Power Cables and Cardboard Packaging: Sumal confirmed and refined

On 16 April 2026 the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases C-672/23 Electricity & Water Authority of the Government of Bahrain and Others (Power Cables) and C-673/23 Smurfit Kappa Europe and Others (Cardboard Packaging). The ruling further clarifies the interaction between the Sumal¹ doctrine and Article 8(1) Brussel I bis Regulation in the context of competition damages claims. 

The judgment addresses whether claims against multiple defendants can be considered sufficiently closely connected to be heard together before a single court, including where some defendants are not addressees of the underlying infringement decision but are alleged to form part of the same undertaking. In this context, the CJEU was presented with an opportunity to confirm and refine its existing case law, including Sumal², Skanska³, App Stores Claims⁴, and MTB/Heineken⁵. It holds that claims against an anchor defendant that was not an addressee of the infringement decision on one hand, and addressees of that infringement decision on the other, may indeed be considered “so closely connected” within the meaning of Article 8(1) Brussels I bis, if there are “serious indications” that those defendants form part of the same undertaking.

This blog post provides an overview of the judgment, including its background, the key aspects of the CJEU’s ruling, and its implications for competition damages litigation. 

Background 

The jointly addressed preliminary references both arise from competition damages claims brought before the Dutch courts, in which jurisdiction is sought on the basis of the domicile of Dutch anchor defendants that were not addressees of the underlying infringement decisions.  

In Power Cables, Gulf-based utility companies seek damages based on the European Commission’s 2014 cartel decision (AT.39610) concerning high-voltage cables, including for projects in Bahrain, Kuwait and Oman. The Prysmian group was one of the cartel members, and the claimants brought their claims inter alia against Draka, a Dutch intermediate holding company within the Prysmian group. Draka was not an addressee of the Commission’s infringement decision. In first instance, the Amsterdam District Court declined jurisdiction over the non-Dutch defendants, giving rise on appeal to the question of whether the Dutch non-addressee anchor defendant could establish jurisdiction under Article 8(1) Brussels I bis, including for damage largely suffered outside the European Economic Area (EEA). 

Cardboard Packaging concerns a follow-on damages claim brought by Unilever on the basis of a 2019 decision of the Italian competition authority (AGCM) concerning packaging and cardboard sheet cartels. Unilever brought its claim inter alia against Smurfit Kappa International in Amsterdam, despite not being an addressee of the AGCM’s infringement decision. In this case, the Dutch court did assume jurisdiction over the foreign co-defendants.

In both cases the first-instance rulings on jurisdiction led to appeals to the Amsterdam Court of Appeals. That Court asked the CJEU to clarify whether the Sumal doctrine –setting out the criteria for joint and several liability within a single economic unit –can serve as a basis for jurisdiction under Article 8(1) by establishing a “close connection” between claims. In particular, the referring court sought guidance on whether a Dutch anchor defendant, including a non-addressee holding company like Draka in the Power Cables case, can suffice to establish jurisdiction over foreign co-defendants, and how several factors such as foreseeability, the applicable merits threshold (notably whether claims are manifestly unfounded), and claims relating to damage suffered outside the EEA would impact this assessment. For more information on the background of the preliminary references and the at times peculiar application of Sumal by the Dutch courts, see our earlier blogpost.    

The CJEU’s judgment  

The judgment largely aligns with Advocate General (AG) Kokott’s 2025 Opinion and does not go significantly beyond reaffirming existing and well-established case law. The CJEU reformulated most of the referring court’s questions to place less emphasis on the specific facts of the case and instead focus on the interpretation of the underlying EU law principles, in line with its role. Similarly, it declined to address whether multiple anchor defendants could be relied upon, on the basis that this was a purely hypothetical question. As a result, some questions regarding the relevance of specific circumstances for jurisdiction were left unanswered. 

Nevertheless, the judgment addresses several issues that had created uncertainty regarding the jurisdiction of Dutch courts and led to delays. The key points of clarification arising from the judgment are set out below. 

