both the place of the event giving rise to the damage and the place where the damage occurred (the loss was suffered).
Please contact Pierre de Bandt or Jeroen Dewispelaere for further information about this case and/or for general legal advice relating to competition law.