The enery sector is not spared from antitrust violations. On the contrary, in the past years the European Commission has fined several cartel agreements in this sector (e.g. Gas insulated switchgear, Power transformers, Power Cables). The question, whether damage claims for antitrust violations dating from before July 2005 are statute-barred, is therefore also relevant for potential claiments in the energy field. In July 2005, a new norm in the German Law on Restraints of Competition (GWB) entered into force, according to which the statute of limitation does not continue to run after a cartel proceeding has been initiated. Whether this provision (§ 33 sec. 5 GWB 2005) also applies to antitrust violations before that time, was for a long time very controversial. Now the Federal Supreme Court (BGH) has finally put an end to this dispute (judgment of 12.6.2018, KZR 56/16 – Grauzementkartell II): Even in “old cases”, the claims of cartel victims are not time-barred during the cartel authorities and any subsequent judicial appeal proceedings.
The decision was originally expected at the end of February of this year, but then it was postponed to 12.6.2018. It was long-awaited because it is of paramount importance for the private enforcement of antitrust law, even beyond the specific case, for example for damage claims due to the truck, rail or sugar cartel. If the BGH judged otherwise, according to estimates, around half of the potential claims for damages in connection with the so-called truck cartel would have become statute-barred even before the Commission’s decision on this case in September 2016.
In the present case, a building materials dealer had sued a cement producer, which was involved in the gray cement cartel and demanded the declaration of its obligation to pay antitrust damages plus interest. The Regional Court (LG) Mannheim has initially ruled in favour of the claimant (judgment of 30.10.2015, 7 O 34/15 (kart)), but not the Court of Appeal, the Higher Regional Court (OLG) Karlsruhe: The rule introduced in 2005 was in cases, where the antitrust infringement took place before July 2005, not applicable (judgment of 9.11.2016, 6 U 204/15 Kart. (2)).
The Federal Court of Justice’s cartel senate took a different view: § 33 sec.5 GWB 2005 does also apply to those antitrust claims, because according to the general legal concept, if a statute of limitations changes, the new rule shall apply from the date of its entry into force to all claims which have arisen previously, but which are not yet time-barred. The legal provisions in article 169 EGBGB, article 231 § 6 section 1 sentence 1 and 2 EGBGB and article 229 § 6 section 1 sentence 1 and 2 EGBGB (German Civil Code) testify this.
Possibly, the judgment also contains further statements regarding the statute of limitation of claims (in particular, the exact date of the beginning of the suspension of the limitation period). However, this can only be answered after the reasons for the judgment have been published.
The decision might also be of interest in other European countries, because victims of Europe-wide cartels are free to choose the place of jurisdiction (so-called “forum shopping”). After the famous BGH judgment “ORWI” (judgment of 28.6.2011, KZR 75/10) in which the BGH ruled in favour of the claimants in respect of the duties of proof and the passing on damages (so-called “Passing-on-Defense”), the BGH strengthened once again the enforcement of cartel damage claims. This is likely to play an important role in the European competition of jurisdictions regarding antitrust damage claims, because it confirms that Germany belongs to the group of European countries, which are attractive for cartel damage claimants.
