In Sumal, the Court of Justice held that all legal entities belonging to the same single economic unit as the infringer are jointly and severally liable for cartel damages. This reasoning has serious jurisdictional repercussions for actions against large corporate groups having subsidiaries in multiple countries, which have been confirmed by the Court in Electricity & Water Authority of the Government of Bahrain. The Sumal ruling provides plaintiffs with the opportunity for a virtually unilateral choice of court within the EU, confers a quasi-extraterritorial effect upon the Brussels I bis Regulation, may grant third-country courts jurisdiction for claims against EU-domiciled defendants and allows plaintiffs to unilaterally choose the applicable law through forum shopping. None of the fundamental principles underlying international jurisdiction justify these effects. As neither the Sumal reasoning nor its consequences were foreseen when the Brussels I bis Regulation was drafted, it seems necessary to limit its jurisdictional consequences. This article argues that the availability of domicile jurisdiction of subsidiaries ought to be limited to cases where the underlying liability stems from the operations of the subsidiary itself (for instance through taking part in anticompetitive conduct).
Common Market Law Review