Federal Court of Justice rules on statute of limitations for bid-rigging agreements

Background
Decision

On 25 August 2020 the Federal Court of Justice issued a decision on the statute of limitations for bid-rigging agreements (KRB 25/20). According to the court, the limitation period does not begin with the conclusion of the contract resulting from the anti-competitive agreement; rather, it begins later with the complete execution of the contract.

Background

In a 21 December 2018 decision, the Federal Cartel Office imposed a fine for bid rigging on a party to the proceedings. This fine was based on the accusation that the party's managing director had been involved in an infringement of competition law. Specifically, he had agreed with a competitor's responsible employee that the employee would hold back in favour of his competitor during the tendering procedure. At first instance, the Dusseldorf Higher Regional Court stated that the conduct was time barred. The court held that the end of the offer period was the relevant point in time for the limitation period.

Decision

The Federal Court of Justice held that the Dusseldorf Higher Regional Court had incorrectly calculated the limitation period based on the expiry of the tender period and not the preparation of the final invoice.

According to the Federal Court of Justice, the limitation period does not begin with the conclusion of the agreement restricting competition, but rather with the execution of the contract resulting from the agreement. This point in time applies to all persons who concluded the agreement, even if no contract was concluded directly with them.

The start of the limitation period in fine proceedings is governed by the principles of criminal law. Therefore, the limitation period does not begin until the contract is fully implemented, which cannot happen until the final invoice has been issued.

For further information on this topic please contact Sascha Dethof at Fieldfisher (Germany) LLP by telephone (+49 211 950 749 0) or email (sascha.dethof@fieldfisher.com). The Fieldfisher (Germany) LLP website can be accessed at www.fieldfisher.com.