Media-Saturn Holding GmbH & Others v Toshiba Information Systems (U.K.) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Barling |
| Judgment Date | 02 May 2019 |
| Neutral Citation | [2019] EWHC 1095 (Ch) |
| Court | Chancery Division |
| Date | 02 May 2019 |
| Docket Number | Case No's: HC 2017-001043 CP-2018-000004 |
[2019] EWHC 1095 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPETITION LIST (ChD)
Rolls Buildings
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Barling
Case No's: HC 2017-001043 CP-2018-000004
Kieron Beal QC and Flora Robertson (instructed by Mishcon De Reya) for the Claimants
Tony Singla (instructed by White & Case LLP) for the Toshiba Defendants
Sarah Abram (instructed by Morrison & Foerster LLP) for the Panasonic Defendants
Hearing dates: 6 – 9 November 2018
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INDEX
| HEADING | PAGE NO. |
| Introduction | 10 |
| The Decision and subsequent appeals to the General Court and CJEU | 11 |
| The several applications and the witness statements in support | 12 |
| Corporate structure and roles of relevant companies | 13 |
| TC | 14 |
| TIS | 14 |
| TEEG | 15 |
| TEG | 15 |
| PC | 15 |
| PE | 16 |
| PME | 17 |
| PI | 18 |
| Panasonic national sales companies | 18 |
| MTPD | 19 |
| The nature of the EU law claims | 19 |
| The nature of the economic tort claims | 20 |
| The strike out/summary judgment applications | 20 |
| The applications | 20 |
| Principles governing a strike out/summary judgment application | 21 |
| Application of principles to competition claims — information asymmetry | 22 |
| No pleading points taken | 23 |
| The Attribution Grounds | 24 |
| Issues common to TIS and PE | 25 |
| (i) Quality of knowledge of the infringing activity | 26 |
| (ii) What constitutes “participation”? | 27 |
| (iii) Can conduct other than sale of the cartelised product to third parties (e.g. intra-group sales or sales of transformed products) amount to “implementation”? | 28 |
| Should the EU law claim against TIS be struck out? | 30 |
| The “factual” case against TIS | 30 |
| (i) The parties' respective positions | 30 |
| (ii) TIS's role | 31 |
| (iii) Did TIS's activities arguably amount to “implementing”? | 32 |
| (iv) TIS's knowledge: relevance of TC's awareness of the cartel | 32 |
| Conclusion on TIS's strike out application: the factual case | 33 |
| The Provimi Ground | 34 |
| (i) The Claimants' Provimi argument | 34 |
| (ii) Is it arguable that TC was aware of the cartel? | 34 |
| (iii) Can TC's knowledge/liability be attributed to TIS under Provimi? | 35 |
| Summary of TIS's submissions | 35 |
| The case law | 36 |
| Conclusion on Provimi Ground | 41 |
| The shadow/de facto director argument against TIS | 42 |
| The issue | 42 |
| The legal principles | 43 |
| The Claimants' argument | 44 |
| TIS's submissions | 44 |
| Conclusion on shadow/de facto director proposed amendment — TIS | 45 |
| Should the EU law claim against PE be struck out? | 46 |
| Preliminary observations | 46 |
| The role of PE | 46 |
| The claim against PE | 49 |
| PE's submissions | 50 |
| Conclusions on arguability of EU law case against PE | 53 |
| The shadow/de facto director argument against PE | 55 |
| Conclusions: strike out applications against TIS and PE on EU law claims | 56 |
| Should the economic tort claims against TIS be struck out? | 56 |
| Introduction | 56 |
| The legal principles | 57 |
| (i) Conspiracy to injure by unlawful means | 57 |
| (ii) Unlawful interference with business | 60 |
| TIS's submission | 61 |
| The intention issue: TIS | 61 |
| Conclusion on the intention issue: TIS | 64 |
| The additional issues relating to unlawful interference: TIS/PE | 64 |
| Should the economic tort claims against PE be struck out? | 66 |
| The intention issue: PE | 66 |
| Conclusion on the intention issue: PE | 67 |
| PME's and PI's challenge to the jurisdiction | 67 |
| Introduction | 67 |
| Claims not foreseeable and/or for “sole purpose” of removing PME/PI | 68 |
| Legal principles | 68 |
| Foreseeability of being sued in England | 70 |
| The “sole purpose” point | 72 |
| Prospects of success against PME and PI | 73 |
| EU law claim against PI | 74 |
| EU law claim against PME | 74 |
| Economic tort claims against PME and PI | 75 |
| Further written submissions after the hearing | 76 |
| Application to amend and to consolidate the First and Second Claims | 78 |
| Miscellaneous | 78 |
| Postscript | 79 |
GLOSSARY OF ABBREVIATED TERMS
| ABBREVIATION | PARA WHERE FIRST DESCRIBED | EXPLANATION |
| “the Attribution Grounds” | 83 | The Provimi Ground and the Decisive Influence Ground |
