EUPillar Cooper Tire and Rubber Co Europe Ltd v Shell Chemicals UK Ltd [2009] EWHC 2609 (Comm)

Summary

There was a Commission decision (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) which established an infringement of EU competition law. The dispute was raising an issue of the cartel members’ liability towards the car tyre manufacturers. There were parallel proceedings. There was one sets of proceedings in Italy, Enichem brought a tactical claim for a non-liability declaration claiming that the cartel had no effect on the price of Butadiene Rubber (‘BR’) and Emulsion Styrene Butadiene Rubber (ESBR). In other words, the claimant in the Italian proceedings claimed that no damage was caused. To this end, Enichem commenced court proceedings against 28 defendants – tyre manufacturers - companies in the Pirelli, Michelin, Continental, Goodyear, Bridgestone and Cooper groups. (see [68] of the English High Court judgment). The English legal proceedings were commenced a few months later by 26 companies (only 4 of the claimants were English) of the same group of tyre manufacturers against 23 defendants, all of whom were producers and sellers of BR and ESBR. The claimants sought damages from the cartel members for EU competition law infringements. It should be noted that “[t]he Claimants in the English proceedings are in essence the same as the defendants in the Italian proceedings. There was no dispute that they could be regarded as the same parties. The difficulty arose with the Claimants in the Italian proceedings, Enichem, and the Defendants in the English proceedings, all the producers of BR and ESBR save Enichem. Debate was joined on the issue whether they were the same parties.” [69] In England, the defendants challenged the jurisdiction of the English court, and sought an application for stay of the proceedings under Arts 27 and/or 28. After carefully considering the degree of identify between the parties, and their interests, the judge held that Enichem and the defendants in England were not the same parties. Thus, the application for a mandatory stay under Article 27 of Brussels I was rejected. And so too was rejected the application for a stay under Article 28 of Brussels I. Mr Justice Teare stated: “111 […] It seems to me that a particularly good reason would be required to justify a stay in such circumstances [i.e. some defendants submitted to the jurisdiction and made no application for a stay] and the Defendants in question would surely be entitled to be heard on the question. I do not consider that there is such a reason in circumstances where the Italian Court has dismissed the proceedings before it and accordingly (a) the prospect of a decision on the merits in Italy is contingent upon a successful appeal in Italy and (b) the English Court will ultimately have to exercise its own jurisdiction.” 112 The stage reached in England is that the proceedings have been commenced and Particulars of Claim have been served. In Italy, the proceedings have been commenced but have been dismissed at first instance on jurisdictional and other grounds without consideration of the merits. The decision at first instance is now under appeal. If the appeal succeeds the Italian Court of Appeal will determine the merits. […] 114 […] It is agreed that a decision on the merits in Italy is not likely until September 2013-2014 […].”[111, 112 and 114] The refusal of the stay of legal proceedings was affirmed by the Court of Appeal.