In a recent judgement, the CJEU provided more guidance on the application of the 'anchor defendant rule' of Article 8(1) Brussels I Recast Regulation (Regulation (EU) 1215/2012). This judgment, rendered by the CJEU in the Heineken v MTB case (C-393/23, ECLI:EU:C:2025:85) is highly relevant for both cross-border litigation in general and international competition litigation in particular. Under Article 8(1) Brussel I Recast a foreign defendant can be sued together with a domestic defendant before the latter's local court under certain conditions. The CJEU ruled that the competition law 'concept of undertaking' and the related rebuttable presumption of a parent company's exercise of decisive influence over its subsidiary can be taken into account when assessing jurisdiction on the basis of the anchor defendant rule. However, the CJEU also emphasised that there must still be some room for rebuttal on the basis of firm evidence at the jurisdiction stage.

The Athenian Brewery SA (AB) and Macedonian Thrace Brewery SA (MTB) are breweries based in Greece and operating on the Greek beer market. AB is a part of the Heineken Group. Between September 1998 and September 2014, Heineken NV, a company based in Netherlands, indirectly held 98.8% of the shares in AB. As a factual starting point for the Court of Justice of the European Union (CJEU), the Dutch national courts from which the case was ultimately referred to it had already determined that Heineken set the Heineken Group's strategy without taking part in AB's activities in Greece. The Greek competition authority found in September 2014 that AB had abused its dominant position on the Greek beer market and that this constituted a single and continuous infringement of Article 102 of the Treaty on the Functioning of the European Union (TFEU) and of the Greek national competition rules. MTB sued Heineken (as anchor defendant) and AB before the Dutch court with a claim for compensation for damage based on the decision of the Greek competition authority. The Dutch courts accepted jurisdiction over the claims against Heineken based on the home court rule of Article 4 Brussels I Recast Regulation. However, in relation to AB, the Dutch Supreme Court (Hoge Raad) referred preliminary questions to the CJEU on the interpretation of Article 8(1).

CJEU on anchor defendant rule

The CJEU – in line with previous cases about other provisions – confirmed that under Article 8(1) the national court must be able to examine its international jurisdiction in the light of all of the information available to it, including that provided by the defendant. The CJEU reiterated that the special jurisdictional grounds that derogate from the principal home court jurisdiction of Article 4, such as the anchor defendant rule of Article 8(1), must be interpreted strictly. Article 8(1) requires such a close connection between the claims of the same applicant against various defendants that there is an interest in dealing with them together to avoid – in the context of the same factual and legal situation – a divergence arising if the claims were to be dealt with separately. To assess whether there is such a connection, information intended to establish that the claim does have the same factual situation and legal situation will thus be relevant. Article 8(1) cannot be relied upon for the sole purpose of depriving a defendant of the jurisdiction of the courts of the State where the defendant is domiciled.

Concept of undertaking (single economic unit) and the decisive influence presumption

In the specific case where a parent company holds, directly or indirectly, all or almost all of the capital of a subsidiary which has infringed the competition rules, under EU competition law the 'decisive influence presumption' applies. This is a rebuttable presumption that the parent company exercises a decisive influence over the conduct of its subsidiary and forms a single economic unit with it. The parent company can – theoretically – rebut that presumption by providing sufficient evidence showing that the subsidiary acted autonomously on the market. 
Where it is established that a parent company and its subsidiary are part of the same economic unit and therefore constitute a single undertaking within the meaning of EU competition law, the concept of undertaking has certain implications. Specifically, it automatically entails the application of joint and several liability amongst the entities of which the economic unit is made up at the time that the infringement was committed and as regards the subject of the infringement.

Concept of undertaking (single economic unit) creates close connection for anchor defendant rule; rebuttal possible

When assessing jurisdiction, the court seised does not assess the admissibility or the merits of the claims but merely identifies the connecting factors with the Member State in which that court is situated which provide a basis for the jurisdiction under Article 8(1). The CJEU held that – in claims such as in this case – Article 8(1) does not preclude the court seised from relying exclusively on the decisive influence presumption, provided that the defendants are not deprived of the possibility of relying on firm evidence suggesting either that that parent company did not hold directly or indirectly all or almost all of the capital of the subsidiary, or that that presumption should nevertheless be rebutted. Article 8(1) does not require the defendants' joint and several liability to have been established by a final decision of the European Commission. In other words, an applicant may rely on the decisive influence presumption even if the parent company is not an addressee of the Commission decision.

In essence, the CJEU's judgment entails that, as a starting point, Dutch courts will have to accept jurisdiction over MTB's claim against AB for compensation for the damage caused by the infringement of the Greek competition rules. This is because there is a close connection within the meaning of Article 8(1) given the fact that AB and Heineken form a single economic unit under the EU competition rules. But there is a potential way out. Namely, the decisive influence presumption can be rebutted if Heineken can rely on firm evidence that it did not hold directly or indirectly all or almost all the capital in AB during the period of infringement of the Greek competition rules by AB, or if it can provide other firm evidence that the presumption must nevertheless be rebutted. However, the threshold for the rebuttal seems to be very high. To accept jurisdiction, the national court seised may confine itself to verifying that a decisive influence of the parent company over its subsidiary cannot be excluded a priori.

The fundamental question of the extent to which the national court will need to conduct this assessment – concerning the point at which a prima facie assessment becomes an assessment on the merits – remains unanswered.