BCL Old Company Ltd v BASF SE
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Lloyd,Lord Justice Waller |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWCA Civ 434 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 2009 |
| Docket Number | Case No: C1/2008/2606 |
[2009] EWCA Civ 434
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
(Mr Justice Barling, Ms Ann Kelly and Mr Michael Davey)
Before: Lord Justice Waller
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Lloyd and
Lord Justice Richards
Case No: C1/2008/2606
Mark Brealey QC (instructed by Mayer Brown International LLP) for the Appellants
Aidan Robertson QC (instructed by Taylor Vinters) for the Respondents
Hearing date: 22 April 2009
Lord Justice Richards:
Section 47A of the Competition Act 1998 (“the 1998 Act”) enables a person who has suffered loss as a result of the infringement of EC or UK competition rules to bring a claim before the Competition Appeal Tribunal (“the tribunal”) in reliance on a decision of the EC or UK competition authority establishing the infringement in question. There is a two year time limit for bringing such a claim. An appeal against the decision postpones the date from which time runs for that purpose. The issue in this case is whether the date is postponed where there is an appeal against penalty but not against the finding of infringement. The answer depends on a short point of construction of section 47A, though the section itself is far from short.
The case arises out of an investigation by the European Commission into a cartel in respect of vitamins for use in animal feedstuffs, culminating in “Commission Decision of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 – Vitamins)” (“the Decision”). The Decision was summarised in a short press release issued by the Commission on the same date but a full version was not generally available until 10 January 2003, when it was published in the Official Journal of the European Communities.
The operative part of the Decision included the following:
“Article 1
1. The following undertakings have infringed Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement:
…
(b) BASF AG by participating in agreements affecting the Community and EEA markets for vitamins A, E, B1, B2, B5, C, D3, H, beta-carotene and carotinoids ….
Article 2
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article, in so far as they have not already done so ….
Article 3
For the infringements referred to in Article 1, the following fines are imposed on the following undertakings:
…
(b) BASF AG ….”
BASF brought an application to the Court of First Instance of the European Communities (“the CFI”), claiming that the court should “annul or substantially reduce the fine imposed on BASF pursuant to Article 3(b) of the Decision”. Notice of the application was published in the Official Journal on 4 May 2002. By judgment of 15 March 2006 in Case T-15/02 BASF AG v Commission [2006] ECR II-497, the CFI reduced the fine imposed on BASF.
On 13 March 2008, that is just under two years after the date of the CFI's judgment, the claimants in these proceedings (the respondents to the present appeal) brought a claim in the tribunal under section 47A of the 1998 Act against BASF and two of its associated companies, relying on the Decision and alleging that they had suffered loss and damage as a result of the infringement of Article 81(1) by BASF. They had previously brought claims under section 47A against two other companies found by the Commission to have participated in the cartel, but those claims were withdrawn on agreed terms.
In their defence to the claim, BASF and its associated companies argued that the claim against them was time-barred. On a preliminary issue, the tribunal rejected that argument. Permission to appeal against the tribunal's decision was granted by Jacob LJ.
The relevant legislation
Section 47A reads as follows:
“47A.(1) This section applies to –
(a) any claim for damages, or
(b) any other claim for a sum of money,
which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom.
(2) In this section 'relevant prohibition' means any of the following —
(a) the Chapter I prohibition;
(b) the Chapter II prohibition;
(c) the prohibition in Article 81(1) of the Treaty;
(d) the prohibition in Article 82 of the Treaty …
(3) For the purpose of identifying claims which may be made in civil proceedings, any limitation rules that would apply in such proceedings are to be disregarded.
(4) A claim to which this section applies may (subject to the provisions of this Act and Tribunal rules) be made in proceedings brought before the Tribunal.
(5) But no claim may be made in such proceedings –
(a) until a decision mentioned in subsection (6) has established that the relevant prohibition in question has been infringed; and
(b) otherwise than with the permission of the Tribunal, during any period specified in subsection ( 7) or (8) which relates to that decision.
(6) The decisions which may be relied on for the purposes of proceedings under this section are –
(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
(b) a decision of the OFT that the prohibition in Article 81(1) of Article 82 of the Treaty has been infringed;
(c) a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition, the Chapter II prohibition or the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(d) a decision of the European Commission that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(e) a decision of the European Commission that the prohibition in Article 65(1) of the Treaty establishing the European Coal and Steel Community has been infringed, or a finding made by the European Commission under Article 66(7) of that Treaty.
(7) The periods during which proceedings in respect of a claim made in reliance on a decision mentioned in subsection (6)(a), (b) or (c) may not be brought without permission are –
(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or section 47;
(b) in the case of a decision of the OFT which is the subject of an appeal mentioned in paragraph (a), the period following the decision of the Tribunal on the appeal during which a further appeal may be made under section 49;
(c) in the case of a decision of the Tribunal mentioned in subsection (6)(c), the period during which a further appeal may be made under section 49;
(d) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the House of Lords from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b), (c) or (d) is made, the period specified in that paragraph includes the period before the appeal is determined.
(8) The periods during which proceedings in respect of a claim made in reliance on a decision or finding of the European Commission may not be brought without permission are —
(a) the period during which proceedings against the decision or finding may be instituted in the European Court; or
(b) if any such proceedings are instituted, the period before those proceedings are determined.
(9) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed.
(10) The right to make a claim to which this section applies in proceedings before the Tribunal does not affect the right to bring any other proceedings in respect of the claim.”
In the present case the claim is brought under subsection (4) in reliance on a decision of the European Commission within subsection (6)(a). The relevant subsection for determining the period during which a claim cannot be brought without permission is therefore subsection (8). For the purposes of construction, however, that subsection has to be read with the rest of the section.
The time limit for making a claim is contained in rule 31 of the Competition Appeal Tribunal Rules 2003 (“the Tribunal Rules”):
“31.(1) A claim for damages must be made within a period of two years beginning with the relevant date.
(2) The relevant date for the purposes of paragraph (1) is the later of the following —
(a) the end of the period specified in section 47A( 7) or (8) of the 1998 Act in relation to the decision on the basis of which the claim is made;
(b) the date on which the cause of action accrued.
(3) The Tribunal may give its permission for a claim to be made before the end of the period referred to in paragraph 2(a) after taking into account any observations of a proposed defendant ….”
Thus the rule refers back to section 47A(7) and (8), and it is by this route that the running of time in the present case depends upon the correct construction of section 47A(8).
I should also mention that by rule 19(2)(i), as part of its general case management powers, the tribunal has power to extend any time limit, so that failure to apply within the two year time limit laid down by rule 31 is not necessarily fatal to the bringing of a claim under section 47A.
The tribunal considered that...
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