ON APPEAL FROM THE COMPETITION APPEAL TRIBUNAL
LORD CARLILE OF BERRIEW Q.C., GRAHAM MATHER
AND RICHARD PROSSER OBE
 CAT 36
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE PATTEN
| ENRON COAL SERVICES LTD (in liquidation)
|- and -
|ENGLISH WELSH & SCOTTISH RAILWAY LTD
Orrick, Herrington & Sutcliffe (Europe) LLP) for the Appellant
Mark Brealey Q.C. and Maya Lester (instructed by
Freshfields Bruckhaus Deringer LLP) for the Respondent
Hearing dates: 1-2 November 2010
Crown Copyright ©
Lord Justice Lloyd:
Follow-on claims for damages for anti-competitive conduct
ECSL's claim against EWS
"(2) Conduct may, in particular, constitute such an abuse of a dominant position in a market if it consists in
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage"
"ORR finds that the conduct of EWS identified above in relation to (b) discrimination against ECSL constitute abuses of a dominant position within the meaning of the Chapter II prohibition and Article 82 EC."
"Following issue of the [Supplemental Statement of Objections] in March 2006 and subsequent to the Supplementary Response, ORR entered into discussions with EWS aimed at expediting the conclusion of ORR's investigation. EWS agreed that as a result of the significant reduction in the fine that it would otherwise have received (prompted by its co-operation in accepting that it had infringed the Act) and given that ORR did not, having considered EWS's representations, reach any finding in relation to an EWS Board strategy to exclude any third party from the market or as to the amount of damage that may have been suffered by ECSL or FHH [Freightliner Heavy Haul], EWS would accept the three findings of infringement now set out in this Decision."
That passage repeated text first set out at paragraph 11 of the Decision. Each version of the text carried a footnote, relevantly as follows: "EWS strongly disputed on the facts that there was any evidence that quantified the degree to which FHH or ECSL had been affected by EWS's conduct."
"As regards the discriminatory conduct, ORR considers, on the basis of the available evidence, that the contracts to which they related were of importance to ECSL, because they offered to ECSL an opportunity to establish a relationship with the generating companies that might in turn facilitate further entry of competitors for EWS in the coal haulage market. ORR accepts that the proportion of the market directly affected by EWS's actions in offering discriminatory prices to ECSL was small. ORR notes, also, that ECSL's exit from the market cannot be attributed to EWS's conduct and that it has no evidence that quantifies the degree to which ECSL was affected by EWS's conduct."
"Therefore the issues falling for decision are:
(i) What infringement was found by the ORR?
(ii) What (if any) is the loss or damage caused by that infringement?
(iii) If the claimed loss or damage was caused by that infringement, what (if any) is the quantum of that loss or damage?"
"(a) The claimant has to show on the balance of probabilities what it would have done, but for the infringement. If it fails at that point to cross the relevant factual threshold, that is the end of the matter. In the present case, ECSL must demonstrate that, in the but for world, (a) it would have submitted a bid to EME on the basis of terms agreed with EWS and (b) it would have sought to negotiate with EME for a four year E2E contract to supply coal to Ferrybridge C.
(b) Where (as here) loss depends on what a third party would have done, but for the abuse, then the claimant must satisfy the Tribunal on the balance of probabilities that there is a real or substantial (i.e. not negligible) chance that the third party would have acted in the way which the claimant asserts: here, ECSL must show that, absent EWS' abuse, there was a real or substantial chance that negotiations between EME and ECSL would have led to the award of a four year E2E contract to supply coal to Ferrybridge C."
The statutory provisions as to the binding effect of decisions and findings
"(9) In determining a claim to which this section applies the Tribunal is bound by any decision mentioned in subsection (6) which establishes that the prohibition in question has been infringed."
"58(1) Unless the court directs otherwise, an OFT's finding which is relevant to an issue arising in Part I proceedings is binding on the parties if
(a) the time for bringing an appeal (under section 46 or 47) in respect of the finding has expired and the relevant party has not brought such an appeal under section 46 or 47; or
(b) the decision of the Tribunal on such an appeal has confirmed the finding.
