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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Emerson Electric Co & Ors v Mersen UK Portslade Ltd & Anor [2012] EWCA Civ 1559 (28 November 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1559.html Cite as: [2013] Bus LR 342, [2012] EWCA Civ 1559, [2012] WLR(D) 354 |
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ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
THE HON MR JUSTICE BARLING (President)
Claim No: CAT 1077/5/7/07
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOORE-BICK
and
LADY JUSTICE BLACK
____________________
EMERSON ELECTRIC Co & ORS |
Appellants |
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- and - |
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MERSEN UK PORTSLADE LTD ( sued as and formerly LE CARBONE (GREAT BRITAIN) LTD) |
Respondent |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR DANIEL BEARD QC (instructed by Hogan Lovells International LLP) for the Respondent/6th defendant.
Hearing date: 8th March 2012
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Crown Copyright ©
Lord Justice Mummery:
Follow-on claims in general
Introduction to the issues and the grounds of appeal
Deutsche Bahn case
"In the course of argument Mr Turner [leading counsel for the claimants] reminded the Tribunal that the essential question is whether there is "a decision of the European Commission that …[Article 101] has been infringed" within the meaning of subsection 47A(6)(d) of the Act. That is undoubtedly correct. In his oral argument Mr Turner made clear that his primary contention was that in the present case the operative part of the Decision, properly understood in the light of the reasoning, contains the finding of infringement necessary to found the Tribunal's jurisdiction against Carbone GB. However, he reserved the right to argue, if the facts supported it, that even a finding contained in the reasoning alone and not reflected in the operative part, would be sufficient for the purposes of the UK statute. Although he did not put it in these terms, there may be an implication in his reserved argument and also possibly in his main argument, that a finding of the Commission which was without any legal effect as a matter of EU law could nevertheless satisfy the Act and provide the basis for a claim under section 47A."
The parties, the claims and the proceedings
The Tribunal judgment
"47…The fact that the Commission has a discretion whether to address an infringement decision to one, or some, or all of the legal persons who arguably make up an infringing "undertaking" begs the question whether, when that discretion is exercised by making some but not all such candidates addressees, there can be any legal effects on those who are omitted from the operative part. Neither the recitals in the Cartonboard cartel decision, nor the judgment in MoDo on the appeal from it, seem to us to provide the answer to that question for which the claimants contend. Nor do they alter the fact that in that case the decision was addressed to one specific company (the parent) which in the operative part of the decision was the only company in the group found to have infringed, the only company on which fines were imposed, and the only company subjected to the "cease and desist" order. In recital 141 (above), when discussing civil enforcement proceedings in the national courts to recover fines, the Commission clearly envisaged such proceedings being brought only against the addressee. Neither the Commission nor the General Court suggested that any other company in the group was bound by the decision in any way whatsoever. It is difficult to see how such a suggestion could be reconciled with the judgment in the ECJ in Suiker Unie or with those of the General Court in Adriatica and Dutch Bitumen."[Those authorities are cited in the concluding part of this judgment].
Submissions of Emerson
Finding of infringement by Carbone GB in Decision ("the finding point".)
" In proceedings for the application of Article 81 or Article 82 of the Treaty,[Article 101 or 102 TFEU] courts of the Member States may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of the Community competition rules."
Carbone GB as part of the named parent infringing undertaking Carbone SA ("the undertaking point")
Jurisdiction of Tribunal
Submissions of Carbone GB
No finding in Decision of infringement by Carbone GB
Carbone GB not an addressee of Decision
Article 15
Discussion and conclusions
"…Community competition law recognises that different companies belonging to the same group form an economic unit and therefore an undertaking within the meaning of Articles 81 and 82 EC [Article 101 and 102 TFEU] if the companies concerned do not determine independently their own conduct on the market.."
"Several companies in the same group, acting under the same management and control, may be considered to be part of the same undertaking. In that regard the Commission has a discretion in determining the level of such a structure to which it is most appropriate to address a decision…"
"…it is in the operative part of a decision that the Commission must indicate the nature and extent of the infringements which it sanctions. It should be noted that, in principle, as regards in particular the scope and nature of the infringements sanctioned, it is the operative part, rather than the statement of reasons, that is important. Only where there is a lack of clarity in the terms used in the operative part should reference be made, for the purposes of interpretation, to the statement of reasons contained in a decision. As the Court of Justice has already held, for the purpose of determining the persons to whom a decision, which finds that there has been an infringement, applies, only the operative part of the decision must be considered, provided that it is not open to more than one interpretation…" [See also [315] Cooperatieve Vereniging 'Suiker Unie' UA &Ors v. Commission Cases 40-48/73 etc [1975] ECR 1668.]
Result
(1) The Decision is binding on the Tribunal on matters of infringement.
(2) The name of Carbone GB was not in the list of addressees of the Decision.
(3) The Decision contained no finding that a relevant prohibition of competition law had been infringed by Carbone GB.
(4) No request to the Commission for additional information or for an opinion could have resulted in such a finding.
(5) The Tribunal has no jurisdiction to contradict or amend the Decision by making its own findings of fact on liability or by adding to the list of addressees a name that the Commission did not include in its list.
(6) The Tribunal had no jurisdiction to determine the s.47A claims against Carbone GB since they were not based on the Decision.
(7) The fact that Carbone GB was a wholly owned subsidiary of Carbone SA, an addressee undertaking by which a prohibition had been infringed, did not mean that a prohibition in competition law had been infringed by Carbone GB.
(8) The Tribunal was entitled to strike out the follow-on claims against Carbone GB on the basis that there was no reasonable ground for making them.
Lord Justice Moore-Bick:
Lady Justice Black: