The German Federal Supreme Court (BGH, file no KZR 56/16) ruled in its decision of 12 June 2018, that had been long expected for, that cartel damage claims of business entities, that suffered damages from a cartel, were suspended from being time-barred by pending antitrust proceedings before the Federal Antitrust Authority, though the antitrust infringement had been before the date, on which such rules on limitation for antitrust violation came into force.
That sounds cruelly technical but has an important economic impact: The rules on the limitation of antitrust infringements came into force on 1 June 2005. If a case were pending at the Federal Antitrust Authority (or the EU Commission) at that date, such claims would not be affected by the time-bar, though the infringement was before date of effectiveness of these rules, says BGH.
The decision has another impact: The same mechanism applies to interest! Thus, antitrust damages are subject to interest to 4% from the date of the antitrust infringement, even though the infringement occurred before the date of effectiveness of the rules on interest on cartel infringements.
The antitrust community expected this decision to fuel a gold rush in antitrust litigation, as major criteria now are clarified in the sense of cartel damage claimants. The most recent decisions of the Regional Court of Stuttgart (decisions of 19 June 2018, file no. 30 O 33/17 on fire-fighting vehicles) and the Appeals Court of Berlin (decision of 28 June 2018 – file no. 2 U 13/14 re cartel on railroad tracks and track switches) as well as Appeals Court of Munich (decision of 28 June 2018 – file no 29 U 2644/17 re cartel on railroad tracks and track switches) confirmed the expectations of the community and even took up the line of BGH as set out above.
Christoph Just LL.M. is Partner in the Frankfurt-based law firm Rechtsanwaltsgesellschaft mbH. His practice is focused on litigation and arbitration as well as on auf regulatory (Environment, Energy, Public Procurement). In these fields, he is well-published and holds lectures in law schools. He is registered specialized lawyer in tax law and administrative law. His firm is well-known for its antitrust expertise and widely represents parties in antitrust damage claim, mainly re truck cartel, bathroom interior cartel, potato cartel and flour cartel cases.