(2) In this section
"an OFT's finding" means a finding of fact made by the OFT in the course of conducting an investigation;
"Part I proceedings" means proceedings brought otherwise than by the OFT
(a) in respect of an alleged infringement of the Chapter I prohibition or of the Chapter II prohibition; or
(b) in respect of an alleged infringement of the prohibitions in Article 81(1) or Article 82;"
"58A(1) This section applies to proceedings before the court in which damages or any other sum of money is claimed in respect of an infringement of
(a) the Chapter I prohibition;
(b) the Chapter II prohibition;
(c) the prohibition in Article 81(1) of the Treaty;
(d) the prohibition in Article 82 of the Treaty.
(2) In such proceedings, the court is bound by a decision mentioned in subsection (3) once any period specified in subsection (4) which relates to the decision has elapsed.
(3) The decisions are
(a) a decision of the OFT that the Chapter I prohibition or the Chapter II prohibition has been infringed;
(b) a decision of the OFT that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed;
(c) a decision of the Tribunal (on an appeal from a decision of the OFT) that the Chapter I prohibition or the Chapter II prohibition has been infringed, or that the prohibition in Article 81(1) or Article 82 of the Treaty has been infringed.
(4) The periods mentioned in subsection (2) are
(a) in the case of a decision of the OFT, the period during which an appeal may be made to the Tribunal under section 46 or 47;
(b) in the case of a decision of the Tribunal mentioned in subsection (3)(c), the period during which a further appeal may be made under section 49;
(c) in the case of any decision which is the subject of a further appeal, the period during which an appeal may be made to the Supreme Court from a decision on the further appeal;
and, where any appeal mentioned in paragraph (a), (b) or (c) is made, the period specified in that paragraph includes the period before the appeal is determined."
"The corollary to this is that the Tribunal (whose jurisdiction depends upon the existence of such a decision) must satisfy itself that the regulator has made a relevant and definitive finding of infringement. The purpose of section 47A is to obviate the necessity for a trial of the question of infringement only where the regulator has in fact ruled on that very issue. We were not referred to any procedure for seeking clarification of any points of uncertainty from the decision-maker. The Tribunal ought therefore, in my judgment, to be astute to recognise and reject cases where there is no clearly identifiable finding of infringement and where they are in effect being asked to make their own judgment on that issue."
"I would emphasise (as he does in paragraph 31) the need for a determination by the regulator of an infringement as a foundation for liability under section 47A. It is not enough to be able to point to findings in the decision from which an infringement might arguably be inferred."
The Tribunal's reasoning
"Should you wish, we can help gain additional efficiencies, particularly given our active involvement with UK ports and our presence in the international freight markets. Any combination of our haulage, freight and port throughput services will help [EME] to streamline its import activities and minimise costs."
"We now turn to the crux of the (a) question in the present case, namely the manner in which ECSL would have communicated its bid to EME in the but for world; and whether the Tribunal can be satisfied that it is more likely than not that ECSL would have sought to negotiate with EME for a four year E2E contract to supply coal to Ferrybridge C. For the Tribunal to be so satisfied, it would expect to see some evidence that the contract was viewed internally within ECSL as an important opportunity worthy of pursuit (or that it would have been so viewed in the but for world) and that their bid was communicated (or would have been communicated in the but for world) in a manner that clearly signalled the intensity of their interest."
i) One employee of ECSL reported to others a conversation with EME, just before the invitation to tender was sent to ECSL, in which he had said to EME that ECSL wanted to rebuild a long-term relationship with EME, and told them that ECSL would be happy to quote both for rail haulage and an E2E deal.
ii) One paragraph of the invitation to tender was in these terms: "Feel free to propose imaginative solutions. We believe in working closely with our chosen suppliers as your efficiency and value for money directly impact on ours." One person within ECSL took a somewhat jaundiced view of this.
iii) The evidence of Mr Kearney, who had been a senior employee of ECSL at the time, was that ECSL did not attach serious importance to the response to EME's invitation to tender. The employees involved in the tender were at a relatively low level in the hierarchy. If it had been intended as a tender to supply coal it would have been handled by different and more senior staff: see paragraphs 134-5.
