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Federal Court of Justice (BGH) strengthens cartel plaintiffs - Cartel proceedings also suspend limitation periods for old claims

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Germany

In a landmark decision yesterday (judgement of 12 June 2018, KZR 56/16 - Grey cement cartel II) the Federal Supreme Court further strengthened the rights of plaintiffs who have suffered damage as a result of the cartel. In the long-awaited decision, the BGH was faced with the question of whether claims that arose before July 2005 can also only become statute-barred after the fine proceedings have been finally terminated. The BGH affirmed this and thus created legal clarity in a number of proceedings.
The BGH decided in the case of an action for damages, which asserted claims from the so-called cement cartel from the years 1993 to 2002. The fine decision against the defendant had only become legally binding by a decision of the BGH in 2013 - at a time when, according to the defendants' submissions, the claims had long been time-barred.
 
Applicability of Section 33 (5) GWB also to old claims
 
The background to the decision of the Federal Court of Justice is the 7th amendment to the ARC from 2005, which introduced a provision according to which the initiation of cartel proceedings inhibits the expiry of the limitation period for cartel damage claims during the entire duration of the cartel proceedings and also for six months beyond that, Section 33 (5) GWB 2005. After the Mannheim Regional Court, in agreement with a number of other courts of first and second instance, had initially assumed that Section 33 (5) GWB 2005 was also applicable to old claims, the Karlsruhe Higher Regional Court in the second instance had upheld the defendants and regarded all claims as statute-barred.
The Federal Court of Justice has now clarified that the limitation period for old claims is also suspended up to six months after the respective cartel proceedings have been finally concluded if they were not yet time-barred on 1 July 2005. This is in line with the general legal principle that in the event of a change in the law on limitation periods, the new rules will apply as soon as they come into force to claims that are not yet statute-barred on that date. In other words, even old claims cannot become statute-barred until the official proceedings have been legally concluded: In view of the usually long period until cartel agreements are discovered and the again long period until a legally binding decision is reached in the cartel proceedings, this means legal certainty for many plaintiffs.
 
Impact on other proceedings
 
The decision is also likely to have been received with relief by plaintiffs in other cartel damages proceedings, such as in the truck cartel, since the question of limitation had also arisen in this case. For potential cartel victims, it continues to apply that they benefit from the restraining effect as long as participation in the cartel has not been legally established in the fine proceedings.

 
Further information
 
Press release of the BGH of 12.6.2018 Pressemitteilung des BGH vom 12.6.2018
OLG Karlsruhe, judgement of 9.11.2016, 6 U 204/15 OLG Karlsruhe, Urt. vom 9.11.2016, 6 U 204/1

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