On April 4, 2019, the Stuttgart Court of Appeals confirmed the Stuttgart Regional Court’s judgment that found Daimler liable for damages as a result of its participation in the Trucks Cartel.[1] In particular, the Stuttgart Court of Appeals held that the limitation period for damages arising from the Trucks Cartel had been suspended as of the European Commission’s (“EC”) dawn raid of the defendant’s premises in 2011.
BACKGROUND
The German rules applicable prior to the revision of the ARC in June 2017[2] provided for a suspension of the limitation period for cartel damage claims once the FCO initiated proceedings against a cartelist. As no formal act or decision is required by the FCO to initiate such proceedings under the ARC, courts commonly considered the FCO’s first actions against potential perpetrators or third parties to determine the start of proceedings and therefore the beginning of suspension. Actions in this regard included, inter alia, the issuing of a search order (in preparation for a dawn raid) or a Request for Information (“RFI”).
However, it was unclear whether a similar approach could be adopted with cartel damage claims arising from an investigation by the EC. In contrast to the FCO, the EC initiates cartel investigations formally by adopting a decision under Article 2 of Commission Regulation (EC) No. 773/2004.[3] Because the EC can conduct dawn raids, issue RFIs, etc., even before adopting such a formal decision, there are often long delays (sometimes years) between the EC’s initial actions against potential perpetrators and the start of formal proceedings. Consequently, claimants have tended to argue that the suspension of the limitation period would start with the EC’s first investigative measure. Defendants, meanwhile, commonly advocate in favor of the beginning of formal proceedings being the appropriate starting point.
STUTTGART COURT OF APPEALS’ DECISION
In the Trucks Cartel, the EC dawn raided the defendant’s premises in 2011, but did not adopt the formal decision to open proceedings until 2014. The Stuttgart Court of Appeals followed the claimants’ line of argument and held that the suspension of the limitation periods started with the dawn raids in 2011. Had the court decided that the start of the suspension depended on the EC’s formal decision, a large part of the claimants’ damages would have been time-barred. Instead, the court opted for a claimant-friendly interpretation, but also emphasized that the FCJ will have the final say on the issue.
The decision is currently on appeal before the FCJ. Claimants may be optimistic that the FCJ will uphold the Stuttgart Court of Appeals’ interpretation in light of the CJEU’s recent judgment in Cogeco.[4] There, the CJEU held that EU competition rules and the principle of effectiveness preclude a national limitation rule that does not include any possibility of suspending the limitation period during a competition authority’s proceeding.
[1] Trucks Cartel (2 U 101/18), Stuttgart Court of Appeals judgment of April 4, 2019, not yet published. A press release is only available in German here.
[2] The Ninth Amendment to the ARC implemented, inter alia, the provisions of the Damages Directive Directive 2014/104/EU.
[3] Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty.
[4] Cogeco Communications Inc. v Sport TV Portugal SA and others (Case C-637/17) ECLI:EU:C:2019:263.