Case Preview: BCL Old Co Ltd & Ors v BASF plc & Ors
06 Friday Jul 2012
On 9 July 2012 the Supreme Court will determine whether the Court of Appeal’s construction of the Competition Appeal Tribunal’s Rules regarding the power to extend the time limit for bringing a claim under the Competition Act 1998, s 47A is in breach of the principles of effectiveness and legal certainty required by EU law.
In 2001 the European Commission found that BASF SE had infringed Article 101 of the Treating on the Functioning of the EU by colluding in price-fixing arrangements as a member of ‘the vitamins cartel’, and fined BASF €296m. BASF challenged the Commission’s calculation of its fine in the EU General Court, but did not contest the finding of an infringement. The final decision, reducing BASF’s fine, was handed down on 15 March 2006.
On 13 March 2008, BCL Old Co. Ltd brought proceedings against BASF in the CAT under s 47A claiming it had suffered monetary loss and damage as an indirect purchaser of the vitamins cartel’s products.
Under s 47A a claim for damages may be brought by a person who has “suffered loss or damage as result of the infringement” of Article 101 TFEU. Before a claim can be brought, there must have been a “decision” in respect of this infringement, for example a European Commission decision finding an infringement of Article 101 TFEU. The CAT Rules set the time limit for bringing a claim; specifically, Rule 31 states that a s 47A claim must be brought “within a period of two years beginning with the relevant date“. The “relevant date” is the later of the expiry of the period for appealing the infringement “decision”, or the determination of any appeal brought in respect of the “decision”.
The CAT considered whether BCL was time-barred from bringing its claim as a preliminary issue. It held, agreeing with the case put forward by BCL, that the claim was not time-barred because the two-year period stipulated by r 31 started when the General Court made the final determination concerning BASF’s fine on 12 March 2006, not on the expiry of the period for appealing the European Commission’s infringement decision, in January 2002, as put forward by BASF.
On appeal, the Court of Appeal considered the same issue. Richards LJ agreed with BASF’s argument and ruled that the claim was time-barred, the window to bring a claim having expired in 2004. In his concluding comments, Richards LJ noted that the claim could only proceed if the CAT were to grant an extension of time.
Application for an extension of time
Consequently, BCL applied to the CAT for an extension of time to bring its claim. On the basis of Richards LJ’s comments, the CAT considered the application on the assumption that it had power to extend the time limit in r 31 (an assumption subsequently ruled to be unfounded by the Court of Appeal). The CAT declined to use its discretion and dismissed the application. BCL appealed this decision to the Court of Appeal, which dismissed BCL’s appeal.
Supreme Court hearing
The key point in the Court of Appeal judgment that is now to be considered by the Supreme Court is whether the Court of Appeal’s construction of the Rules so as to deny the CAT a power to extend the time limit set out in r 31 is contrary to the principles of effectiveness and legal certainty required by EU law. BCL argued that the previous ruling of the Court of Appeal had retrospectively shortened the time available to it for bringing a claim under s 47A and had therefore offended the principle of effectiveness which requires that national law of an EU Member State must not make it virtually impossible or excessively difficult to exercise a right conferred by EU law. The Court rejected this argument, stating that the principle of effectiveness was not offended because pursuant to the Rules a claimant has a clear two-year period during which to bring a claim.
The Court also rejected BCL’s assertion that the previous decisions made by the CAT and the Court of Appeal did not give rise to legal certainty. In respect of s 47A and r 31, the Court held that there was “no question […] of a limitation rule which is intrinsically uncertain”. The Court held that a provision is not to be judged legally uncertain just because different conclusions had been reached at different hearings, on the same facts. To decide otherwise would mean that no provision could be deemed legally certain unless all courts and tribunals agreed with each other.
The issues concerning the EU principles of effectiveness and legal certainty will now be considered by the Supreme Court.