New Judgment: Deutsche Bahn AG & Ors v Morgan Advanced Materials Plc (formerly Morgan Crucible Co Plc)  UKSC 24
09 Wednesday Apr 2014
On appeal from:  EWCA Civ 1055.
The appellants participated in an illegal cartel in electrical and mechanical carbon and graphite products, which they disclosed the existence of to the European Commission. As whistle-blowers they escaped any fine, whereas the other cartel members were fined heavily under the Commission’s Decision. The respondents later filed ‘follow-on’ claims for damages with the Competition Appeal Tribunal for loss alleged to have resulted from the operation of the cartel. The issue before the Supreme Court was whether this claim should be struck out for being brought outside of the limitation period under the Competition Act 1998, s47A – which depended on whether the Commission Decision is viewed as a decision made against the appellants which they chose not to appeal; or as a decision made against all the cartel members, appealed by most of them, and finally upheld by the General Court.
The appeal was unanimously allowed. Decisions of the CJEU establish that a decision by the Commission regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding against an individual addressee who does not appeal even if there is a successful appeal by another addressee. Even if the appeals by the other cartel members had succeeded, the Commission Decision would have remained in full force against the appellants. That being the only decision against the appellants in European law, it is also the only decision to which s 47A can refer.