TACHING PETROLEUM CO LTD v. MEYER ALUMINIUM LTD

TACHING PETROLEUM CO LTD v. MEYER ALUMINIUM LTD

Meyer failed to prove on the balance of probabilities, with the requisite cogency, that collusion between Taching and Shell was the only plausible explanation for the parallel List Price adjustments; the credible and plausible independent explanations of Taching (following Sinopec) and Shell (internal independent pricing policy and arms-length discounts) prevail; alleged contravention not established and Meyer ordered to pay costs (post-pleadings indemnity basis).

Citation
[2021] HKCT 2
Parties
Plaintiff (cta 1/2018): Taching Petroleum Company Limited; Plaintiff (cta 2/2018): Shell Hong Kong Limited; Defendant (both Actions): Meyer Aluminium Limited
Court
Competition Tribunal
Jurisdiction
Hong Kong
Judgment Date
12 October 2021
Case Number
CTA1/2018
Procedural Posture
Competition Tribunal Action (defence Transferred Under S.113(3) of the Competition Ordinance, Cap 619) / Trial Judgment
Outcome
Alleged contravention not established; Meyer’s defence of collusion dismissed
Legal Topics
Price Fixing, Concerted Practice, First Conduct Rule, Burden and Standard of Proof, Costs
Source Language
EN
Competition Law Antitrust Civil Litigation Price Fixing Concerted Practice First Conduct Rule Burden and Standard of Proof Costs

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Parties

Taching Petroleum Company Limited

Plaintiff (cta 1/2018)

Shell Hong Kong Limited

Plaintiff (cta 2/2018)

Meyer Aluminium Limited

Defendant (both Actions)

Procedural Posture

Competition Tribunal Action (defence Transferred Under S.113(3) of the Competition Ordinance, Cap 619) / Trial Judgment

Legal Issues

  1. 1 Whether Taching and Shell entered into an agreement or concerted practice to fix, maintain or control Net Prices for Meyer via List Price adjustments
  2. 2 Whether parallel pricing alone can prove collusion absent evidence of communications
  3. 3 Whether any infringement would be a restriction 'by object'

Ratio Decidendi

Meyer failed to prove on the balance of probabilities, with the requisite cogency, that collusion between Taching and Shell was the only plausible explanation for the parallel List Price adjustments; the credible and plausible independent explanations of Taching (following Sinopec) and Shell (internal independent pricing policy and arms-length discounts) prevail; alleged contravention not established and Meyer ordered to pay costs (post-pleadings indemnity basis).

Court Disposition

Alleged contravention not established; Meyer’s defence of collusion dismissed

Orders

  • Meyer to bear the costs of Taching and Shell
  • Costs of proceedings after close of pleadings to be on indemnity basis