Il "cartello delle vitamine" e la giurisdizione per connessione nelle azioni risarcitorie antitrust

This essay focuses on the jurisdictional problems related to global horizontal cartels, comparing the jurisdictional treatment of antitrust actions for damages brought by vitamins purchasers in U.S.A. and in Europe. While the U.S. Supreme Court has recently narrowed the scope for “foreign-to-foreign” claims in the antitrust field, a prime opportunity of forum shopping seems to be still open in Europe – specially when transnational groups of undertakings are involved – relying on Art. 6.1 of EC Regulation N. 44/2001. An interesting decisions of the U.K. High Court allows a German firm that has purchased goods in Germany from an indirect subsidiary of the parent company fined by the EC Commission to sue that subsidiary in the U.K., relying on the link between this claim and the claim for damages brought – by the same plaintiff – against another subsidiary domiciled in the U.K., notwithstanding the absence of any purchase from the U.K. defendant. The Author argues that the enforcement of Art. 6.1 in the situation sketched above could lead to inappropriate multiplication of forums and should therefore not be granted de plano. In order to avoid the risk of abuse of process it is suggested that consolidation of claims should be possible only in the State of the domicile of the main responsible of the infringement or of the firm from which the goods were purchased at inflated prices. The Author then critically addresses the latest developments in the E.C.J. case law on Art. 6.1, remarking the importance of a scrutiny of the strength of the primary claim, in order to prevent the use of the proviso with the sole object of removing a defendant from his proper forum.