Brogsitter Defence Returns

Brog­sit­ter Defence Returns
Some time ago, the ECJ ruled in its Wikin­ger­hof decis­i­on on inter­na­tio­nal juris­dic­tion in anti­trust actions if the­re is also a con­trac­tu­al rela­ti­onship bet­ween the par­ties. Accor­din­gly, the con­nec­ting fac­tor of the tort or delict also appli­es in such cases if the inter­pre­ta­ti­on of a con­tract is not indispensable.

The decis­i­on pro­vi­ded some cla­ri­ty: if an action is based on the appli­ca­ble car­tel law, for exam­p­le, it is cle­ar­ly a mat­ter of tort law. The place of suc­cess prin­ci­ple appli­es to torts. An action can be brought at the place whe­re the suc­cess of the tort occurs. In the case of abu­si­ve acts of digi­tal plat­forms, this is often any place of mar­ket activity.

In his ana­ly­sis of the Wikin­ger­hof decis­i­on, which is also very rea­da­ble, my col­le­ague Tho­mas Thie­de cor­rect­ly sum­ma­ri­sed that the so-cal­led brog­sit­ter defence has thus been abo­lished. I com­ple­te­ly agree with this from a legal point of view.

And yet, in prac­ti­ce, the objec­tions from the ECJ’s older Brog­sit­ter decis­i­on still per­sist. Accor­ding to this decis­i­on, the con­trac­tu­al juris­dic­tion super­se­des the juris­dic­tion in tort. Thus, as soon as the­re is also a con­trac­tu­al basis for a busi­ness rela­ti­onship bet­ween the par­ties, the objec­tion could be rai­sed that it also depends on the inter­pre­ta­ti­on of this con­tract. A court cal­led upon in Ger­ma­ny could then decli­ne its inter­na­tio­nal jurisdiction.

In prac­ti­ce, this is not far-fet­ched. For exam­p­le, in the area of digi­tal plat­forms, affec­ted com­pa­nies regu­lar­ly assert claims for injunc­ti­ve reli­ef under car­tel law against a plat­form with which they simul­ta­neous­ly have a con­trac­tu­al busi­ness rela­ti­onship. This may be the case, for exam­p­le, if they have been blo­cked by the plat­form and the­re is no objec­ti­ve jus­ti­fi­ca­ti­on for this. In that case, such a blo­cking is inad­mis­si­ble under anti­trust law — i.e. in tort — wit­hout it being rele­vant to the inter­pre­ta­ti­on of a con­tract. The inter­na­tio­nal juris­dic­tion of the tort from Art. 7 No. 2 EuGG­VO appli­es to this. A com­pa­ny with its seat abroad can still be sued in Germany.

Why is this so? The pro­hi­bi­ti­ons under anti­trust law are inde­pen­dent pro­hi­bi­ti­ons that must be inter­pre­ted inde­pendent­ly accor­ding to their pro­tec­ti­ve pur­po­se. This inde­pen­dent inter­pre­ta­ti­on is not repla­ced by a con­tract or the struc­tu­re of the busi­ness rela­ti­onship. The lat­ter is all the more the case if the busi­ness rela­ti­onship is decisi­ve­ly defi­ned by the domi­nant com­pa­ny its­elf, which as such is its­elf sub­ject to mar­ket power abu­se con­trol tog­e­ther with its con­tracts. The com­pa­nies con­cer­ned regu­lar­ly have no alter­na­ti­ve to the busi­ness rela­ti­ons of a domi­nant com­pa­ny. Howe­ver, it is pre­cis­e­ly the con­trac­tu­al arran­ge­ment that is rest­ric­ted by the pro­hi­bi­ti­on of abu­se of mar­ket power under tort law.

In order to rebut the Brog­sit­ter objec­tion, it the­r­e­fo­re makes sen­se, despi­te the unam­bi­guous case law, to point out sepa­ra­te­ly in anti­trust com­plaints or peti­ti­ons with an inter­na­tio­nal ele­ment that the inter­pre­ta­ti­on of a con­tract is not essen­ti­al and that no con­trac­tu­al claims are enforced.

About the author

Porträtbild von Dr. Sebastian Louven

Dr. Sebastian Louven

I have been an independent lawyer since 2016 and advise mainly on antitrust law and telecommunications law. Since 2022 I am a specialist lawyer for international business law.

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