On 13 September 2012, the English Court of Appeal handed down an important judgment (Case No: A3/2011/2818) on the "anchoring" of damage claims under English law. It decided that the United Kingdom subsidiary of one of the cartel members could be "used" as an anchor defendant by the claimants, even though the subsidiary itself had not been identified as a member of the cartel by the European Commission.
In 2003, the Commission found an infringement on the market for industrial tubes. In 2009, Toshiba Carrier UK Limited and others brought a suit for damages under English law against nine producers of industrial tubes. Of those nine defendants, only one was domiciled in the UK (KME Yorkshire Limited). This UK subsidiary of KME was not an addressee of the Commission's decision, but its non-UK parent company was. The claimants argued that the High Court should take jurisdiction over the UK subsidiary on the basis of Article 2 of the Brussels I Regulation (because it is domiciled in the UK) and over the non-UK companies on the basis of Article 6 of the Brussels I Regulation (because the claims are closely connected).
The defendants argued that the case against the UK subsidiary should be struck out because it had not been found by the Commission to have participated in the cartel. As a result, the defendants argued that the English court would no longer have jurisdiction over the entire case. However, on appeal the Court of Appeal dismissed the defendant's appeal. The Court of Appeal held that the allegations in the claim form included not only a follow-on claim based on the Commission's decision, but also a stand-alone claim for an infringement of Article 101 of the TFEU, alleging that the UK subsidiary participated in the cartel. Therefore, the Court of Appeal decided the appeal should be dismissed.