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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Deutsche Bahn Ag & Ors v Morgan Crucible Company Plc & Ors  EWCA Civ 1055 (31 July 2012)
Cite as:  Bus LR 125,  WLR(D) 244,  EWCA Civ 1055
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ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
MR MARCUS SMITH QC (Chairman)
CAT 1173/5/7/10,  CAT 16
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE SULLIVAN
| DEUTSCHE BAHN AG & ORS
|- and -
|MORGAN CRUCIBLE COMPANY PLC & ORS
MR MARK BREALEY QC and MISS MARIE DEMETRIOU QC (instructed by Clifford Chance LLP) for the Respondents
Hearing date: 27th January 2012
Crown Copyright ©
Lord Justice Mummery:
"8. The right to bring a follow-on claim before the Tribunal does not affect the right of a person to bring the sort of proceedings in court that were already possible, so a party which considers itself to have been the victim of anti-competitive behaviour, and to have suffered loss as a result, has a choice: it may bring ordinary proceedings in the High Court (I speak only of England, even though the 1998 Act applies throughout the UK), or, if a relevant regulator has held there to have been an infringement, it may bring proceedings in the Tribunal. If it proceeds in court, it can allege, and must prove, whatever infringements it wishes to rely on as having caused loss. If a regulator has found there to have been an infringement, before or during the course of the proceedings, it will have the benefit of section 58 under which it can rely on the regulator's findings of fact. On the other hand, it may proceed in the Tribunal, in which case it is limited to the infringements found by the regulator, but the question of infringement is concluded by the regulator's decision, leaving only the issues of causation and quantification of loss to be decided by the Tribunal."
Background facts: key dates
Legal framework: s.47A and 2003 Rules
"63. Where a number of similar individual decisions imposing fines have been adopted pursuant to a common procedure and only some addressees have taken legal action against the decisions concerning them and obtained their annulment, the principle of legal certainty underlying the explanations set forth in paragraphs 57 to 62 above therefore precludes any necessity for the institution which adopted the decision to re-examine, at the request of other addressees, in the light of the grounds of the annulling judgment, the legality of the unchallenged decisions and to determine, on the basis of that examination, whether the fines paid must be refunded."
The Tribunal judgment
"41. In short, it is our clear conclusion that "decision" must mean that specific part of the dispositif that makes a decision as regards a particular addressee. The point can be tested quite easily; suppose a decision addressed to A and to B, finding that party A has infringed Article 101 TFEU, but that party B has not. Clearly, no claim under section 47A can be brought against party B; but, equally, such a claim could be made against party A. Similarly, party A would be entitled to appeal against the decision made against it, but not as regards the decision in relation to party B. Thus, looking at section 47A(8), it seems to us that what is being referred to is a decision against a particular party.
" 37. Our unanimous conclusion is that "decision" in section 47A is used in its narrow sense. This is plainly how the Court of Appeal considered the term in BCL Old Co. Central to the Court of Appeal's decision was the distinction between a decision relating to infringement and a decision relating to the imposition of a penalty. Such a distinction can only be drawn if the term is used in its narrow sense. Suppose, in the case of the 3 December 2003 Decision, all of the addressees had chosen to challenge only the penalties imposed by the decision, and not the question of infringement itself. If the term "decision" in section 47A(8) were used in its wide sense, then it is plain that there would be "proceedings against the decision" inconsistent with the decision of the Court of Appeal in BCL Old Co. The decision in BCL Old Co only works if the wide meaning of "decision" is abandoned, and the narrow meaning of the terms adopted. On this approach, it is possible to examine the nature of the proceedings against the decision, determine whether or not they relate to infringement or penalty, and so determine whether or not the period defined in section 47A(8)(b) has been triggered.
38. The use of the term "decision" in its narrow sense is also consistent with the decision in Emerson 4. As we noted in paragraph 28 above, the Tribunal in Emerson 4 considered that such decisions as were made in the 3 December 2003 Decision were contained in the operative part, and that the recitals did not contain decisions in the narrow sense. Section 47A(9) states that "the Tribunal is bound by any decision mentioned in subsection (6)." Were "decision" to be given its wide meaning, then not only would the operative part of a decision (in the wide sense) be binding, but so too would each and every recital in that instrument. The Tribunal in Emerson 4 considered that decisions should be contained in the operative part, and that necessarily requires the term "decision" to be read in its narrow sense.
39. This approach is also consistent with the decision of the Court of Justice in AssiDoman Kraft Products. We should point out that we attach a little less weight to this decision than we do to the decisions in BCL Old Co and in Emerson 4. This is because-naturally-the Court of Justice was considering only one form of instrument, a decision under Article 288 (1) TFEU, whereas the 1998 Act in general, and section 47A in particular, is concerned with decisions not only issued by the Commission, but also by the OFT and this Tribunal (as the decision in BCL Old Co makes very clear.) In other words, whilst section 47A refers to Commission decisions, this is not the only type of decision referred to. Nevertheless, the analysis in AssiDoman Kraft Products is extremely clear and persuasive in its analysis of what a "decision" is. The point clearly made is that whereas the instrument may, or may not, be labelled or entitled a "Decision", in reality such an instrument contains a bundle of different decisions, each to different effect and each quite possibly directed to a different person. Although, as we have noted, the term "decision" is an ambiguous one, when one is talking about a legal act, with legal consequences and effects, the narrow meaning of the term is much more the natural one.
40. It is, of course, possible that the term "decision " in section 47A refers, not to the entire instrument (that is, the decision in the wide sense), but to all decisions (in the narrow sense) contained in the operative part or dispositif, irrespective of addressee. In other words, the dispositif is (irrespective of how many individual decisions in the narrow sense it contains) to be regarded as a single decision. Such a conclusion would be sufficient to enable the Claimants successfully to resist Morgan Crucible's application, and would be consistent with the Tribunal's decision in Emerson 4. However, we consider this approach both inconsistent with authority and unrealistic:
(1) In the first place, for the reasons we have given, it is not consistent either with the approach of the Court of Appeal in BCL Old Co, nor with the approach of the Court of Justice in AssiDoman Kraft Products.
(2) Secondly, we consider that it represents an entirely unrealistic approach to the construction of the operative part of a decision. Take, by way of example, Article 1 of the 3 December 2003 Decision, quoted in paragraph 24 above. The natural construction of Article 1 is that it contains seven discrete decisions, namely that each of the addressees there listed infringed what is now Article 101(1) TFEU for the periods there stated. A fortiori, it is an unnatural reading to suggest that the six separate fines imposed on seven distinct companies (Schunk and Schunk Kohlenstoffechnik were given a single fine, for which they were jointly and severally liable) comprise only one decision. This is consistent with notions of personal responsibility."
"57. We see no difference between the case of a non-appealing addressee seeking to take the benefit of another addressee's successful appeal in order to avoid a penalty he is exposed to, and the case of a non-appealing addressee seeking to take the benefit of another addressee's successful appeal in order to avoid a section 47A claim."
(1) BCL Old
"28. …The purpose is that the decision which is to bind the tribunal should be definitive before a claim can be brought without permission. A decision establishing an infringement, unless itself the subject of an appeal, will be binding on the tribunal irrespective of what may be said about the infringement in the context of an appeal against penalty."
Discussion and conclusion
(1)Objective and scheme of s. 47A
(2)Natural and ordinary meaning of s. 47A
Lord Justice Etherton:
Lord Justice Sullivan: