The Netherlands

On behalf of the team

MTB / AB and Heineken

On 23 June, the Supreme Court referred the questions for a preliminary ruling announced on 21 April[1] regarding jurisdiction of the Dutch court in the case of Macedonian Thrace Brewery S.A. (“MTB“) versus the Greek Athenian Brewery S.A. (“AB“).[2]

In 2014, AB was fined by Greek competition authority for abusing its dominant position on the Greek beer market. In addition to AB, MTB also brought actions against Dutch company Heineken N.V. (“Heineken“) because it held nearly 100% of the shares in AB’s capital in the relevant period, thereby exerting decisive influence on AB, an argument under substantive competition law.

For the jurisdiction of the Dutch court vis-à-vis AB, MTB invoked Article 8(1) of the Brussels I Regulation Recast[3], which provides that in the event of several defendants, a defendant (AB) can also be summoned to appear before the court of the domicile of a co-defendant (the anchor defendant, Heineken), provided the claims are ‘so closely connected’ that it is expedient to hear and determine them together. AB and Heineken contest that Heineken is liable on the basis of substantive competition law and argue that there is therefore no ‘close connection’, which leads to the District Court’s lack of jurisdiction to rule on the claims against AB.

The question is to what extent the discussion of liability must already be conducted at the jurisdiction stage. The Supreme Court therefore asked two questions, which, briefly put, read as follows:

  1. Should the District Court already assume the presumption of decisive influence in the assessment of jurisdiction? and
  2. If so, how should the standard formulated in the Kolassa and Universal Music judgments that defences must also play a role in the assessment test be specified? In that case, is it sufficient in the jurisdiction assessment to assume jurisdiction that it cannot be deemed to have been ruled out in advance that there was such decisive influence?

In formulating these questions referred for a preliminary ruling, the Supreme Court seems to want to readily assume jurisdiction, which of course says nothing about that party’s actual liability. This will require a substantive assessment during the proceedings.

[1] Supreme Court 21 April 2023, ECLI:NL:HR:2023:660 (MTB/AB and Heineken).

[2] Supreme Court 23 June 2023, ECLI:NL:HR:2023:965 (MTB/AB and Heineken).

[3] Regulation (EU) No 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 (recast) (“Brussels I Regulation Recast”).