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October 9, 2018

Final Chord in Grey Cement Antitrust Case: German Federal Court of Justice (BGH) answers to questions of principle

EuZW (European Journal of Business Law)

Directive 2014/104/EU (Cartel Damages Directive), which was implemented by the German legislator to the ARC, led to far-reaching relief for cartel injured parties in the enforcement of their claims for damages. Against the background of these European requirements, the German Federal Court of Justice (BGH) had to assess the liability for damages of members of the grey cement cartel operating from 1993 to 2002. By judgment of 12.06.2018 (Ref. KZR 56/16) the Court dealt, among other things, with the intertemporal applicability of ARC regulations. Particularly with regard to the question whether a tolling provision introduced in 2005 by the 7th amendment to the ARC has an effect on the limitation period of antitrust damage claims that had arisen previously, a decision by the highest court had long been awaited. The article discusses particularly controversial legal questions on which the BGH had to rule. In the course, Reichl assesses the answers of the highest judges in the light of recent opinions in the legal community.

Some of the Court’s statements seem to be rather case-by-case to the author, however. At the same time, other findings should be applicable on similar civil damage procedures and cases. Especially important he rates the Court’s decision to apply the suspension of the limitation period regulated by § 33 Abs. 5 GWB-2005, the old Law on Restrictions of Competition dating of 2005. According to Reichl, this has got a particular signal effect. In sum, he concludes that the trend in favor of those who have suffered damage due to a cartel continues.

(source: Reichl, EuZW 2018, 804-811, Schlussakkord im Grauzementkartell)