National Grid Electricity Transmission Plc v (1) Abb Ltd (2) Abb Power T & D Ltd and Others

JurisdictionEngland & Wales
JudgeTHE CHANCELLOR OF THE HIGH COURT,The Chancellor
Judgment Date12 June 2009
Neutral Citation[2009] EWHC 1326 (Ch)
Docket NumberCase No: HC08C03243
CourtChancery Division
Date12 June 2009

[2009] EWHC 1326 (Ch)

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Before : THE CHANCELLOR OF THE HIGH COURT

Case No: HC08C03243

Between
National Grid Electricity Transmission Plc
Claimant
and
(1) Abb Limited
Defendants
(2) Abb Power T & D Limited
(3) Abb Limited
4) Abb Holdings Limited
5) Abb Asea Brown Boveri Limited
(6) Alstom Sa
(7) Alstom Limited
(8) Alstom Uk Holdings Limited
(9) Alstom Holdings Sa
(10) Areva Sa
(11) Areva T & D Limited
(12) Areva T & D Holdings Sa
(13) Siemens Ag
(14) Siemens Transmission & Distribution Ltd
(15) Va Tech Reyrolle Distribution Limited
(16) Siemens Plc
(17) Va Tech (uk) Limited
(18) Siemens Holdings Plc
(19) Va Tech Schneider High Voltage Gmbh
(20) Va Tech Transmission & Distribution & Co Keg
(21) Siemens Aktiengesellschaft österreich

MR J TURNER QC & MR D BEARD (instructed by Berwin Leighton Paisner LLP) for the Claimant

MR M HOSKINS QC (instructed by Freshfields Bruckhaus Deringer LLP) for the 1st -5th Defendants

MR S MORRIS QC (instructed by Lovells LLP) for the 6th – 9th Defendants

MR M BRINDLE QC & MS K BACON (instructed by Shearman & Sterling (London) LLP) for the 10 th– 12 th Dfendants

MR M BREALEY QC & MS M DEMETRIOU (instructed by Clifford Chance LLP) for the 13th —21st Defendants

Hearing date: 3 June 2009

Approved Judgment

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.

THE CHANCELLOR OF THE HIGH COURT The Chancellor

Introduction

1

The claimant (“NGET”) is an indirect wholly owned subsidiary of National Grid plc. It owns and maintains the high-voltage electricity transmission system in England and Wales and operates such system across Great Britain. For that purpose it needs Gas Insulated Switchgear (“GIS”) to control energy flow in electricity grids. GIS is sold internationally as a part of “turnkey” power substations and separately for integration into a power substation.

2

In the light of certain information provided to the European Commission by the first defendant ABB Ltd on 3rd March 2004, obtained from unannounced inspections at the premises of other institutions on 11th and 12th May 2004 and promises of co-operation from the 10th defendant (“Areva SA”), and the 13th defendant (“Siemens AG”) given on 14th and 17th May 2004 respectively, on 20th April 2006 the European Commission instituted proceedings under Article 81 of the EC Treaty and Article 53 of the EEA Agreement in relation to GIS under the title Case COMP/F/38.899 – Gas Insulated Switchgear. The decision of the European Commission (“the Decision”) was promulgated on 24th January 2007. I shall refer to the Decision in more detail later. For present purposes it is sufficient to note that the Commission concluded that there had been, between 15th April 1988 and 11th May 2004 very serious infringements of Article 81 EC Treaty and Article 53 EEA Agreement, the illegality of which the undertakings participating therein were or should have been aware. Such undertakings included one or more members of the four groups represented by the defendants to this action, namely ABB (defendants 1–5), Alstom (defendants 6–9), Areva (defendants 10–12) and Siemens (defendants 13–21). By Article 2 substantial fines were imposed on Alstom, both individually and jointly and severally with Areva, and Siemens. ABB had been found to be a participant but was granted immunity from a fine of €215m because of its co-operation with the Commission. By Article 3 the undertakings to which the Decision was addressed were directed to bring the infringements to an end and refrain from any similar conduct in the future.

3

Between 16th and 19th April 2007 Alstom, Areva and Siemens, amongst others, appealed to the Court of First Instance (“CFI”) seeking the annulment, so far as concerned each of them respectively, of the Decision. The fact of such appeals and a brief description of the grounds relied on were published in the Official Journal ( C140/28) on 23rd June 2007. A redacted version of the Decision was obtained by NGET in August 2007. NGET instructed their present solicitors in May 2008.

