Introduction

The case Deutsche Bahn AG and Others v. MasterCard Incorporated and Others ([2016] CAT 14) was adjudicated by the United Kingdom Competition Appeal Tribunal (CAT) on July 27, 2016. This judgment addresses a pivotal issue in competition law damages claims: the applicability of limitation periods governed by the UK Competition Act 1998 (CA) and Tribunal Rules versus those set forth in the Foreign Limitation Periods Act 1984 (FLPA), which typically invoke foreign law.

The central question was whether competition damages claims before the CAT, treated as proceedings in England and Wales but governed substantively by foreign law, should adhere to the limitation periods under the CA and Tribunal Rules or be subject to foreign limitation statutes as per the FLPA.

Summary of the Judgment

The Tribunal examined two proceedings: MasterCard and Pilkington, both challenging EU Commission decisions on anti-competitive practices. The primary issue was determining the applicable limitation periods for these claims.

The Tribunal concluded that for claims governed by foreign law, the relevant foreign limitation provisions would apply under the FLPA. This interpretation aligns with the underlying policy of the FLPA and ensures consistency across different jurisdictions within the UK. Consequently, the Tribunal rejected the defendants' argument that the limitation periods set by the CA and Tribunal Rules should exclusively govern the claims, affirming that foreign laws determine the limitation when they are the governing law of the claim.

Specifically, the Tribunal determined that:

• For proceedings treated as being in England and Wales but governed by foreign law, the FLPA mandates the application of foreign limitation periods.
• The CA and Tribunal Rules do not preclude the application of the FLPA.
• Policy considerations and statutory interpretation support the use of foreign limitation laws in such contexts.

Analysis

Precedents Cited

The Tribunal referenced several key precedents and legislative frameworks to underpin its decision:

• Hillingdon LBC v ARC Ltd [1999] Ch 139: Confirmed that the FLPA applies to tribunal proceedings as well as court proceedings.
• Cox v Ergo Versicherung AG [2014] UKSC 22: Highlighted the limited circumstances under which UK legislation may have extraterritorial effects.
• Reports by the Law Commission and Scottish Law Commission: Criticized the 'double actionability' rule and supported the application of foreign limitation laws.

Legal Reasoning

The Tribunal's reasoning hinged on statutory interpretation and policy alignment:

• Statutory Interpretation: The Tribunal interpreted section 47A of the CA in conjunction with the FLPA, concluding that the FLPA applies unless expressly excluded by the CA or Tribunal Rules.
• Policy Considerations: Emphasized the purpose of the FLPA to harmonize limitation periods with the governing foreign law, preventing forum shopping and ensuring fairness.
• Consistency Across Jurisdictions: Affirmed that section 47A must have a uniform interpretation across England, Wales, Scotland, and Northern Ireland, supporting the application of foreign limitation laws where appropriate.

Furthermore, the Tribunal rejected the claimants' argument that section 47A and Tribunal Rules form an exclusive framework by highlighting that exclusion of foreign limitation periods was not explicitly stated, and such exclusion would contravene established policies.

Impact

This judgment has significant implications for future competition damages claims:

• Clarification on Limitation Periods: Establishes that foreign limitation laws govern competition damages claims when foreign law is applicable, providing clarity to claimants and defendants.
• Influence on Procedural Strategy: Affects decisions on where and how to file claims, potentially encouraging or discouraging claims based on varying limitation periods across jurisdictions.
• Consistency with EU Regulations: Aligns UK practices with broader EU conflict of laws approaches, particularly in light of the Rome II Regulation.

Complex Concepts Simplified

Limitation Period

A limitation period is the maximum time after an event within which legal proceedings may be initiated. Once this period expires, the claim is typically barred.

Foreign Limitation Periods Act 1984 (FLPA)

The FLPA governs which country's law should apply to determine the limitation periods for legal actions, particularly in cases involving foreign elements.

Section 47A Competition Act 1998 (CA)

Section 47A allows for compensation claims in competition law infringements, specifying how and where such claims can be brought before the Competition Appeal Tribunal.

Public Policy Exception

Even when foreign law is applicable, the court may refuse to apply it if it conflicts with the core principles of the UK’s legal system.

Conclusion

The decision in Deutsche Bahn AG and Others v. MasterCard underscores the primacy of foreign limitation laws in competition damages claims before the Competition Appeal Tribunal when such claims are governed by foreign law. By adhering to the FLPA, the Tribunal ensures consistency, fairness, and alignment with established conflict of laws principles. This judgment clarifies the interplay between domestic competition laws and international legal frameworks, providing a vital precedent for future cases involving cross-border competition disputes.