Period of limitations in follow-on competition cases: the elephant in the room?

A series of private competition law cases in the UK has demonstrated that there are significant procedural issues that need to be resolved before private enforcement can take off in the way that the European Commission and the UK Government are currently encouraging. One of these issues is the period of limitations in a follow-on case where there are multiple infringers some of whom appeal the (infringement) decision of the competition authority and some of whom do not. This is an ongoing problem in the UK in the context of follow-on actions before the Competition Appeal Tribunal (CAT) and is currently awaiting resolution by the Supreme Court in Deutsche Bahn. This article shows that this seemingly simple question of period of limitations is in fact loaded with serious implications going well beyond a procedural, timing issue. Although the issue is pertinent to all types of infringements of competition law with multiple infringers, it has particular implications for leniency recipients in cartel cases and therefore, for the overall relationship between private and public enforcement of competition law. These implications demonstrate how far from desirable the current legal situation is. This article demonstrates what the overall preferable solution is regarding the treatment of period of limitations in follow-on cases based on Commission infringement decisions in the presence of multiple infringers from a UK and EU law point of view.