4

The claim form instituting the proceedings with which I am concerned was issued on 17th November 2008 and served with substantial Particulars of Claim on and after 19th November 2008. The action is a 'follow on' action, in that it relies on the Decision for establishing the infringements on which it relies by reason of Articles 10, 81 and 249 EC Treaty and Council Regulation 1/2003/EC of December 2002. NGET claims damages in the sum of £249m. I shall refer to the Particulars of Claim in greater detail later.

5

Between 18th February and 5th March 2009 all the defendants to the action issued applications seeking a stay of all further proceedings in the action pending the conclusion of their applications to the Court of First Instance and of any subsequent appeals to the European Court of Justice (“ECJ”). I should add that:

(1) By agreement, the claim against the 11th defendant Areva T&D UK Ltd has been struck out.

(2) Siemens seeks an order for further information to be provided by NGET but, subject to its satisfactory provision, is content to serve its defence before the stay takes effect.

(3) All other defendants contend that the stay should take effect immediately and before any of them has served a defence.

(4) NGET accepts that, in the light of the decision of the European Court of Justice in Masterfoods Ltd v HB Icecream Ltd [2000] ECR I-11369, its claim may have to be stayed at some stage, so as to ensure that before its trial there is a definitive decision on the appeals now pending before the CFI and any subsequent appeal to the ECJ, but contends that that stage has not yet arrived.

6

Thus the issues before me are (1) when the stay sought by the defendants should take effect, and (2) whether NGET should be ordered to provide the further information sought by Siemens. Before I can deal with those issues it is necessary to describe and explain the defendants, the Decision and the parties' appeals therefrom and the Particulars of Claim in greater detail.

The Defendants

ABB

7

The first defendant is the parent company of the ABB Group. The second to fifth defendants are its wholly owned direct or indirect subsidiaries. The Decision was addressed to the first defendant alone. In recital (341) the Commission concluded that ABB Ltd had participated in the collusive behaviour therein described from 15th April 1988 to 2nd March 2004. As I have recorded, but for the immunity to which the Commission found it to be entitled, it would have been liable for a fine of €215m. In paragraphs 6 and 7 of the Particulars of Claim NGET contends that all five ABB defendants were, in the relevant period, engaged or involved in the manufacture, sale and installation of GIS and the design, manufacture, sale and installation of systems involving GIS and that it had purchased such switchgear from the second defendant, either alone or as comprised in various specified projects.

Alstom

8

The sixth defendant Alstom SA is the holding company of the Alstom Group. The seventh to ninth defendants are its wholly owned direct or indirect subsidiaries. Until 8th January 2004 the Alstom Group was likewise engaged in the design, manufacture, sale and installation of GIS or systems incorporating GIS. NGET contends that until that date it bought GIS or installations incorporating GIS from a further wholly-owned subsidiary, Alstom T&D Systems Ltd. Alstom SA sold that subsidiary and the whole of its electricity transmission and distribution business (including the production and sale of GIS) to the 10th defendant, Areva SA, on 9th January 2004. Alstom T&D Systems Ltd was dissolved on 6th September 2005, its business and assets having been assimilated into other parts of the Areva Group. The Decision was addressed to Alstom SA alone. The fine imposed on Alstom was €65m of which, for the reasons summarised in paragraph 11 below, €53.5m was expressed to be a joint and several liability with Areva T&D SA.

Areva

9

Areva SA is the parent company of the Areva Group. The twelfth defendant is its wholly owned subsidiary. (As I have already noted the claim against the 11th defendant has been struck out.) NGET contends that by its acquisition of the electricity and transmission business of Alstom and the shares in Alstom T&D Systems Ltd as from 9th January 2004 Areva was likewise engaged in the design, manufacture, sale and installation of GIS or systems incorporating GIS.

10

The Decision was addressed to Areva SA and Areva T&D Holding SA, the 10th and 12th defendants as well as two other Areva group companies which are not parties to these proceedings, namely Areva T&D AG and Areva T&D SA. In recitals (362) to (370) the Commission explained the complications arising from the transfer of business from Alstom to Areva and its subsequent assimilation into other parts of the Areva group. It considered at some length the rival arguments advanced by interested parties. The Commission's conclusions expressed in recital (371) were:

“For the reasons explained above as well as in recitals (333) to (337) and (345) to (358):

a) AREVA T&D SA should be held jointly and severally liable with ALSTOM (Société Anonyme) for their involvement in the infringement between 7 December 1992 and 22 December 2003;

b) AREVA T&D SA, ALSTOM (Société Anonyme) and AREVA T&D AG should be held jointly and severally liable for their involvement in the infringement between 22 December 2003 and 8 January 2004; and

c) AREVA SA, AREVA T&D Holding SA, AREVA T&D SA and AREVA T&D AG should be held jointly and severally liable for their involvement in the infringement from 9 January 2004 until 11 May 2004.

11

These conclusions were...

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