I. The Sumal doctrine and “close connection” 

First, the CJEU holds that a sufficiently close connection within the meaning of Article 8(1) may exist even where the anchor defendant has not been identified as liable in an infringement decision. It is sufficient that there are serious indications that the anchor defendant belongs to the same undertaking as the companies to which the infringement was attributed.⁶ 

The CJEU bases this conclusion on its settled case law, such as the fact that the concept of a single economic unit gives rise, as a matter of law, to the joint and several liability of all entities forming part of that unit at the time of the infringement.⁷ It similarly reiterates other related principles developed in case law, including the rebuttable presumption of decisive influence of a parent company over a subsidiary where the parent holds all, or nearly all, of the shares in the subsidiary (the Akzo presumption), which applies equally in private damages actions (as held in MTB/Heineken),⁸ and the two-pronged test for subsidiary liability established in Sumal.⁹ 

Under that test, a subsidiary that was not an addressee of the infringement decision may be held liable for the infringement where (i) economic, organisational and legal links show that the subsidiary does not act independently of the parent company to whom the infringement was attributed on the market, and (ii) there is a concrete link between its economic activities and the subject matter of the infringement.¹⁰ As noted by AG Kokott, with approval of the CJEU, this will typically be the case where the anti-competitive agreement concluded by the parent (or the ‘grandparent’) company relates to the same products as those marketed by the subsidiary or sub-subsidiary, or where that entity is responsible for the production, sale, delivery, or distribution of those products, as well as for the provision of services covered by the cartel.¹¹ 

The CJEU further clarifies that the designation of companies as cartel participants in an infringement decision does not, in itself, establish the required close connection between claims, but may serve as relevant evidence in that regard.¹² For the purposes of establishing jurisdiction under Article 8(1), it is sufficient that it cannot be excluded at the time the action is brought that the defendants (i.e., the anchor defendant that was not an addressee of the decision, and another defendant from the same corporate group that was an addressee) form part of the same undertaking.¹³

Finally, the CJEU confirms that an intermediate holding company which merely holds and manages shares – without itself carrying out economic activities – may nevertheless form part of the same economic unit and thus be held jointly and severally liable. This is the case where it exercises decisive influence over a subsidiary whose activities are directly connected to the subject matter of the infringement.¹⁴ 

In essence, the Court applies the Sumal criteria and the Akzo presumption in tandem. Liability is first attributed to the subsidiary of the intermediary holding company under the Sumal criteria, and is then extended to the intermediary holding company on the basis of its decisive influence over the subsidiary (Akzo). Although this approach builds on existing case law and is therefore not entirely novel, it is the first time the Court has explicitly combined these two lines of reasoning. This could have significant implications for companies with holding structures in the Netherlands. Where the companies may have assumed that their Dutch intermediary holding companies (often set up for tax purposes) cannot be used as anchor defendants, the judgment suggests that it is not that clear cut. The Dutch holding company could be held liable where it holds the (majority of the) shares in a subsidiary that carries out economic activities linked to the subject matter of the infringement (even when that subsidiary is not based in the Netherlands).  

II. Foreseeability 

The CJEU follows the AG in her conclusion that foreseeability (or predictability) – that is, whether a co-defendant could reasonably have anticipated being sued before the court of the anchor defendant – is not a standalone jurisdictional criterion. Rather, it is a general principle underpinning the jurisdictional rules that must be considered in their application.¹⁵ Moreover, a defendant that participated in a single and continuous infringement as part of an undertaking must be deemed to have established a close connection with the other participants and should reasonably foresee being sued before the court of another member of that undertaking.¹⁶ 

III. Prospects of success and harm outside the EEA 

In line with the judgment in Heineken/MTB, the CJEU draws a clear distinction between the assessment of jurisdiction and the admissibility and/or merits of the case. When determining its international jurisdiction, the national court is not required to examine the admissibility or the merits of the claim, but merely to identify the connecting factors with the forum capable of establishing jurisdiction under Article 8(1).¹⁷ Accordingly, the prospects of success of the claim against the anchor defendant should, in principle, not be taken into account.  

That said, claims that are manifestly unfounded, artificial, or lacking any genuine interest cannot serve as a basis for jurisdiction. So national courts clearly still have wriggle room to rule that a claim is manifestly unfounded in the jurisdiction phase. However, the CJEU sets a standard for this test stating that this is the case where there is “convincing evidence” that the claimant has artificially satisfied the conditions of Article 8(1) solely to establish jurisdiction. Crucially, however, mere uncertainty as to the artificial nature of a claim is insufficient to render it manifestly unfounded. In reiterating this standard, the Court underscores the high threshold that must be met before a claim can be dismissed on that ground.  

