On appeal, the main issue concerns the retroactive application of Article 33(5) of the German Competition Act, which came into force in July 2005. Unsurprisingly, the Court of Appeal regarded a German Supreme Court judgment of June 2018 as the leading authority on the proper interpretation and application of the relevant provisions of German law.
The Court of Appeal will now proceed to review the merits of the claims and has invited the parties to submit briefs that are “no longer than 15 pages”.
In its ruling, the Court of Appeal confirms that the rules of the law applicable to Deutsche Bahn’s damages claims – here: German law – determine the relevant limitation periods as well as the interruption and the suspension thereof. Under German law, a ‘long-stop’ limitation period of ten years and a ‘short-stop’ period of three years apply. On appeal, the main issue concerns the suspension of those limitation periods under Article 33(5) of the German Competition Act (Gesetz gegen Wettbewerbbeschränkungen, "GWB") that came into force in July 2005. According to Deutsche Bahn, that provision triggered an automatic suspension of any running periods of limitation for the duration of the European Commission's investigation into the competition law infringement. The defendants challenged that position and argued that Article 33(5) GWB could not be applied retroactively to damages claims in relation to loss suffered prior to July 2005.
When the case was before the Limburg District Court, the retroactive application of Article 33(5) GWB was still a highly contentious issue under German law. However, the controversy was resolved when on 12 June 2018 the German Supreme Court (Bundesgerichtshof) ruled that the provision applies to all competition damages claims regardless of whether they accrued before or after July 2005, provided that these claims had not yet become time-barred on the day on which Article 33(5) GWB entered into law. Unsurprisingly, the Court of Appeal of Den Bosch regarded that German Supreme Court judgment as the leading authority on the proper interpretation and application of the relevant provisions of German law, “even if the judgment drew criticism in German [legal] literature, as some of the respondents have argued”.
The Court of Appeal will now proceed to review the merits of the claims and has invited the parties to submit briefs. However, the Court stresses that the briefs should be short – “no longer than 15 pages” – and should serve to convey any additional points the parties may wish to make, not to reiterate what the parties have already stated in earlier court briefs.
This article was published in the Competition Newsletter of February 2020. Other articles in this newsletter: