The enforcement of antitrust law under private law through antitrust claims for damages by cartel victims is becoming increasingly important in practice. More than a hundred antitrust claims for damages worth hundreds of millions of euros are pending in Germany alone, particularly from the cement, rail, sugar and truck cartel. Antitrust claims for damages and open legal questions in this regard have meanwhile also reached the Federal Court of Justice. In its decision of June 12, 2018 (Az: KZR 56/16), the Federal Court of Justice decided the controversial issue of the statute of limitations for a cartel damage claim in favor of the cartel victims.
Antitrust claims for damages and the statute of limitations – What is it about?
According to German law, claims for damages usually expire within three years from the end of the year in which the claim arose and the injured party became aware of his claims, but no later than ten years. But what if the injured party only becomes aware of claims for damages under antitrust law after ten years? This can easily be the case with antitrust claims for damages because it often takes years for antitrust violations to be uncovered. The cement cartel, for example, was - as far as is known - operated from 1992 to the beginning of 2002, but the corresponding fine proceedings were not completed until 2016. Unfortunate for the injured party, because in 2016 claims for damages under antitrust law would have long since expired.
However, since July 1, 2005, Section 33 (5) GWB has been a provision according to which the statute of limitations for claims for damages under antitrust law is suspended, i.e. their expiry is interrupted if an antitrust authority takes measures to investigate, in particular initiates proceedings for an infringement of antitrust law. This provision would be extremely beneficial for the victims of the cement cartel, because the fine proceedings initiated would suspend the statute of limitations. However, there is a big but: the cement cartel ended in 2002. This regulation, which only came into force in 2005, did not apply at all. Does this statute of limitations also prevent antitrust claims for damages that arose before 2005? Or to put it another way: How is the temporal applicability of Section 33 (5) GWB to be assessed? Have the victims of the cement cartel had bad luck?
The decision of the Federal Court of Justice of June 12, 2018 (Az: KZR 56/16)
No, they haven't, thanks to the decision of the Federal Court of Justice. In its decision of June 12, 2018, the Federal Court of Justice clearly stated that the statute of limitations for claims for damages under antitrust law is suspended by official proceedings, for example because of the imposition of fines, and claims for damages under antitrust law are also covered by Section 33 (5) GWB that created on July 1, 2005. This of course applies with the restriction that claims for damages under antitrust law must not have become statute-barred on July 1, 2005, since it is no longer possible to suspend the statute of limitations for a claim that is already statute-barred.
Why did the Federal Court of Justice have to be bothered at all? The Karlsruhe Higher Regional Court (judgment of November 9, 2016 – 6 U 204/15 Kart) had limited the temporal applicability of the statute of limitations described above to antitrust claims for damages that arose after July 1, 2015. This should follow from the wording of the provision, which only explicitly refers to the provision for damages (Section 33 (3) GWB), which was also introduced on July 1, 2005. The Federal Court of Justice did not follow this argument. On the one hand, the wording is not so clear, because elsewhere reference is also made to other compensation provisions that were in force before July 1, 2005. On the other hand, the Federal Court of Justice used a legal-political argument. The new regulations of 2005 were intended to promote private law enforcement of antitrust law, so that they should be interpreted broadly.
What does this mean for your antitrust claims for damages?
A change in the statute of limitations applies to all antitrust claims pending from the past, regardless of when they arose and which statute of limitations previously applied, as long as they were not yet statute-barred on July 1, 2005. According to the Federal Court of Justice, this has always been the case. The legislature did not want to deviate from this with the introduction of Section 33 (5) GWB. Finally, the principle of effective enforcement of antitrust law applies. All other courts that have to decide on antitrust claims for damages are bound by this decision of the Federal Court of Justice. Many antitrust claims for damages can therefore still be asserted or pursued - also because of other cartels that the antitrust authorities are currently investigating.
What is important to you now?
Decisive for the question of the suspension of the statute of limitations is the initiation of the cartel proceedings by the Federal Cartel Office. In particular, this can be the search of one of the cartel members. The suspension of the statute of limitations ends or the statute of limitations begins to run as soon as six months after the fine has been issued or after another termination of the procedure. Before this 6-month period expires, you must therefore take further measures to prevent the statute of limitations, such as applying for a court order, in order to maintain your antitrust claims for damages. If, on the other hand, the European Commission has initiated the antitrust proceedings, the point in time at which the proceedings are initiated must be determined differently. This may be the time when an inspection is ordered. The question of when the knowledge-independent 10-year period expires depends on the emergence of the antitrust claims for damages. When this is the case is controversial and must therefore be checked for your specific case.
New regulation of the statute of limitations for antitrust claims
At the end of 2018, a new statute of limitations (Section 33h GWB) for claims for damages under antitrust law came into force. Thereafter, the limitation period is five years. It begins at the end of the year in which the antitrust violation ended at the earliest. This new statute of limitations clarifies many questions about the statute of limitations. However, the question of the temporal scope of application of this provision may also arise in the future.
