Summary
In May 2002, the proceedings were commenced by Provimi UK, an English company, and two companies in the Trouw Group (Trouw UK and Trouw Germany). The EU competition law damages claims were against the companies in the Roche group, and companies in the Aventis group.
The claimants were large purchasers of vitamins. The defendants were manufactures of vitamins, operating cartels. The breach of EU competition law was established by a Decision of the European Commission which preceded the private actions.
The proceedings in England were initiated under Article 6(1) of Brussels I. The defendants challenged the jurisdiction of the English court, invoking inter alia choice-of-court agreements. The jurisdictional challenges were dismissed by the English court which assumed jurisdiction under the Brussels I Regulation.
The case demonstrated that there were some complex issues to be addressed in cross-border EU competition law actions. In this context, Mr Justice Aikens held:
“45 Although there is no such evidence, I think that the claimants have amply demonstrated that they have the better of the argument that the requirements of the proviso of Art.6(1) are satisfied. First, the claims of Trouw Germany against all the defendants in Folio 475 are very closely connected. They all arise out of the same alleged infringements of Art.81 . They are all private law claims for damages for those infringements. The nature of the claims against all the defendants is identical.
46 Secondly, as counsel for both the Roche and Aventis groups have had to accept in argument, the law on the scope for making claims of this type is very undeveloped. I was not shown any French or German case law on this topic. […] So I have no idea how German or French courts might approach the issue of when or how a company within an “undertaking” would infringe Art.81 ; nor the circumstances in which a claimant could recover damages for an infringement. In particular I have no idea how those courts might approach the key issue of “knowledge” which I have discussed above. Therefore it seems to me that it is highly arguable that different courts would take different approaches to these issues and that those different approaches could result in irreconcilable judgments.
47 Thirdly, therefore, I think that it must follow that it is expedient to hear and determine all these claims together to avoid the risk of irreconcilable judgments. Ultimately the question of when and how an infringement of Art.81 takes place and the circumstances in which a private law claim for damages can be maintained may need to be considered by the European Court. But it does not seem sensible to me that, in the meantime, there should be different views from different national courts which are given in relation to the same factual background and the same cartels, simply because the different defendants are of different domiciles.” [45-47]
That said, a level of ambiguity in the area remained. This can be deduced by the fact that the issue re-appeared before the English courts (e.g. Cooper Tire & Rubber Company v Shell Chemicals UK Limited [2009] EWHC 2609 (Comm); Cooper Tire & Rubber Company Europe Limited & Others [2010] EWCA Civ 864; Toshiba Carrier UK Ltd and Other v KME Yorkshire Limited & Others [2011] EWHC 2665 (Ch); Toshiba Carrier UK Ltd and Other v KME Yorkshire Limited & Others [2012] EWCA Civ 169.)