Skanska: are jurisdiction challenges now an impossible undertaking?

Abstract

Claimants in private damages actions following on from European Commission cartel decisions are often faced with a choice of jurisdiction in which to pursue their claims. However, seising jurisdiction in the national court of a desired Member State can require the claim to be pursued against an anchor defendant that is not an addressee of a Commission decision. This may, in the English courts, give rise to various disputes as to the role of that non-addressee defendant in the cartel and, accordingly, whether a claim can in fact be sustained as against that defendant. The Court of Justice's recent judgment in Vantaan Kaupunki v Skanska Industrial Solutions potentially relieves claimants from the burden of having to establish that the non-addressee defendant participated in, or implemented, the cartel in order to sustain a claim against it, by holding that it is entire undertakings that are liable for compensation in private damages actions. The Skanska judgment harmonizes the scope of liability under the public and private spheres of EU competition law enforcement and has potentially significant ramifications for competition litigation in the English courts.