On 12 June 2018, the German Federal Court of Justice ("FCJ") delivered a highly anticipated judgment that clarified that the suspension of the limitation period for cartel damages claims also applies to claims that arose prior to the entry into force of the new provision setting out the suspension.
The case giving rise to this ruling concerned damages claims against grey cement producers. The claimant, a trader of building materials, filed for damages against a producer of grey cement on the basis of the defendant's participation in the grey cement cartel between 1993 and 2002, for which it was fined by the Bundeskartellamt (the German Federal Cartel Office) in 2003. The judgment of the Regional Court of Mannheim, which initially granted the claim, was overturned by the Higher Regional Court of Karlsruhe on the grounds that the claim was time-barred (see VBB on Competition Law, Volume 2017, No.1, available at vbb.com).
The provision at issue, section 33(5) of the German Act against Restraints of Competition in the version dated 7 July 2005, states that the limitation period for a claim for damages pursuant to paragraph (3) of the same provision (which lays down the claim for damages against a cartel infringer) shall be suspended if and when cartel proceedings are initiated by a competition authority. The issue at hand was whether this provision, which came into force on 1 July 2005, applies retroactively to damages claims based on infringements which occurred prior to its entry into force. The majority of German courts had ruled in favour of such a retroactive effect (see VBB on Competition Law, Volume 2017, No.6 and No.9; Volume 2015, No.4, available at vbb.com).
The FCJ confirmed this view. The full decision is not available yet, but according to a press release of 12 June 2018, the reasoning of the FCJ follows the general legal concept concerning limitation periods, pursuant to which claims arising prior to the date of entry into force of a new provision fall under the new legal regime, provided that they were not yet time-barred at that moment.
This ruling will extend the possibility of bringing damages claims, namely for past infringements. Before the FCJ's decision, different courts in Germany had issued opposing decisions on the issue. Shortly before the FCJ's ruling, the Regional Courts of Stuttgart and Hannover granted three distinct follow-on damages claims for truck purchases in judgments dated 16 April 2018 and 30 April 2018, joining the view of the majority of German Higher Regional Courts in the matter. The claims followed from the infringement decision of the European Commission of July 2016 establishing the participation of MAN, Volvo/Renault, Daimler, Iveco and DAF in a price-fixing cartel between 1997 and 2011 (see VBB on Competition Law, Volume 2016, No.7, available at vbb.com). These decisions are in line with the outcome of the FCJ's ruling which now creates legal certainty on the matter.
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