Newsflash: Limitation of cartel damage claims
Cologne, 13th June 2018
Limitation of cartel damage claims – Federal Court of Justice decides pro-claimant
On 12 June 2018, the Federal Court of Justice (Bundesgerichtshof, BGH) answered a key question in cartel damage proceedings (docket No. KZR 56/16): is the limitation period for so-called “old claims” – that is to say claims which accrued prior to 1 July 2005 and which were not yet time-barred at this time – suspended during ongoing cartel proceedings? For parties which have been damaged through cartels this question is of key importance if they are to assess whether and, if so, in which amount they still have enforceable claims against the cartel members. It is now established: old claims also fall under the suspension of the limitation period of Sec. 33 para. 5 German Act on Restraints of Competition, old version (Gesetz gegen Wettbewerbsbeschränkungen a.F., GWB a.F.) (now Sec. 33h para. 6 GWB).
The press release of the Federal Court of Justice can be found here.
The judgement is of considerable importance to all pending and future cartel damage complaints involving claims from the period prior to 1 July 2005 (e.g. condenser cartel, truck cartel, sugar cartel). It strengthens the position of enterprises which have been damaged through cartels. In many cases, sued enterprises will now no longer be able to successfully plead the statute of limitation, despite the fact that the cartel agreements at issue already lie many years in the past and that the ensuing claims would already have become time-barred in application of the usual limitation provisions and without Sec. 33 para. 5 GWB a.F.
Potentially damaged parties should take the decision of the Federal Court of Justice as cause to assess – or, where applicable, reassess – possible damage claims and risks.