BCL Old Co Limited and others v BASF plc and others

A national limitation rule governing the enforcement of rights derived from European Union law must not make their exercise practically impossible or excessively difficult. Its effect must be sufficiently clear, reasonably certain and reasonably foreseeable. Absolute certainty, or clarity beyond all doubt, is not required.

The existence of arguable questions of construction, or an erroneous decision later corrected on appeal, does not itself establish unlawful uncertainty. A penalty-only appeal against a competition infringement decision does not postpone the limitation period for a follow-on damages claim. The Tribunal’s general case-management powers do not authorise extension of the time for commencing such a claim.

The European Commission found that a vitamins cartel infringed article 81 of the EC Treaty. BASF appealed only against its fine. BCL subsequently brought a follow-on damages claim against BASF in the Competition Appeal Tribunal.

The Court of Appeal held that the claim was time-barred and that the Tribunal had no power to extend the applicable period: [2010] EWCA Civ 1258, [2011] Bus LR 428. BCL appealed solely on European law grounds.

The central issues were whether the domestic limitation scheme lacked sufficient certainty or made enforcement of BCL’s European rights excessively difficult, and, if so, whether BASF could nevertheless rely on the time bar in private civil litigation.

1. Appeal dismissed unanimously. Lord Mance gave the judgment, with which Lord Phillips, Lord Walker, Lord Clarke and Lord Wilson agreed. The established European test was whether the national rule rendered enforcement of a European right practically impossible or excessively difficult. The rule’s effect had to be sufficiently clear and precise, ascertainable with a reasonable degree of certainty and reasonably foreseeable. Paragraph 57 of Commission v Ireland did not establish a general requirement of clarity beyond doubt. Read in context, it applied the established test to legislation whose apparent wording pointed towards a different result. No reference to the Court of Justice was necessary: paras 17–24.
2. The commencement of the two-year period was sufficiently foreseeable. The Competition Act 1998 consistently distinguished a decision that a prohibition had been infringed from a decision imposing a penalty. BASF’s appeal challenged only its fine and therefore did not postpone time for a follow-on claim based on the established infringement. Any factual uncertainty about the scope of a particular appeal did not make the statutory distinction uncertain: paras 29–30.
3. Erroneous Tribunal decisions did not establish a breach of effectiveness or legal certainty. An appellate system exists to correct error and establish the proper construction. The Tribunal had given the words “any” and “decision” meanings they could not bear and had failed to read section 47A in its statutory context. It was readily foreseeable that the contrary view would prevail on appeal. The risks of failing to commence proceedings by 31 January 2004 were evident: paras 37–40.
4. The absence of a power to extend time was also sufficiently clear. Rule 19 concerned case management after proceedings had begun. Its power to abridge or extend time limits could not govern commencement. Rules 8, 30 and 44 showed that an express exceptional power to extend appeal time had deliberately not been made available for damages claims: paras 41–43.
5. Obiter, even if the State had enacted a limitation regime whose uncertainty breached European law, that would not require the limitation defence of an independent private defendant to be set aside. Any complaint would lie against the United Kingdom. Limitation provisions serve repose and benefit liable defendants as well as innocent ones: paras 44–47.

1. United Kingdom Supreme Court: Dismissed BCL’s appeal from [2010] EWCA Civ 1258 on the European law issues.
2. Court of Appeal: Held that the Competition Appeal Tribunal had no domestic power to extend the time for bringing the claim and that European law neither displaced the time bar nor supplied such a power: [2010] EWCA Civ 1258, [2011] Bus LR 428.
3. Competition Appeal Tribunal: Assuming that it possessed an extension power, declined to exercise it on the merits: [2009] CAT 29.
4. Court of Appeal: Reversed the Tribunal and held that the damages claim was time-barred: [2009] EWCA Civ 434.
5. Competition Appeal Tribunal: Had held that BASF’s penalty appeal postponed commencement of the limitation period: [2008] CAT 24.