EUPillar Toshiba Carrier UK Ltd and Others v KME Yorkshire Limited and Others [2012] EWCA Civ 1190

Summary

There was an infringement of EU competition law. This was established by a decision of the European Commission. Those named (as infringing undertakings and) as legal entities in the Commission’s decision included KM Europa Metal AG, Trefimetaux SA and Europa Metalli SpA (i.e. companies in the KME group), Wieland-Werke AG (a company in the Wieland-Werke group) and Outokumpu Oyj (a company in the Outokumpu group). In the private enforcement proceedings, the claimants sought damages against the defendants. The defendants were involved in anti-competitive agreements and concerted practices consisting of price fixing and market sharing in the industrial tubes sector. None of the companies, which had been named in the European Commission decision, was domiciled in England. The claimants, invoking Article 6(1) of Brussels I, decided to bring their actions in England against UK-domiciled anchor defendants, KME Yorkshire (a company in the KME group) as well as against Nemco and WW (UK) (companies in the Wieland-Werke group). None of the anchor defendants was mentioned in the European Commission’s decision. The defendants challenged the jurisdiction of the English court, trying to strike out the claims against the anchor defendants. The jurisdictional challenge was dismissed by the English High Court. The Chancellor of the High Court held that the claimants were entitled to rely on Article 6(1) with a view to establishing jurisdiction against the non-UK domiciled defendants, stating: “41 […] The amended particulars of claim were apt to raise both a follow-on and a stand alone claim. The initial failure to plead knowledge has been remedied by the information subsequently provided and is not a good reason to exercise the powers conferred by CPR Rule 3.4(2)(a) summarily to strike out the claim. 42. I am required to follow a decision of a judge of co-ordinate jurisdiction unless I am convinced that it is wrong. The decisions of Aikens and Teare JJ are, in this court, those of judges of co-ordinate jurisdiction. Whatever view I might have taken uninstructed by the views of the Court of Appeal in Cooper Tire it is clear from what that Court said in paragraph 45 of its judgment quoted in paragraph 30 above that I cannot conclude that the decisions of Aikens and Teare JJ are plainly wrong. 43. I have, of course, noted and carefully considered what the Court of Appeal there said about making a reference to the Court of the European Union. In my view it would not be appropriate to make a reference at this stage. First, the point will not arise unless and until the allegation of knowledge is not established at the trial. Second, it is usually better to withhold a reference until the facts have been found lest the Court of the European Union be troubled by points which are academic and therefore not necessary for the decision of the national court.” Toshiba Carrier EWHC, [42-43] The decision was affirmed by the Court of Appeal. Lord Justice Tomlinson held that: “37 The Provimi point does not arise in the present case because, for the reasons I have given, the respondents have made a stand-alone claim against KME UK clearly alleging that it participated in, and implemented, the cartel arrangements with knowledge of the cartel agreement. Mr Turner accepts that the respondents must prove KME UK's knowledge of the cartel agreement and practices. Since the point was argued, however, I will express my own view that it is clear that, save in a case where the parent company exercises “a decisive influence” (in the language of EU jurisprudence) over its subsidiary or the same is true of a non-parent member of the group over another member, there is no scope for imputation of knowledge, intent or unlawful conduct.” [37].