| “Balmain 1” | 18 | The first witness statement dated 4 October 2017 of Mr Charles Balmain supporting TIS's strike out and summary judgment application in respect of the First Claim |
| “Balmain 2” | 18 | The second witness statement dated 25 May 2018 of Mr Charles Balmain supporting TIS's strike out and summary judgment application in respect of the First Claim |
| “CAPOC” | 2 | The draft Consolidated Amended Particulars of Claim |
| “CDTs” | 6 | Colour display tubes |
| “CPTs” | 5 | Colour picture tubes |
| “CTVs” | 4 | Colour TVs |
| “the Decision” | 5 | The decision of the European Commission of 5 December 2012 in the case of COMP/39437 — TV and Monitor Tubes |
| “the Decisive Influence Ground” | 84 | The ground of liability for infringement of Article 101 based on the proposition of EU law that where company X has “decisive influence” over company Y, and the two companies form the same “undertaking” or “single economic unit”, company X will be liable for an infringement of Article 101 carried out by company Y. A rebuttable presumption of “decisive influence” arises where company X owns (directly or indirectly) all or most of the shares in company Y |
| “the First Claim” | 1 | Claim issued by the Claimants on 7 April 2017 against the Toshiba Defendants and PE for damages for losses said to have been incurred as a result of the alleged anti-competitive to the sales to the Claimants of colour TVs |
| “Gerrits 1” | 20 | The first witness statement dated 12 December 2017 of Mr Rony Gerrits supporting PE's strike out and summary judgment application in respect of the First Claim |
| “Gerrits 2” | 20 | The second witness statement dated 1 March 2018 of Mr Rony Gerrits supporting PE's strike out and summary judgment application in respect of the First Claim |
| “Gerrits 3” | 22 | The third witness statement dated 29 March 2018 of Mr Rony Gerrits supporting PME's and PI's application for a declaration that the Court has no jurisdiction over the Second Claim |
| “Gerrits 4” | 20 | The fourth witness statement dated 21 September 2018 of Mr Rony Gerrits replying to the Claimants' response to PE's strike out/summary judgment application |
| “the Latter Period” | 8 | The period between 1 April 2003 and 12 June 2006 |
| “MDDG” | 40 | Matsushita Display Devices Germany GmbH |
| “Media-Saturn” or “the Claimants” | 1 | Media-Saturn Holding GmbH and about 360 other entities incorporated in a number of EU Member States |
| “MELUK” | 40 | Matsushita Electric (UK) Limited |
| “MTE” | 40 | Matsushita Television Central Europe |
| “MTPD” | 8 | MT Picture Display Co Ltd |
| “MTPDG” | 28 | MT Picture Display Germany GmbH |
| “Murray 1” | 18 | The first witness statement dated 19 January 2018 of Mr Robert Murray detailing the Claimants' response to TIS's strike out and summary judgment application in respect of the First Claim |
| “Murray 2” | 18 | The second witness statement dated 20 July 2018 of Mr Robert Murray detailing the Claimants' response to TIS's strike out and summary judgment application in respect of the First Claim |
| “Panasonic” | 129 | The name given to the single undertaking described in CAPOC at paragraph 19, comprising PC and its relevant Panasonic group entities |
| “the Panasonic Defendants” | 2 | PE, PME and PI |
| “PBN” | 45 | Panasonic Belgium N.V |
| “PC” | 8 | Panasonic Corporation |
| “PDG” | 47 | Panasonic Deutschland GmbH |
| “PE” | Para. 2/Footnote 1 | Panasonic Europe Limited |
| “PI” | 2 | Panasonic Industry Europe GmbH |
| “PIEG” | 38 | Panasonic Industrial Europe GmbH |
| “PIEL” | 38 | Panasonic Industrial Europe Ltd |
| “PIS” | 47 | Panasonic Italia SPA |
| “PIUK” | 41 | Panasonic Industrial UK Ltd |
| “PME” | 2 | Panasonic Marketing Europe GmbH |
| “PoC” | 9 | The Particulars of Claim |
| “the Provimi Ground” | 86 | A suggested ground of liability for infringement of Article 101 in which company C can be held liable for a cartel infringement, regardless of whether C has any actual knowledge of the cartel, where (i) C is part of the same “undertaking” or “single economic unit” as company D, (ii) D is an infringer, and (iii) C implements the offending cartel in some way |
| “PUK” | 41 | Panasonic UK Ltd |
| “RBR” | 19 | Recast Brussels Regulation |
| “the Second Claim” | 2 | Claim issued by the Claimants on 27 February 2018 against PME and PI on grounds similar to those in the First Claim |
| “TC” | 8 | Toshiba Corporation |
| “TEG” | 1 | Toshiba Europe GmbH |
| “TEEG” | 1 | Toshiba Electronics Europe GmbH |
| “TIS” | 1 | Toshiba Information Systems (UK) Limited |
| “Toshiba” | 129 | The name given to the single undertaking described in CAPOC at... |
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