The facts really do matter in competition follow-on damages
actions, according to the High Court’s ruling in a claim brought by BritNed against
ABB arising out of the power cables cartel.
ABB did not dispute its participation in a cartel which was
the subject of a European Commission 2014 decision finding an infringement of
Article 101 TFEU. It did, however, deny
that BritNed had suffered any loss as a result.
BritNed alleged that it was overcharged for the cable
component of the Dutch-UK Interconnector.
The High Court did not accept that claim, finding that there was no deliberate
overcharging and that the direct costs for ABB’s tender for the project were
honestly and competently compiled.
The High Court did, however, find an overcharge on account of
embedded inefficiencies where the cartel was found to have an insulating effect
for ABB. On this reasoning, but for the cartel,
ABB would have had to cut costs for the tender.
The High Court also found an overcharge arising from a “cartel saving”
where ABB’s common costs were reduced because the cartelists did not have to
compete
The High Court rejected BritNed’s claims for loss of profits
and compound interest and also ABB’s claims that any damages needed to be assessed
by reference to the regulatory cap on BritNed’s earnings.
ABB was ordered to pay approximately €7.5 million for the
inbuilt inefficiency and €5.5 million for the efficiency savings arising from
participating in the cartel.
BritNed Development Limited v ABB AB
and ABB Limited
[2018] EWHC 2616 (Ch)
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