According to a provision in German cartel law, the limitation of a cartel damage claim is suspended from the point in time onwards that investigations have been initiated by a competition authority because of the cartel violation. This rule – § 33h (6) German Act against Restraints on Competition (“GWB”) – was enacted in July 2005. There was since controversy in German jurisprudence and literature on whether this rule also applied to old cases – i.e. cartel violations committed before the new provision entered into force on 1 July 2005.
This question was now subject of a decision of the Cartel Senate of the Federal Court of Justice. A builder’s merchant had filed a claim for compensation against a manufacturer of cement. Between 1993 and 2002, the merchant had paid inflated prices for cement to the manufacturer due to its involvement in a cartel. The defendant had entered into territorial and quota agreements with other cement manufacturers in violation of antitrust law. The manufacturer was fined in 2003. Due to an appeal by some of the cartelists the fine became final only in 2013. If the rule on the suspension of limitation had not applied to old cases, the claim of the merchant against the manufacturer would have fallen under the statute of limitations. The claim would have had to be denied.
However, the ruling of the Federal Court of Justice was clear: The provision applies to old cases! According to a landmark decision of 12 June 2018, § 33h (6) GWB applies to cases which are based on previous violations of antitrust law that were not yet time-barred on 1 July 2005. The Senate explains its judgement with a general legal concept that dates back to the Supreme Court of the German Reich and has also been codified in several other laws: In case of a change in legal framework regarding the statute of limitation of a claim, the new rule – from its entering into force – generally applies to all cases that have arisen beforehand and were not time-barred by this time.
This landmark decision is of fundamental importance and will strengthen Germany as an international forum for cartel damage claims.
(15 June 2018)