On December 6, 2022, the Frankfurt am Main Court of Appeal dismissed an action to declare the existence of contribution claims against other cartel members. The action was filed in an attempt to suspend the limitation periods of upfront contribution claims that arose at the moment when the purchasers of the cartel suffered harm.
On June 24, 2015, the European Commission (“Commission”) found that the parties to the proceedings participated in cartels in the production and distribution of food packages between 2002 and 2007. The plaintiff’s appeal against the Commission’s decision was rejected on October 22, 2020.
In Mai 2020, the plaintiffs, two cartel members and their parent companies, filed a declaratory action against another cartel member requesting the court to declare the defendant and the plaintiffs are jointly and severally liable and, as such, the defendant is liable to proportionately contribute to any damages paid to potential injured claimants. The plaintiffs based their legitimate interest in the declaratory judgment on the need to suspend the limitation periods of their contribution claims. They put forward two potential bases for their claim for compensation: the standalone compensation claim that arises when the injured party has suffered the harm (Section 426(1) of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”) and, alternatively, the contribution claim that arises once the injured claimant has been compensated by a joint and severally liable party (“cessio legis”) (Section 426(2) BGB).
In 2020 and 2021, respectively, purchasers of the cartel filed damages actions against the plaintiffs and other cartel participants before the Cologne and Hanover Regional Courts. So far, the plaintiffs have not been ordered to compensate those purchasers.
Initially, the Regional Court of Frankfurt had declared the existence of the defendant’s liability for contribution based on the cessio legis claim. On appeal, the Frankfurt am Main Court of Appeal dismissed the claim based on two grounds.
First, the Frankfurt am Main Court of Appeal held that the standalone compensation claim was time-barred under the general statute of limitation because the plaintiffs had obtained all necessary information to sue the other cartel members at the latest once the EC decision was published in 2015.
Second, the contribution claim derived through the cessio legis was held to be inadmissible and unfounded because only when the plaintiff compensates an injured claimant the plaintiff will derive the (contribution) claim against the defendants following the statutory subrogation. Prior to that, only the injured purchasers are entitled to the claim. The court held that only the materially entitled claim holder and not the potential future claim holder could suspend the statute of limitation by filing a declaratory action.
Even though the Frankfurt am Main Court of Appeal acknowledged that cartelists generally cannot suspend the limitation periods of contribution claims unless they conclude tolling agreements with the remaining cartel members, it did not consider this outcome to be inequitable, but instead rejected the plaintiff’s attempt to suspend the contribution claim with a declaratory action. By contrast, for claims that arose after December 26, 2016, the Damages Directive (implemented through the 9th Amendment of the Act against Restraints of Competition “ARC”) ensures that contribution claims of jointly and severally liable cartelists will not start to run before the injured claimant was compensated (Section 33h(7) and Section 187 ARC).
 Retail Food Packaging, Commission decision of June 24, 2015, Case AT.39563.