September 25, 2022

Volume XII, Number 268

Advertisement

September 23, 2022

Subscribe to Latest Legal News and Analysis

September 22, 2022

Subscribe to Latest Legal News and Analysis

Limitation Periods for Antitrust Damages Actions in The European Union

The last decade or so has seen a marked increase in antitrust damages actions brought before the national courts of the EU Member States. As things currently stand, such actions are governed by the various national laws of the 28 Member States. This patchwork of differing national rules further complicates the already complex underpinning of antitrust damages actions. In order to facilitate the initiation of such actions, the European institutions have recently agreed upon a new directive that provides for a minimum degree of harmonisation of certain rules governing actions for damages under national laws (the Damages Directive). Its promulgation is now just a formality.

One of the key, yet often overlooked, legal considerations in antitrust damages actions is the issue of limitation periods. For a defendant, a careful assessment of this issue is core to any cartel defence strategy and must be considered at the time of administrative proceedings, as it can have huge implications on the decision of whether or not an appeal should be considered (see the Morgan Crucible proceedings before the English courts, discussed below).

For a claimant, it is equally crucial in order to ensure that a claim is not time-barred and, as a result, left with no legal remedy. An action brought out of time will fail, no matter how robust the claim is perceived to be. A complication arises in this context, however, given the often cross-border nature of antitrust infringements, which means a claim may be brought in a number of Member States, each of which have different rules in place with respect to the length and calculation of limitation periods.

Calculating a given limitation period will often be a relatively straightforward exercise but complexities do sometimes arise. This is illustrated by the Morgan Crucible cases in the United Kingdom, which only recently resolved key questions relating to the calculation of limitation periods for the purposes of bringing an action before the English courts.

Against this backdrop, this special report looks at the limitation periods in those EU Member States that are arguably at the forefront of developments in antitrust damages actions: France, Germany, Italy, the Netherlands and the United Kingdom. In particular, this report analyses the complexities relating to limitation periods, as illustrated by the UK courts’ attempts to grapple with the matter in a complex line of cases, ending up before the UK Supreme Court. This special report also highlights potential problem areas with respect to the limitation periods that are not addressed by the Damages Directive and may adversely affect the interplay between the public and private enforcement system in the European Union.

© 2022 McDermott Will & EmeryNational Law Review, Volume IV, Number 183
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Martino Sforza, McDermott Will & Emery Studio Legale Associato, Milan Italy attorney
Associate

Martino Sforza is an associate in the law firm of McDermott Will & Emery Studio Legale Associato, based in its Milan office.  He focuses his practice on merger filings, distribution, cartels and abuse of dominance, before the Italian Competition Authority and the European Commission.

39 02 89096073
Aiste Slezeviciute, Antitrust, Competition, Attorney, McDermott Will, Law Firm
Associate

Aiste is an associate in the Brussels office of McDermott Will & Emery and a member of the firm’s global Antitrust and Competition Practice.  Her focuses her practice on EU, competition and trade law.  Her experience includes antitrust investigations, EU and multijurisdictional merger control and for the trade practice, anti-dumping investigation and advice on regulatory matters, such as sanctions.  

Prior to joining MWE Aiste worked in the London office of an international accountancy firm and was an intern with the European Commission.

+32 02 282 35 26
Boris Uphoff, McDermott Will Emery Rechtsanwälte Steuerberater, Munich Law Firm, Intellectual Property
Partner

Dr. Boris Uphoff is a partner in the law firm of McDermott Will & Emery Rechtsanwälte Steuerberater LLP based in its Munich office.   He is a member of the Intellectual Property Litigation Practice Group, where his practice focuses on trade marks, unfair competition, copyright, design rights and patents.  His work in these areas, mostly contentious, has included representing plaintiffs and defendants in infringement suits before all major commercial courts in Germany. 

49-89-12712-181
Advertisement
Advertisement
Advertisement