"EME issued an ITT on 26 June 2000 for its long term coal haulage requirements to its power stations, following expiry of the previous E2E deal with ECSL. The contract was for haulage to EME's two power stations at Fiddler's Ferry and Ferrybridge for a four-year period with a commencement date of 1 January 2001. ECSL (on an E2E basis), FHH and EWS all bid for the contract."
"Notwithstanding the language used by the ORR, the Tribunal's view of the bid, and the circumstances in which it was communicated, is that it was far from clear that ECSL did, in the real world, signal its intention to enter into a four year E2E coal supply contract. We have not heard any submission from ECSL that the manner in which the bid was communicated (as distinct from the rates and terms contained in that bid) would have been materially different in the but for world. We return to this issue in more detail in connection with the (b) question below."
"The fact that no negotiations took place between EME and ECSL in the real world, notwithstanding a competitive price, would appear to contradict ECSL's claim that negotiations would have followed from their submission of a bid that was at least as competitive as EWS's bid, and suggests that other factors would have been relevant to the ultimate outcome."
"We cannot therefore conclude that it was more likely than not that it would have sought to negotiate with EME for a four year E2E contract for coal supply to Ferrybridge C, and indeed cannot conclude that it was more likely than not that ECSL would have sought to negotiate with EME at all."
(a) The findings of the ORR in the Decision;
(b) Whether there was an opportunity for an E2E arrangement associated with the tender for haulage; and
(c) The reasons why EME rejected ECSL's bid in the real world and whether those reasons would have differed in the but for world.
"The finding of competitive disadvantage (which EWS accepts, as it must) means that EWS hindered the competitive position of ECSL in relation to the EME Tender. This is certainly relevant to, but not determinative of, the question of causation. It is relevant because it means that ECSL was impeded in its ability to offer EME competitive rates for coal haulage and supply. It is not determinative because the Decision does not establish that ECSL was well-placed to win a coal supply contract with EME absent the abuse."
"Generating companies source coal according to the lowest delivered price, taking account both of the cost of the coal and the cost of transportation, and the costs associated with the qualities of the coal."
"so far as EME was concerned, procurement of coal was influenced by not only the lowest delivered price but also by other considerations, notably the quality and reliability of the proposed service; the preference for direct contact with suppliers or hauliers; the need for flexibility to adjust the volume of supplies under a contract and the difficulties encountered in dealing with ECSL in the past."
"Taking all this evidence together we conclude that ECSL had no real or substantial prospect of supplying coal to EME on an E2E basis. This was a speculative prospect: there is ample evidence about the unwillingness of EME to enter into a long-term coal supply contract."
The ORR Decision
"ORR has concluded that the facts underlying the complaint of a refusal to deal and that of discrimination are the same and that the essence of the abusive conduct in question is discrimination on the part of EWS in relation to prices offered to ECSL. Taken together the conduct amounts to a sustained and deliberate campaign by EWS to protect its own dominant position from competition and to disadvantage ECSL (perceived by EWS to act as a competitor to it) and FHH (a new entrant providing haulage of coal by rail)."
"32. As described at Annex C, coal is supplied from a variety of sources: directly from deep and open cast indigenous mines; from overseas via UK ports; and sometimes via coal processors within the UK. Users of coal may consider a variety of coal purchasing options ranging from: (a) contracting directly with these sources of supply and separately with shippers (including the inland rail provider) and with ports for port capacity and services (full 'DIY' option); or (b) having one contract with a third party intermediary which will provide a price for traded coal or a price for 'straight to stock pile' arrangements which may include, inter alia, the cost of transport from origin to destination ('End to End' arrangements, commonly referred to as 'E2E' arrangements). There exist a range of other contractual options between these two.
33. ECSL acted as a third party intermediary for coal purchase, offering a range of services from simply coal trading to E2E deals as described above. According to ECSL, a key business strategy for ECSL was to provide 'delivered-to-stockpile' deals, providing total management of the supply chain, from coal purchase at the loading port through delivery to the customer's stockpile."
"In considering FHH's ability to compete in any given tender and hence provide a full and effective competitive constraint on EWS, it is therefore necessary to consider to what extent it had residual (i.e. net of existing contractual obligations) capacity to compete for the full amount of tonnage put out to tender."
"Looking at the three significant tenders during 2000, it can be seen that because of FHH's capacity constraints, its ability to constrain EWS was significantly limited."
