In a very interesting decision, the Order of the Commercial Court No. 12 of Madrid, 12 September 2018 rejects a decline plea due to lack of jurisdiction and objective competence for dealing with a lawsuit, and considers that the Court have international jurisdiction to resolve the dispute.
The plaintiff, “Carretillas Barcelona, S.L.”, a Spanish entity had filed an action for damages caused by an infringement of competition law against a Spanish company “Volvo Group España, S.A.U.”, based on a Decision of the European Commission of 19 July 2016 (Truck Cartel). The defendant argued that, according to Article 7.2 of Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels II bis), the jurisdiction to hear the case lies with the court of the place where the harmful event has occurred or may occur, which, according to the doctrine of the Court of Justice of the European Union (CJEU), is the place where the cartel was set up.
However, the Court considers that “the aforementioned precept does not establish, as seems to be deduced from the pleading, an imperative jurisdiction, in the manner provided in Article 52 of the Spanish Procedure Law (Ley de Ejuiciamiento Civil or LEC). In this sense, Art. 7 of the EU Regulation (Special Jurisdiction) allows, as an exception to the general rule of art. 4.1, to sue a person domiciled in a Member State before the courts of another Member State in the specific cases it contemplates. It does not establish a mandatory jurisdiction by reason of the occurrence of the facts for certain cases, but the possibility for the plaintiff to bring the action in the courts of the place where certain facts occurred, even if the defendant is not domiciled in that Member State. That provision is therefore not considered applicable to the present case since it differs from the present factual situation. Thus, such a provision would only serve to affirm the jurisdiction of a court before which an action has been brought against a national of a different Member State, but not to deny the jurisdiction of the court before which the action has been brought. According to art. 51.1 LEC , legal persons will be sued in the place of their domicile, unless the law provides otherwise, and art. 7.2 of Regulation 1215/2012 , allows but does not impose to sue them in another place for specific cases. In the present case a legal entity of Spanish nationality sues a company of Spanish nationality, with its registered office in the jurisdiction of this court, so that under Article 21.1 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial or LOPJ) the Spanish courts have jurisdiction to hear this lawsuit”.