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It has been recently reported that the English Court of Appeal will hear a dispute over whether claimants seeking damages against tube cartelists can anchor their litigation in England through a British subsidiary of one of the cartelists. This being the case even though the British subsidiary of the cartelist was not an addressee of the European Commission’s antitrust decision (A3/2011/2816 Toshiba Carrier UK Ltd and Others -v- KME Yorkshire Limited & Ors.).
In 2003 the Commission fined an industrial tubes cartel a total amount of €79 million. Companies such as KM Europe and Wieland Werke were addressees of the Commission’s decision. Toshiba Carrier brought a claim in December 2009 against members of the cartel.
In the damages proceedings one of the cartel defendants (KME) tried to bring a strike out action against the Toshiba claim, by arguing that KME Yorkshire Ltd (its British subsidiary) was not party to the original Commission Decision. KME argued that Toshiba Carrier had used KME Yorkshire Ltd to anchor the case in England. Whereas last year the High Court ruled against KME’s attempts, the Court of Appeal will now hear the KME appeal as the Court believed the “question when and where members of an international multi-party cartel may properly be sued is a matter of great importance and concern.”
At first review, this case appears to have a number of similarities to two previous English Court decisions in Provimi  and Cooper Tire. Provimi appeared to establish that a subsidiary which had no knowledge of the cartel but implemented the cartel agreement and sold at the cartelised price could be liable for damages for breaching Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). The Court went on to assess that a European customer of the vitamins cartel could bring a claim in the English courts even if that customer did not purchase vitamins from the English subsidiary. One of the claimants (Trouw Germany) did not even buy the cartelised product from either of the cartelist’s UK subsidiaries (Roche UK or Rhodia Ltd). The court held however that it had jurisdiction to hear the claims as it was enough that sales had been made by other subsidiaries in the same group. As a result, “each entity would have contributed to a situation where it took part in the cartel, upheld prices and (arguably) caused loss” (Paragraph 38 of the Provimi judgment).
In Cooper Tire, the Court of Appeal stated that where the anchor defendants had no knowledge or awareness of each parent’s anti-competitive conduct then a reference to the CJEU would be likely in order to assess a subsidiary’s consequential liability. It appears from Cooper Tyre that claimants will need to provide evidence that each of the anchor defendants was party to (or aware of) their parents anti-competitive conduct.
Based on the two previous ‘anchor’ defendant English Court decisions, the Toshiba Carrier case may provide further clarification on the ability of a damages claimant to isolate a cartelists English subsidiary, who may not have even been party to the original cartel decision, to bring the action in the English Courts.
 Provimi v Aventis, Trouw UK v Rhodia, Provimi v Roche and Trouw UK v Roche  E.C.C 29 May 6 2003
 Cooper Tire & Rubber Co v Shell Chemicals UK Ltd  EWHC 2609
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