Deutsche Bahn AG & Ors v Morgan Advanced Materials Plc & Ors

13 Dec 2013

On 3 December 2003 the European Commission issued a decision (the “Decision”) in which it found that the seven addressees had been involved in a cartel in relation to electrical and mechanical carbon and graphite products in breach of Article 81(1), now Article 101 (1), of the Treaty on the Functioning of the European Union (“TFEU”). Thirty Claimants, including Deutsche Bahn AG, brought ‘follow on’ damages claims in the Competition Appeal Tribunal(the “CAT”) under section 47A of the Competition Act 1998 against six defendants. The First Defendant, Morgan Advanced Materials plc (“Morgan”), was the only defendant domiciled in England. All of the Claimants asserted that the CAT had jurisdiction to hear the claims pursuant to Article 6(1) of Council Regulation EC 44/2001 (“Rome I”) relying on the fact that Morgan was domiciled in England and constituted an ‘anchor defendant’. Morgan sought to have the claim against it struck out on the basis that the claim had been brought out of time. Morgan was successful before the CAT, unsuccessful before the Court of Appeal and the matter is now on appeal to the Supreme Court with a hearing date listed for 11 and 12 March 2014. If Morgan were to win its appeal to the Supreme Court the Claimants would not be able to rely on Article 6(1) of Rome I to found jurisdiction against the Second to Sixth Defendants. In light of Morgan’s challenge to the claim against it, and the impact it could potentially have on the founding of jurisdiction in relation to the claims against the other. Defendants, a stay was imposed by the CAT in relation to all the claims. On 15 August 2013 the CAT lifted the stay in relation to the claims made by the Thirteenth to Seventeenth Claimants, who were based in the United Kingdom (the “UK Claimants”), against the Second to Sixth Defendants (the “UK Claims”). The CAT lifted the stay on the basis that it had jurisdiction over the UK Claims, irrespective of the outcome of Morgan’s appeal, by virtue of Article 5(3) of Rome I. The Second to Sixth Defendants applied for permission to appeal to the Court of Appeal against this decision.