Invensys PLC and Others v Protea Automaton Solutions (Pty) Limited, In Re: Protea Automaton Solutions (Pty) Limited v Invensys PLC and Others (019315) [2015] ZACT 19 (12 March 2015)

Invensys PLC and Others v Protea Automaton Solutions (Pty) Limited, In Re: Protea Automaton Solutions (Pty) Limited v Invensys PLC and Others (019315) [2015] ZACT 19 (12 March 2015)

The Tribunal found that Protea's supplementary affidavit did not comply with the exception order and failed to clarify or make coherent the case it wished to advance. The conduct now relied upon by Protea, specifically the terms of the Customer-First Agreement, had not been previously referred to the Competition Commission and was not investigated by it. Therefore, the Tribunal lacked jurisdiction to consider Protea's case under sections 4(1)(b)(ii), 5(1), and 8(d)(ii) based on the terms of the Customer-First Agreement. Furthermore, Protea failed to provide sufficient detail regarding the relevant product and geographic markets, the nature and manner of exclusion, and the alleged...

Citation
[2015] ZACT 19
Parties
Applicant: Invensys PLC; Applicant: Invensys Systems (UK) Limited; Applicant: Eurotherm Limited; Respondent: Protea Automation Solutions (Pty) Limited; Applicant: Protea Automation Solutions (Pty) Limited; Respondent: Invensys PLC; Respondent: Invensys Systems (UK) Limited; Respondent: Eurotherm Limited; Respondent: EOH Holdings Limited; Respondent: EOH Mthombo (Pty) Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
12 March 2015
Case Number
019315
Procedural Posture
Dismissal Application / Order Following Hearing of Dismissal Application
Outcome
The dismissal application is granted. Protea's complaint referral is dismissed for failure to comply with the Tribunal's exception order and for lack of jurisdiction over new conduct not referred to the Competition Commission.
Judges
Yasmin Carrim, Andiswa Ndoni, Fiona Tregenna
Legal Topics
Complaint Referral, Market Allocation, Vertical Agreements, Dominance, Exception Application
Competition Law Complaint Referral Market Allocation Vertical Agreements Dominance Exception Application

Case Brief

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Parties

Invensys PLC

Applicant

Invensys Systems (UK) Limited

Applicant

Eurotherm Limited

Applicant

Protea Automation Solutions (Pty) Limited

Respondent

Protea Automation Solutions (Pty) Limited

Applicant

Invensys PLC

Respondent

Invensys Systems (UK) Limited

Respondent

Eurotherm Limited

Respondent

EOH Holdings Limited

Respondent

EOH Mthombo (Pty) Limited

Respondent

Procedural Posture

Dismissal Application / Order Following Hearing of Dismissal Application

Legal Issues

  1. 1 Whether Protea's supplementary affidavit complies with the Tribunal's exception order and clarifies its complaint referral adequately.
  2. 2 Whether the Tribunal has jurisdiction to consider new conduct alleged by Protea that was not previously referred to the Competition Commission.
  3. 3 Whether Protea has identified the relevant product and geographic markets and the manner in which competition has been harmed.

Ratio Decidendi

The Tribunal found that Protea's supplementary affidavit did not comply with the exception order and failed to clarify or make coherent the case it wished to advance. The conduct now relied upon by Protea, specifically the terms of the Customer-First Agreement, had not been previously referred to the Competition Commission and was not investigated by it. Therefore, the Tribunal lacked jurisdiction to consider Protea's case under sections 4(1)(b)(ii), 5(1), and 8(d)(ii) based on the terms of the Customer-First Agreement. Furthermore, Protea failed to provide sufficient detail regarding the relevant product and geographic markets, the nature and manner of exclusion, and the alleged...

Court Disposition

The dismissal application is granted. Protea's complaint referral is dismissed for failure to comply with the Tribunal's exception order and for lack of jurisdiction over new conduct not referred to the Competition Commission.

Orders

  • The complaint referral brought by Protea Automation Solutions (Pty) Limited is dismissed.
  • No order as to costs.