Iiyama Benelux BV & Ors v Schott AG & Ors

For summary judgment and service-out purposes, a claimant must show a realistic, sufficiently arguable case. The court may decide a legal or construction issue without a trial where the evidence and arguments are adequate.

A cartel formed outside the EEA infringes Article 101 only where it has a sufficient territorial connection with the EEA. The implementation test requires implementation in the EEA, ordinarily through direct sales there by cartel participants. Alternatively, assuming a qualified-effects test, the effect must be immediate, substantial and foreseeable. A remote downstream pricing effect is a knock-on effect and is not immediate.

Particulars of claim define the case advanced. A claimant cannot use the claim form or speculation in argument to enlarge an unpleaded follow-on claim.

The claimants, sellers of computer monitors, sought damages under Article 101 TFEU arising from European Commission decisions concerning cartels in CRT glass and colour display tubes. The defendants applied for summary judgment or strike-out, and some sought to set aside permission to serve outside the jurisdiction.

The pleaded case was treated as a follow-on claim based on the Commission findings. The supply-chain evidence showed that the cartelised glass and tubes were sold outside the EEA, incorporated into monitors outside the EEA, and only later sold to the claimants in the EEA by non-cartelists. The central issues were the scope of the pleaded claim, the territorial reach of Article 101, and alleged non-disclosure on the service-out applications.

1. Applicable threshold. The court adopted the approach in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch): the claimant must have a realistic rather than fanciful prospect of success; the court must avoid a mini-trial, but may determine a legal or construction issue where the necessary material is available. The same approach applied to whether there was a sufficiently arguable case for service out.
2. Nature of the pleading. The Particulars of Claim were a follow-on claim founded on the Commission decisions and their binding findings. Particulars of claim set out the case relied on under CPR 16.4(1)(a); the claimants could not rely on the claim form to enlarge that case. The alleged wider global-cartel case was unavailable against the glass defendants and, in any event, was not properly pleaded.
3. Commission decisions. The CRT Glass decision established an EEA cartel concerning sales by cartelists into the EEA. The CRT decision established a worldwide cartel, but its Article 101 infringement finding concerned implementation through direct EEA sales or direct EEA sales through transformed products. Recital 1020(c), situated in the remedies and fining section, did not extend the infringement finding to upstream sales outside the EEA to non-EEA customers.
4. Territoriality. Applying Ahlstrom Osakeyhtio v The Commission (Woodpulp) [1988] ECR 5193, the decisive factor was where the cartel was implemented. The claimants’ assumed facts showed implementation outside the EEA, followed by downstream sales into the EEA by non-cartelists. The eventual effect on European prices was too remote.
5. Qualified effects. Assuming that Gencor supplied an alternative test, the effect had to be immediate, substantial and foreseeable. The alleged European pricing consequence was a knock-on effect, not an immediate effect. The qualified-effects test therefore did not provide a sufficient territorial connection.
6. Disposition. The defendants were entitled to summary judgment or strike-out, or to have service out set aside for absence of a good arguable case. Permission and service out were also set aside because serious non-disclosure went to jurisdiction and misdescribed the claim. The defendants’ forum argument did not require determination.

First-instance decision. The judgment itself does not state any prior appellate decision.