Judgment on two applications by the claimants, made pursuant to section 47A of the Competition Act 1998 and Rule 31(3) of the Tribunal’s Rules, for permission to make a claim for damages, one against Schunk GmbH and Schunk Kohlenstofftechnik GmbH (“Schunk”), and SGL Carbon AG, and the other against Le Carbone Lorraine S.A (“Carbone Lorraine”) (together “the proposed defendants”).
In deciding whether to grant permission to bring the proposed claims, the Tribunal had regard to all the relevant circumstances, including the nature and scope of the proceedings brought before the European Court of First Instance; the nature and extent of particular prejudice that either party will suffer as a result of granting permission; and the observations of the proposed defendants. The overriding consideration was whether granting permission enables a case to be dealt with justly.
The applications for permission to make a claim for damages against each of the proposed defendants were refused.
The Tribunal found that the claimants had failed to establish that they were likely to suffer particular prejudice if permission is refused. The various concerns expressed by the claimants about delay were likely to exist in any follow-on action.
The Tribunal also found that the proceedings instituted by Schunk and Carbone Lorraine in the European Court of First Instance were challenging the scope of the infringement found by the Commission. In these circumstances, the ambit of the prior findings of infringement on which the claimants base their follow-on action and the extent of their alleged losses could differ from those originally found by the Commission. Until the European proceedings were determined, there was no sure foundation for the proposed claims.