"B4 ECSL provided a number of services to the owners of power stations including sourcing and trading on coal and providing straight to stock-pile deals (sourcing coal and arranging its transport from source to the power station's stockpile as part of an E2E deal). An integral part of this service was the management of risk not only in the purchase of coal but also in the entire supply chain. It presented itself as a manager of risk in the 'freight' market which it achieved through buying and managing capacity at ports, in vessels and in inland transport, particularly rail. It was prepared, for example to purchase track and rail operator capacity and to take on the performance risk of that element of the deal, "[ ] even when the national rail operators cannot guarantee performance, Enron will".
B5 EWS's discriminatory treatment of ECSL placed ECSL at a competitive disadvantage in respect of two specific sets of flows:
(a) Flows to the Fiddler's Ferry and Ferrybridge power stations, operated by Edison Mission Energy (EME). Between May 2000 and October 2000, EWS imposed higher prices on ECSL. This placed ECSL at a competitive disadvantage in its contractual negotiations with EME relating to coal haulage supply to Fiddler's Ferry and Ferrybridge power stations. Prior to the period of discriminatory pricing, ECSL had supplied EME on these flows on an E2E basis. Following the period of discriminatory pricing, ECSL was unsuccessful in renewing that relationship."
"B13 As explained in part II A above Exclusionary Contracts, the conduct of a dominant company has to be seen in the context of the prevailing market conditions. EWS's conduct in its negotiations with ECSL and the new owners of power stations has to be assessed in the light of the fact that the market was already subject to structural constraints, including the effect of the exclusionary provisions in EWS's coal carriage agreements which reduced the opportunities for new entrants. The following market developments created new coal haulage opportunities for new entrants or otherwise threatened EWS's market position:
(a) The divestiture of power stations to new owners such as EME and AES.
(b) The entry of ECSL as a coal trader, supply chain risk manager and E2E supplier in 1999.
(c) The increase in imported coal between 1999 and 2000.
(d) The possible role of ECSL as a facilitator of new entry to the relevant market."
"B42 In June 2000, EME and EWS reached an agreement to negotiate towards a direct contract for coal haulage by rail (on a DIY basis), which would replace the previous indirect E2E arrangements that EME had in place with ECSL. An internal EWS e-mail noted:
"We did the deal with Edison Mission yesterday morning for LBT-Fiddlers @ £[ ]/tonne as agreed. This rate until 16th September pending a contract. Enron are now off our hands so far as Edison are concerned. The Enron flows we have left are to British Energy's station at Eggborough; from Immingham, Redcar and Hull. Also to Enron's own power station at Wilton 250,000 tonnes/year. I think we are stuck Enron [sic] on the Eggborough traffic until next April when British Energy will, hopefully take over their own coal procurement. But we have got them out of Fiddlers Ferry and Ferrybridge a big step forward."
B43 This e-mail is evidence of both EWS's intent and, indeed, its success in stopping ECSL from carrying out indirect supplies to EME, one of the new generating companies."
"B60 ECSL had supplied EME on an E2E basis since summer 1999 when EME had taken over Fiddler's Ferry and Ferrybridge power stations following acquisition of the power station from E.ON (Powergen). In June 2000, EME issued an invitation to tender for longer-term arrangements for coal haulage to these power stations.
B61 The tender negotiations between June 2000 and October 2000 were concerned with prices for the haulage element of supply, EWS, Mendip Rail, GB Railfreight, Freightliner, Direct Rail Services and ECSL were asked to bid. ECSL was, therefore, in this tender, competing directly with EWS for coal haulage by rail as well as other operators.
B62 In bidding as part of these negotiations, EWS's discriminatory treatment of ECSL placed ECSL at a competitive disadvantage in two main ways:
(a) First, having failed to agree the performance related contract it had sought from EWS, ECSL was in the position of having neither its own coal haulage operations nor a suitable contract with EWS (the only operator of coal haulage by rail at the time). This would have impeded ECSL's ability to offer competitive rates for coal haulage to EME. In bidding to supply EME, ECSL would have had to bear the business risks of subsequently needing to re-open negotiations with EWS and/or trying to assist the new entry of an untested rail haulage operator that had never previously carried coal (the substantial barriers to entry to the market for coal haulage by rail are discussed in part I Market definition and Assessment of dominance).