As regards territorial scope, the CJEU confirms that the fact that the claim relates to damages suffered outside the EEA does not, in itself, render a cartel damages claim manifestly unfounded for jurisdictional purposes, provided a causal link between the claimed damages and the infringing conduct exists.¹⁸ Therefore, in line with the right to compensation for harm caused by competition law infringements, it is irrelevant that the damage occurred outside the EU, as long as such a causal link exists.¹⁹ 

IV. International and territorial jurisdiction 

Finally, the CJEU holds that Article 8(1) directly confers both international and territorial jurisdiction on the national court within whose territorial district the anchor defendant is domiciled, without the need to rely on national procedural rules to determine which specific court within the Member State has jurisdiction.²⁰ Once again, this interpretation is not particularly revolutionary, but firmly grounded in the Court’s prior case law spanning several decades²¹ and, as the AG notes, supported by earlier preparatory work predating Brussels I bis.²²

The CJEU also clarifies that, where a court considers itself to lack territorial jurisdiction, it may refer the case to the competent court within the same Member State, provided that this is consistent with national procedural rules and does not undermine the effectiveness of Brussels I bis.²³ This reflects the fact that Brussels I bis governs the allocation of jurisdiction, while the procedural rules of the forum apply. 

Our key takeaways 

The judgment is aligned with, and further develops, the existing line of case law on international jurisdiction in competition litigation cases. In particular, it confirms that (i) the fact that an anchor defendant was not an addressee of the infringement decision is not decisive, (ii) intermediate holding companies can be held liable in certain circumstances, even if they do not themselves engage in economic activities that are the same as the subject matter of the decision, and (iii) a claim is not manifestly unfounded simply because it seeks compensation for damage suffered outside the EEA. 

Therefore, the CJEU confirms that the necessary jurisdictional links can be established relatively easily in competition cases. Companies should be aware that, if they infringe EU competition law, damages claims may be brought in jurisdictions where they have intermediate holding companies with no substantive economic activity, including for harm occurring outside that jurisdiction or even outside the EEA. The threshold for establishing jurisdiction for damages claims is thus lower than previously assumed. 

The competition law concept of an “undertaking” and civil law notions of corporate liability remain challenging to reconcile. As the judgment illustrates, the CJEU’s role is limited to providing authoritative interpretations of EU law and may not always offer the level of binary clarity that is being sought by national courts. Whether this judgment will be sufficient to bring an end to debates on jurisdiction in national courts remains to be seen. Potential future questions are likely to focus on the standard of evidence required to demonstrate that a claim is manifestly unfounded.  

1. Case C-882/19, Sumal SL v Mercedes Benz Trucks España SL ECLI:EU:C:2021:800. ↩︎
2. Ibid. ↩︎
3. Case C-724/17, Vantaan kaupunki v Skanska Industrial Solutions Oy and Others ECLI:EU:C:2019:204. ↩︎
4. Case C-34/24, Stichting Right to Consumer Justice and Stichting App Stores Claims ECLI:EU:C:2025:936. ↩︎
5. Case C–393/23, Athenian Brewery SA and Heineken NV v Macedonian Thrace Brewery SA ECLI:EU:C:2025:85. ↩︎
6. Joined Cases C‑672/23, Electricity & Water Authority of the Government of Bahrain and Others and C-673/23 Smurfit Kappa Europe and Others (hereinafter: Power Cables and Cardboard Packaging), para. 73. ↩︎
7. Ibid, para. 57. ↩︎
8. Ibid, para. 63. ↩︎
9. Ibid, para. 64. ↩︎
10. Sumal, para. 51. ↩︎
11. Opinion of Advocate General Kokott of 3 April 2025, Power Cables and Cardboard Packaging (hereinafter: AG Kokott Opinion), paras 69 and 74. ↩︎
12. Ibid, paras 72 and 75. ↩︎
13. Power Cables and Cardboard Packaging, paras 99-100. ↩︎
14. Ibid, paras 101-103. ↩︎
15. Ibid, paras 75-80; AG Kokott Opinion, paras 81-84. ↩︎
16. Power Cables and Cardboard Packaging, para. 80. ↩︎
17. Ibid, para. 85. ↩︎
18. Ibid, paras 95-96. ↩︎
19. Ibid, paras 92-95. ↩︎
20. Ibid, paras 109-110. ↩︎
21. Ibid, see case law listed in para. 107. ↩︎
22. Ibid, para. 110; AG Kokott Opinion, para. 92. ↩︎
23. Power Cables and Cardboard Packaging, paras 120-121. ↩︎