Deutsche Bahn Ag & Ors v Morgan Crucible Company Plc & Ors

For follow-on damages claims in the Competition Appeal Tribunal, the “decision” under section 47A(6)(d) and (8) of the Competition Act 1998 is the regulatory decision that the relevant prohibition has been infringed. In a decision finding a single and continuous infringement, the limitation trigger is not split by addressee. Appeals against the infringement finding by other cartel participants defer the start of the two-year period for claims against a non-appealing participant. An appeal confined to penalties does not have that effect. The provision is domestic procedural law: EU law establishes the infringement, while the Tribunal determines causation, quantum and limitation under domestic law.

The claimants brought follow-on damages proceedings against Morgan and other addressees of a European Commission decision finding a single and continuous price-fixing cartel infringement. Morgan did not appeal, and its appeal period expired on 13 February 2004. Other addressees appealed against infringement and penalties, with those appeals being resolved later. The claimants filed their claims in the Competition Appeal Tribunal on 15 December 2010.

The Tribunal accepted Morgan’s construction of section 47A of the Competition Act 1998 and Rule 31 of the Competition Appeal Tribunal Rules 2003, holding that the two-year period began when Morgan’s own appeal period expired. The central issue was whether the statutory “decision” was individual to Morgan or the common infringement decision, and whether appeals by other addressees deferred limitation for all claims.

1. Appeal allowed. The claims against Morgan were not out of time. The strike-out decision was set aside, allowing the claimants to proceed against Morgan and the other defendants.
2. Section 47A of the Competition Act 1998 is domestic procedural law governing private damages claims in the Tribunal. The Commission’s decision establishes the infringement and binds the Tribunal on liability, but causation, quantum and limitation remain matters for the Tribunal under domestic law.
3. The statutory reference to “decision” in section 47A(6)(d) and (8) means the decision that the relevant prohibition has been infringed and that an infringement situation exists. It does not mean only a discrete infringement decision addressed to an individual undertaking. The finding of a single and continuous infringement is logically prior to the allocation of responsibility to particular addressees and the imposition of individual penalties.
4. Where a Commission decision concerns a single and continuous infringement involving several addressees, an appeal by any addressee against the infringement finding defers the limitation trigger for follow-on claims against all addressees, including a non-appealing addressee, until the appeal process is complete. An appeal confined to a penalty or its amount does not have that effect, consistently with BCL Old Co Ltd v BASF SE [2009] EWCA Civ 434.
5. The approach was consistent with the explanation of follow-on proceedings in Enron Coal Services Ltd v English Welsh and Scottish Railway Ltd [2011] EWCA Civ 2. The individual-decision reasoning in Commission v AssiDoman Kraft Products & Ors [1999] ECR I-5363 concerned EU public-law fines and did not govern the domestic limitation regime.
6. The practical consequences also favoured postponing proceedings until the common infringement question had been finally determined, enabling causation, quantum and contribution to be addressed coherently.

• Court of Appeal (Civil Division): The appeal was allowed. The Court held that the claims against Morgan were brought within time under section 47A of the Competition Act 1998.
• Competition Appeal Tribunal: In its judgment of 25 May 2011 in CAT 1173/5/7/10, the Tribunal accepted Morgan’s construction of section 47A, held that the claims against Morgan were out of time and ordered their strike-out.