Bord NA Mona Horticulture Ltd & Anor v British Polythene Industries Plc & Ors

On applications to strike out or obtain summary judgment in cartel-damages claims, the court should not decide that a claim is bound to fail where further evidence and disclosure may materially affect the issues. Pleadings may receive a more generous ambit where the alleged cartel is clandestine and relevant evidence is largely within the defendants’ knowledge.

A Commission decision identifying infringement in particular markets does not necessarily preclude a claimant from relying on further evidence of infringement in other markets, or of effects in neighbouring markets, unless the proposed case contradicts the decision. Under Article 101 TFEU, anti-competitive object and effect are alternative, not cumulative, conditions. An anti-competitive effect in a neighbouring market may therefore be arguable without proof that the cartel operated in that market.

The claimants, Irish companies purchasing industrial bags, relied on a European Commission decision finding that several defendants had participated in a cartel contrary to Article 81 EC, now Article 101 TFEU. They advanced follow-on, hybrid and stand-alone claims concerning purchases in continental markets and alleged effects or collusive activity in the United Kingdom and Ireland.

BPI applied to strike out the claim or obtain summary judgment, contending that the Commission decision confined the infringement to Germany, France, Spain and the Benelux. Combipac applied to set aside service, arguing that jurisdiction depended on the claim against BPI. The central issues were whether the pleaded claims contradicted the Commission decision and whether jurisdiction existed under Articles 6(1) or 5(3) of Regulation No 44/2001.

1. BPI application. The application to strike out or obtain summary judgment was dismissed. The court applied the principle that strike out is inappropriate unless the claim is certain to fail, and that summary judgment should not involve a mini-trial where fuller investigation may alter the evidence. The clandestine nature of cartel activity justified a generous approach to pleading before disclosure.
2. The Commission decision found continuing anti-competitive practices affecting the German, French, Spanish and Benelux markets on the evidence available to it. It did not decide exhaustively that infringement was confined to those markets. Article 16 of Modernisation Regulation No 1/2003 therefore did not prevent the claimants from adducing further evidence of activity in the United Kingdom and Ireland or of spill-over effects there.
3. The pleaded assertion that the Commission had found the relevant market to be the European Union was unsustainable and had to be removed or amended. Subject to that qualification, the follow-on, hybrid and stand-alone claims were arguable and had a real prospect of success.
4. Article 101’s reference to conduct having an anti-competitive object or effect is disjunctive. A claimant could therefore seek to establish that a cartel directed at one market had an anti-competitive effect in a neighbouring market without proving that the cartel operated or involved an agreement in that neighbouring market.
5. Combipac application. The application to set aside service was dismissed. BPI was an anchor defendant against which there was a serious issue to be tried, and the claims were sufficiently closely connected for Article 6(1) of Regulation No 44/2001 to apply. The court expressed doubt that Article 5(3) alone would confer English jurisdiction, since the harmful event was difficult to localise and the claimants’ centre of interests was Ireland.