The highest court in Germany has ruled in a cement cartel case that its “Suspension Provision”, adopted in 2005, can be applied to cases before that date. This provision was introduced into German competition law in July of 2005, and mandates that the limitation period for damage claims is suspended during the investigation of a competition authority (“Suspension Provision”). Ever since, it was unclear whether the Suspension Provision applies only to infringements committed after the new provision came into force, or whether it has retroactive effect. In a decision of June 12, 2018, the German Federal Supreme Court (“BGH”) confirmed that the Suspension Provision applies to damage claims relating to infringements committed prior to July 2005.
Damage claims are subject to the statute of limitation. Under German law, the “standard” limitation period is five years. The five year period starts once the infringement has ceased and the claimant knows or can be reasonably expected to know of his claim.
Ever since the Suspension Provision was adopted, its scope of application was unclear. Does the suspension only apply to infringements committed after the new law was adopted in July 2005? Or does the Suspension Provision have a retroactive effect?
The BGH has now resolved the dispute in a decision adopted on June 12, 2018. The case involves a cement cartel investigated and fined in 2003 by the Federal Cartel Office. The plaintiff claims damages for infringements committed between 1993 and 2002. The lower courts, including the Higher Regional Court in Karlsruhe, rejected the claims. They argued that the Suspension Provision does not apply as the infringements were committed prior to July 2005, and that the claims are therefore time-barred.
In its decision of June 12, 2018, the BGH disagrees and confirmed that the Suspension Provision does apply to infringements committed prior to July 2005. The decision is not yet published, but the BGH’s main arguments can be inferred from the BGH’s press release. The BGH essentially relies on a long-established general principle of German law. Under this general principle, if the limitation period of a claim is amended, the new provision applies as of its entry into force, as long as the claim is not yet time-barred at the time.
The decision has a major impact for all follow-on damage claims involving claims for infringements committed prior to July 2005. The most prominent example is the truck cartel, which ran from 1997 to 2011. Following the BGH’s decision, it is now settled that this suspension applies to potential damage claims for the entire cartel period, including the period from 1997 to 2005. This decision will also have relevant impact on other litigated cartel cases, such as the rail and sugar cartels.
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