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ฉบับพิเศษ ประจำ�ปี 2564

articulates that Member states-domiciled defendants can be used as an ‘anchor
defendant’, with any and all other defendants, regardless of where they are domiciled.

In Provimi, it was held to be arguable that, where a defendant company is a member
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of an economic unit or ‘undertaking’, and that company implements, however innocently,

an anticompetitive agreement entered into by another company within the same
‘undertaking’, the defendant company can be held liable for infringement of Article
101(1) TFEU committed by the second company. However, the claimant must still

establish that the English domiciled anchor defendant engaged in some form of (albeit
innocent) participation in, or implementation of, the cartel.

By the effect of the Skanska decision, it could be considered that there is no
need for the claimant to prove the actual involvement of the Member states-domiciled

company since according to the notion of a single economic entity, the infringement is
deemed to be committed by the undertaking; therefore constituents of such economic
entity are jointly and severally liable. Consequently, claimants can bring an action for

damages against Member States-domiciled company as an anchor defendant, by the only
to establish that it belongs to the same economic entity as the addressee of the
Commission decision. The ability conferred to the claimants as such is not limited
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only in the UK, but similar approaches can also be applied in other EU Member States
jurisdictions.

Even though the departure from the EU of the UK is imminent due to the effect
of the Brexit, the interpretation in Provimi could still be considered as a logical reference.

The reason being is that British precedent provides practical significance which the
judiciary of Ireland, who will remain in the EU, could refer to as guidance. In addition,
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it is possible for the methodology in Provimi to be relied on by Cyprus, one of the EU
Member States whose jurisdiction is common law influenced substantially by the English
legal system.
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62 Provimi Ltd v Aventis Animal Nutrition SA [2003] EWHC 961 (Comm).
63 Andrew Leitch Skanska: are jurisdiction challenges now an impossible undertaking, supra (n.59), p.102
64 Patrick Fitzgerald, The Status of British Law in Independent Ireland: a Guide for Post-Brexit Britain?
(2017) Irish Journal of European Law Vol.20 issue.1, p.31-32
65 Nicolas Kyriakides, Civil procedure reform in Cyprus: looking to England and beyond (2016) Oxford

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