On 16 November 2016, the District Court of Limburg rendered a final judgment in the Dutch prestressing steel case.
The Court ruled that the damages claims are time-barred under German law and therefore dismissed all claims against the defendant prestressing steel producers who appeared in the proceedings and filed defences including, inter alia, a defence of statutory limitation. However, the claims were granted in their entirety against two defendants who failed to appear in the proceedings.
In 2010, the European Commission fined 17 producers of prestressing steel for having infringed European competition law by participating in a price-fixing and market-sharing cartel. On 31 December 2013, several entities of the Deutsche Bahn group of companies brought civil proceedings in the District Court of Limburg, the Netherlands. They claimed that the defendant producers are jointly and severally liable for all loss suffered due to the infringement. In a judgment of 25 February 2015, the Court accepted jurisdiction to rule on damages claims against all alleged cartel participants, as a Dutch 'anchor' was amongst the defendants [see our April 2015 newsletter article]. After that judgment, the defendants filed several additional defences.
According to defendant DWK Drahtwerk Köln GmbH ("DWK"), the Court should have stayed the proceedings and subsequently declared the writ of summons void as it had not been correctly served upon DWK. Referring to European case law, the Court reiterated that the national procedural rules of the competent court must be applied, i.e. in this case: the Dutch rules of civil procedure. The Court ruled that as DWK voluntarily appeared in the proceedings and DWK's interests were not unreasonably prejudiced, the nullity of the writ of summons was 'healed' when DWK appeared before the Court.
The Court then turned to the defence of statutory limitation, which had been invoked by all defendants who appeared in the proceedings. Pursuant to Article 7 of the Act regarding Conflict of Laws on Torts (Wet conflictenrecht onrechtmatige daad), the rules of the law applicable – in this case: German law – determine the limitation periods for damages claims as well as the interruption and the suspension thereof. Under German law, a long-stop limitation period of 10 years and a short-stop period of 3 years apply. The defendants argued – and Deutsche Bahn did not dispute – that the long-stop period started to run no later than September 2002. Therefore, in the absence of a valid act of interruption or suspension, Deutsche Bahn was out of time when it issued the proceedings on 31 December 2013.
Referring to Article 33(5) of the German Competition Act (Gesetz gegen Wettbewerbbeschränkungen, hereinafter "GWB") that came into force in July 2005, Deutsche Bahn argued that the limitation period had been suspended by operation of law for the duration of the European Commission's investigation into the competition law infringement. However, the Court sided with the defendants and held that, in the absence of specific transitional provisions, Article 33(5) GWB could not be applied retroactively to damages claims in relation to loss suffered prior to July 2005. The Court acknowledged and discussed a 2014 judgment of the Higher Regional Court of Düsseldorf, in which a German appeal court had applied Article 33(5) GWB retroactively, but did not find that court's reasoning persuasive. At first blush, it may seem remarkable that a Dutch court of first instance would disagree with a German appeal court on the proper application of a provision in the German Civil Code. The retroactive application of Article 33(5) GWB by the Higher Regional Court of Düsseldorf is, however, subject to significant controversy. See for a recent decision in which another German appeal court ruled that Article 33(5) GWB cannot be applied retroactively the Higher Regional Court of Karlsruhe, 9 November 2016, 6 U 204/15 Kart (2), with further references to case law and literature on the issue.
This article was published in the Competition Law Newsletter of January 2017. Other articles in this newsletter:
1. General Court rules on the concept of a single and continuous infringement in the smart card chips cartel case
2. Envelope maker's cartel fine annulled in first successful European settlement appeal
3. ACM established guiding principles in relation to sustainability arrangements
4. Belgian Competition Authority confirms that the acquisition by a dominant player of a small competitor is not automatically an abuse of a dominant position