(b) Second, ECSL's ability to offer relatively attractive rates for coal haulage to EME was impeded by the fact that, between August 2000 and October 2000, EWS (i) offered EME rates for coal haulage that were lower than the rates it had offered to ECSL in May 2000 but (ii) did not make available to ECSL the reduced rates it was offering to EME.
B63 Furthermore, when EWS made its lowest offer to EME, it indicated that the further rate reductions were available to EME on the assumption that EME would be using EWS on an exclusive basis:
"We have agreed to amend our prices on a number of flows on the clear understanding between our companies that EWS will become your rail haulage provider for all of your forecast tonnages as outlined in our previous correspondence."
B64 EWS was therefore prepared to offer selective price cuts to EME as part of its "wider offer" and in exchange for exclusivity. This is further evidence of the discriminatory approach that EWS adopted towards ECSL and the intent by EWS to undermine ECSL. Moreover, such an approach would have exacerbated the competitive disadvantage faced by ECSL. Were EME to have contracted with both EWS and/or ECSL for its haulage requirements, it would have lost out on the low rates that EWS offered in October 2000. In the event, EME contracted only with EWS for coal haulage by rail.
B65 It is not possible to conclude that ECSL was displaced from supplying EME as a result only of the discriminatory terms from EWS. Nonetheless, for the reasons set out above, ECSL was clearly placed at a competitive disadvantage when competing against EWS, compared to the scenario that would have prevailed had EWS been willing to treat ECSL in a non-discriminatory manner (i.e. had it offered ECSL similar rate reductions to those it had offered to EME)."
"The intermediary service that ECSL offered is therefore not simply that of an E2E supplier making margins out of favourable coal input prices, but also that of a wider intermediary across BE's coal haulage requirements. Overall, this reduced the involvement that BE needed to take in coal haulage operations, whilst allowing BE to benefit from both imported and UK coal supplies."
"B100 On the basis of all the evidence set out above, and the points made in response to EWS's arguments below, it is found that between May 2000 and November 2000, EWS pursued discriminatory pricing practices against ECSL. This discriminatory pricing placed ECSL at a competitive disadvantage when negotiating intermediary contracts (including E2E deals) with generating companies. EWS's intention was to reduce the threat that ECSL posed to its position in the market for coal haulage by rail in Great Britain. EWS has advanced no credible objective justification for the higher prices charged to ECSL. EWS's conduct distorted the competitive process and is inconsistent with the obligations of a dominant company. EWS's behaviour towards ECSL is therefore found to be abusive."
"Therefore, where the supply-side of two transactions is the same, that is, the supply is of the same product (i.e. coal haulage), using the same technology (i.e. haulage by rail), by the same undertaking (here, EWS), over at least the same origin-destination pair, such transactions are equivalent for the purposes of assessing price discrimination under competition law. Nonetheless, as recognised below, differences in the prices set for such transactions may be objectively justified, and would not constitute an abuse if they were incapable of placing a trading partner at a competitive disadvantage."
"B178 ECSL was a customer of EWS. However, the power generators were willing to consider contracting for coal haulage either indirectly through an intermediary (including the E2E option) or directly with the rail operator. This meant that ECSL also competed against EWS to win contracts with the power generator (as well as competing against other suppliers of coal to the generator). As a result, the competitive disadvantage that ECSL faced was not primarily a disadvantage compared to other customers of EWS. Rather, ECSL was at a competitive disadvantage vis-ΰ-vis other actual and potential competing suppliers to BE and EME. These parties included EWS as well as other suppliers of coal, whether on an E2E basis or not.
B179 Given this structure, neither EWS's assertion that, for ECSL to have faced competitive disadvantage, ECSL "must have been in competition with other customers of EWS who benefited from preferential EWS rates at the same point in time" nor its assertion that "coal haulage prices must have formed a material percentage of the [ ] overall 'delivered price' of coal [ ] of the power generators active in the downstream electricity generation market" is valid. The competitive disadvantage faced by ECSL was in relation to EWS and also to other suppliers of coal."
"B183 Furthermore, one important aspect of the competitive disadvantage that ECSL faced was that it went into tender negotiations in 2000 having failed to agree with EWS the performance-related deal for coal haulage that it had sought. As an intermediary and E2E supplier, this would have placed ECSL in a difficult position. In submitting a bid to a power generator, ECSL would have been forced to bear business risks that it would have avoided had it been treated in a non-discriminatory manner such that it was able to secure a suitable coal haulage contract with EWS.
B184 Somewhat differently, at paragraphs 7.253 and 7.254 of its Response, EWS rejected the prospect of competitive disadvantage to ECSL on the basis that ECSL's principal activity was as a coal trader and the viability of its coal trading business would not be undermined by EWS because ECSL could sell coal to power generators on an un-delivered basis. In effect, EWS was saying that ECSL could choose not to be an E2E supplier and avoid the effect of high coal haulage rates.
B185 This argument is rejected. As described in the Introduction to this part above, ECSL provided a number of services to the owners of power stations including sourcing and trading on coal and providing straight to stock-pile deals (sourcing coal and arranging its transport from source to stockpile as part of an E2E deal). It is not compatible with the Chapter II prohibition or Article 82 EC for EWS to have then used a dominant position to force ECSL to trade under a different business model. The relevant competitive disadvantage includes consideration of ECSL's operations in its legitimate and established capacity as a supplier and, more generally, as an intermediary between generating companies and EWS.
B186 The positive role that ECSL had played in the market is illustrated by BE's attitude towards coal haulage when it first agreed to use ECSL. In a meeting with ORR on 19 April 2002, David Love of BE noted (paragraph 5):
"[ ] before the contract with Enron was entered into BE had considered (in early 2000) different contractual structures, including the DIY option of sourcing its own coal and entering into a coal carriage agreement, however, the E2E deal was chosen as a short term option which took account of BE's early inexperience of coal procurement."
B187 Finally, with respect to ECSL suffering competitive disadvantage, the intent of EWS is also relevant. ORR's primary concern is that:
(a) EWS recognised the competitive threat that ECSL posed to EWS by establishing customer relationships with generating companies and, off the back of these relationships, seeking to facilitate entry into coal haulage by rail; and
(b) EWS feared that this would therefore diminish its ability to "control the market" (see EWS March 2000 Board paper discussed in the discussion on contractual restraints above)."
"B198 For all of the above reasons, it is found that between May 2000 and November 2000, EWS pursued, without objective justification, selective and discriminatory pricing practices that placed ECSL at a competitive disadvantage in its contractual negotiations with two power generators, EME and BE. By impeding the competitive position of ECSL as a customer and a competitor, EWS's actions were capable of distorting the structure of competition in the relevant market. This conduct was contrary to both the Chapter II prohibition of the Act and Article 82 EC."
Is the Tribunal's decision inconsistent with the ORR's decision or findings?
"Although it is true, as the applicant points out, that the fact that an undertaking is in a dominant position cannot disentitle it from protecting its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect its said interests, such behaviour cannot be countenanced if its actual purpose is to strengthen this dominant position and abuse it."
"Thirdly, the applicants rely on the increase in G & C's market share in order to maintain that the practice complained of had no effect and hence that there was no abuse of a dominant position. The Court however considers that, where one or more undertakings in a dominant position actually implement a practice whose aim is to remove a competitor, the fact that the result sought is not achieved is not enough to avoid the practice being characterized as an abuse of a dominant position within the meaning of Article 86 of the Treaty."
"In that respect, there is nothing to prevent discrimination between business partners who are in a relationship of competition from being regarded as being abusive as soon as the behaviour of the undertaking in a dominant position tends, having regard to the whole of the circumstances of the case, to lead to a distortion of competition between those business partners. In such a situation, it cannot be required in addition that proof be adduced of an actual quantifiable deterioration in the competitive position of the business partners taken individually."
"The existence of exclusionary intent does not, however, of itself demonstrate that EWS' discriminatory pricing produced a concrete adverse effect on the market."
and in paragraph 166(d):
"ECSL may still have lost the EME Tender had EWS not discriminated against it; whether that is the case is a question which the Tribunal must decide."
Section 58: relying on it, and disapplying it
The Tribunal's jurisdiction
Lord Justice Patten
Lord Justice Jacob