International cartels: when can you sue in England?
On 13 September 2012, the Court of Appeal handed down judgment in Toshiba Carrier v KME Yorkshire Limited and others. The Court revisited the vexed question addressed previously in Cooper Tire and Provimi as to circumstances in which a damages claim may be brought in the English courts where there are no English addresses of a Commission Decision on which the action depends. The issue was whether implementation by English “anchor defendants” of an unlawful anti-competitive agreement reached between others is enough to found an action, even if the implementation is without knowledge of the agreement.
The Court held that acts of implementation alone are capable of amounting to concerted practices where they are carried out pursuant to an anti-competitive agreement made between others and with knowledge of that agreement. The Court held that the claimants had sufficiently pleaded such a stand alone claim for conducting concerted practices contrary to Article 101. However, the Court also indicated (although it was not necessary to reach a conclusion on this point) that, save in a case where the parent company exercises “a decisive influence” over its subsidiary, there is no scope for imputation of knowledge, intent or unlawful conduct.
Jon Turner QC acted for the Claimants.
Daniel Beard QC acted for the KME Defendants.
Kassie Smith acted for the Outokumpu Defendant.
Click to read the judgment in Toshiba v KME Yorkshire Ltd