Federal Court Of Justice Decides On Admissibility Of Declaratory Actions And On Limitation Periods In Antitrust Follow-On Proceedings

On June 12, 2018, in its decision regarding the so-called grey cement cartel (case no. KZR 56/16), the German Federal Court of Justice (Bundesgerichtshof-BGH) resolved fundamental legal questions on antitrust damages that previously had been controversial among experts, thus putting an end to the legal uncertainty caused by the previous inconsistent case law in Germany. The decision now announced by the BGH alleviates the assertion of claims for damages under antitrust law and continues the plaintiff-friendly course recently emerged in German court rulings.

The decision was expected with particular anticipation with regard to the limitation period for damage claims. In addition, the BGH has now also taken a stand on procedural questions.

Today's BGH decision was preceded by years of litigation between a building materials dealer and a cement manufacturer. The latter had participated in anticompetitive territorial and quota agreements in the so-called grey cement cartel. The plaintiff's legal predecessor had purchased cement from the defendant between 1993 and 2002 and is now claiming damage compensation in light of the delivery prices that were achieved in violation of antitrust law.

The Regional Court of Mannheim and the Higher Regional Court of Karlsruhe had already been involved in the case before it was escalated to the BGH. In 2016, the Higher Regional Court of Karlsruhe published a much-noticed appeal decision (judgment of 9 November 2016, case no. 6 U 204/15 (Kart)), in which it had already dealt in depth with legal questions regarding antitrust damages that were controversial at the time. Both parties appealed against this decision so that the BGH now decided in last instance.

The plaintiff had left the amount of his claims unspecified and instead filed for declaration that the defendant cement manufacturer was responsible for damages incurred due to the defendant's participation in the cartel and the resulting price distortions. According to established case-law, such a declaratory action is only admissible if the damage is still in development and the injured party is therefore not able to quantify the exact amount of damage. In the opinion of the Higher Regional Court of Karlsruhe, there should be an exception to this principle at least in cartel matters, as the calculation of cartel damages is generally very complex and involves disproportionate time and cost. In view of this expenditure, the injured party may initially only...