Mrs Justice Bacon DBE today delivered her judgment following the trial of a preliminary issue concerning limitation in a follow-on action arising out of the Smart Card Chips (SCC) cartel. The Judge held that the claims brought by Gemalto NV and 14 other claimants were time-barred.
In September 2014 the European Commission found the Defendant groups, Renesas and Infineon, to have participated in a cartel that covered SCCs, a product used in the SIM cards of mobile phones and payment cards, from 2003 to 2005. Gemalto was a SIM card manufacturer who purchased SCCs during that period. In July 2019, just under six years from the date of the Commission’s infringement decision, Gemalto issued a claim for damages of around €280 million, excluding interest.
The Defendants pleaded that the claims were time-barred and a preliminary issue on limitation was ordered.
The Claimants argued that section 32(1)(b) of the Limitation Act 1980 applied so that time did not start to run until the announcement of the Commission’s 2014 decision. The Defendants argued, however, that time started running far earlier because Gemalto had sufficient information to identify all of the essential elements of its claim by the time the Commission announced that it had issued a Statement of Objections in relation to the suspected SCC cartel at the end of April 2013.
Mrs Justice Bacon agreed with the Defendants' argument. She held that by the time of the announcement of the Statement of Objections, taking account also of the other information available to it, Gemalto had sufficient material before it to be able to form a reasonable belief as to the essential elements of a claim for damages arising from the cartel, sufficient to plead a claim at that stage without waiting for the Decision. It followed that the limitation period had expired prior to the date on which Gemalto’s claim was filed.
The judgment is here.
Sarah Ford QC, Tim Johnston and Emma Mockford acted for the First and Second Defendants, Infineon (instructed by Freshfields Bruckhaus Deringer LLP).
Daniel Jowell QC and David Bailey acted for the Third to Fifth Defendants, Renesas (instructed by Latham & Watkins LLP).