Competition litigation and EU private international law rules

Chapter 6 considers the EU rules on jurisdiction and applicable law as they apply to competition–law related disputes. The jurisdiction rules, now enshrined in the Brussels I Recast Regulation, are well-established with some, limited case-law in relation to their application to competition law disputes are considered first. There has been increasing jurisprudence regarding their application in a competition law context in relation to hard-core cartel overcharges, in particular under the delict provision in Article 7(2), with prominent rulings by the Court of Justice inter alia in Cartel Damages Claims and Trans Tibor. The potential to prorogate and the ability to pre-empt prospective claims by proactive use of the lis pendens provision may be significant strategic litigation tools. However, potentially the most important rule in multi-state, multi-party cartel infringement cases is Article 8(1) BIRR allowing claimants to combine claims against defendants. Subsequently the chapter considers more recent developments in relation to the applicable law, focusing on the Rome II Regulation, adopted in 2007, which makes specific provision for identifying the applicable law in relation to anti-competitive infringements. There has been little jurisprudence in this regard and there remains considerable scope for interpretation of the various aspects of the central provision in Article 6(3).