Mero accertamento negativo dell’illecito antitrust e forum damni (nota a Corte di giustizia dell’Unione Europea, Sez. I, 25 ottobre 2012, C-133/11)

For the first time the Court of Justice explicitly states that point 3 of art. 5 Regulation N. 44/2001 must be in-terpreted as meaning that an action for a negative dec-laration, seeking to establish the absence of liability in tort, falls within the scope of that provision. The Author agrees with the solution endorsed by the Court and crit-ically addresses the objections raised by the Advocate general. The rule of special jurisdiction laid down in Art. 5.3 is based on a particularly close connecting fac-tor between the dispute and the court of the “place where the harmful event occurred or may occur”. The role of the parties in the dispute has no bearing on the existence of this close connection, which is therefore solely dependent upon the facts of the case and upon the localization of the event in dispute. The Author con-siders the risk of excessive forum shopping, enhanced by the rule of lis pendens, and the well-known problems related to "torpedo" actions and concludes that, pro-vided that the court seized is sufficiently close to the facts of the case, there is no reason to deprive the party seeking to establish his non-liability of the special fo-rum. The A. argues, however, that in order to fulfill the objectives of legal certainty and of proximity, in the specific field of international competition litigation the connecting factor in art. 5.3 should be construed nar-rowly as referring to the “affected market”, irrespective of the role of the parties