Background
Nexans France SAS and Nexans SA appealed a Competition Appeal Tribunal judgment finding that they had supplied high-voltage submarine power cables at an unlawful cartel-inflated price to London Array Limited and related companies for a wind farm project in the Thames Estuary. The European Commission had previously found (Case AT.39610, 2 April 2014) that Nexans participated in a worldwide bid-rigging cartel affecting high-voltage submarine and underground power cables. In that cartel, competing cable suppliers covertly agreed which company would win each tender and at what price.
London Array required two types of cables: inter-array cables and export cables. Nexans Norway (a subsidiary within the Nexans group) supplied the export cables after winning a competitive tender process. Three compliant bids were received in November 2008—from Nexans Norway, ABB, and Prysmian. Nexans Norway reduced its price in a second round and was selected as offering the best price. The respondents (London Array participants) sued for damages, alleging that the price they paid reflected the cartel’s anti-competitive effects.
The Competition Appeal Tribunal found that Nexans and ABB had engaged in collusive price coordination in November 2008 for the London Array bid (even though ABB had applied for leniency on 17 October 2008, formally ending its stated cartel participation), that Prysmian had submitted a high cover bid designed not to win, and that Nexans knew this. The tribunal concluded there was an unlawful overcharge on the export cables.
The Court’s Holding
The Court of Appeal affirmed the Competition Appeal Tribunal judgment and dismissed Nexans’ appeal on all major grounds. Lord Justice Green held that the binding findings of the European Commission clearly established that Nexans’ infringement continued until 28 January 2009 and that Nexans had contacted ABB in November 2008 to coordinate prices for London Array—this was explicitly documented in the Commission’s Decision at paragraph [444]. The formal determination that ABB’s infringement ceased on 17 October 2008 did not contradict these findings; instead, ABB’s subsequent cartel conduct with Nexans was permissible under leniency procedures because the Commission required ABB to “play along” with the cartel to protect the integrity of its investigation.
The court rejected the procedural fairness objection, finding that the respondents had clearly pleaded the issue by referencing the Commission Decision’s paragraph [444], which described the Nexans-ABB price coordination. Although ABB’s identity was redacted in the published Decision, Nexans had access to the unredacted version and knew which party was involved. The court held there was no procedural unfairness to ABB itself, as the tribunal made no finding of liability against it. The court also upheld the tribunal’s drawing of adverse inferences from Nexans’ failure to provide evidence about how the cartel operated in practice, consistent with the Commission’s own findings that Nexans France’s conduct resulted in Nexans Norway offering cartel-influenced bids.
Key Takeaways
- The formal end-date of a cartel participant’s liability under a Commission decision does not preclude liability findings for subsequent cartel conduct undertaken with the Commission’s knowledge to preserve investigative integrity.
- In follow-on cartel damages cases, parties withholding evidence about cartel operation face adverse inference findings; the burden lies on the party with access to that information.
- Pleading in follow-on damages claims need not name specific co-conspirators by name if the decision reference clearly identifies the alleged conduct; reference to the Commission Decision’s factual findings is sufficient notice.
- The binding nature of a Commission decision in follow-on civil proceedings covers both the formal determination and the operative reasoning supporting findings against parties to the cartel.
Why It Matters
This judgment clarifies the status of follow-on damages claims arising from EU cartel findings and confirms that UK courts will enforce the substantive findings of Commission decisions even where internal complexity exists (such as leniency procedures permitting continued technical violation). It reinforces that cartellists cannot avoid damages liability by claiming lack of detailed knowledge about how cartel directives flowed through corporate structures, particularly where—as here—the Commission has already made group-liability findings at the parent level. The decision strengthens the position of damages claimants by limiting procedural defenses based on pleading technicalities when Commission Decisions provide the foundational findings.
For competition practitioners, the ruling demonstrates that UK appellate courts will draw adverse inferences where cartel defendants withhold evidence about cartel mechanics and internal coordination, and will view follow-on civil claims as properly arising from Commission determinations even if those determinations are primarily focused on regulatory liability and penalties rather than quantifying customer harm. This has implications for the settlement calculus in cartel damages litigation in the United Kingdom.
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