CAT unlimited: the Deutsche Bahn decision

Where the Commission has issued a decision finding several addressees liable for the same infringement, amongst the more important tactical questions for a claimant in the UK are: where to sue the addressees and when? The decision of the Court of Appeal in Deutsche Bahn & AG & Ors v Morgan Crucible Company plc & Ors [2012] EWCA Civ 1055 – regarding limitation rules applicable to follow on claims – makes the CAT more attractive than ever.

In an important and long-awaited judgment, the Court held that the two year limitation period under r. 31 of the CAT Rules does not begin to run against any addressee until the time for appealing against the Commission’s decision has expired against all of them.

In doing so the Court rejected the view (which have found favour with the CAT) that a decision of the Commission was to be regarded as a “bundle of individual decisions” that each addressee had committed an infringement. That view of things was relied on in support of the argument that an appeal by one addressee is immaterial to the status of the (separate) decision as regards another. The Court held that this approach (whatever its foundation in EU law) was irrelevant to the meaning of the limitation rules in issue, which concerned the allocation of judicial business amongst the domestic courts ([105]-[106]).

The Court’s decision will (in large part) be welcomed by claimants and their lawyers. It is now clear that a claimant need not rush to sue an addressee cartelist who has not appealed against the Commission’s finding of a single and continuous infringement, provided that other addressees have.

There is also some comfort for defendants too. One implication of the Court’s rejection of the “bundle of individual decisions” analysis is that a claimant seeking to rely on a decision against an addressee which did not appeal against it, in circumstances where other addressees successfully have, is likely to face an uphill task persuading the CAT that the legislation permits this (e.g. see Mummery LJ’s observations at [19]).

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