Limitation period concerning investors claims possibly not yet expired

In September last year, the Foundation has warned against the possible expiry of the limitation period by September 9, 2016. Since there are no court decisions or affirmative prejudice concerning the actual expiry of limitation period, the warning was necessary as to refer affected investors to judicial assertion of claims by filing a suit in front of a German civil court, in order to - in any case - interrupt the limitation period.

Reason for the uncertainty concerning the statute of limitation in the given case is the change of paradigm concerning the statute of limitation. The legislator however has not set up a transitional provision, which clarifies which statute of limitation is applicable for old claims (meaning claims occurred before the change of law).

In the meantime a motion to initiate the KapMuG procedure (German Capital Markets Model Case Act [KapMuG]) was filed at the Regional Court of Stuttgart, as it was before at the Regional Court of Braunschweig. Defendant of the procedure pending in Stuttgart is Porsche Automobil Holding SE, which allegedly has also violated its obligation to disclose inside information in connection with the emission scandal according to applicable capital market law.

Now the Regional Court of Stuttgart has issued an order for reference in order for the Higher Regional Court of Stuttgart to choose a lead plaintiff. Doing so, the Regional Court of Stuttgart has outlined its legal opinion concerning the statute of limitation.

The court concluded that claims concerning the years 2014 and 2015 subject to the failure of Volkswagen/Porsche to disclose inside-information are not yet time-barred. The court is of the opinion that the extension of the statute of limitation from one to three years also applies to claims occurred before the legislative change regarding the statute of limitation, if such claims were not already time-barred at the time of the entry into force of the three year statute of limitation.

Although the legal opinion of the Regional Court of Stuttgart is not binding to all German courts, the reasoning of the court is however plausible. Therefore it is possible that the three years statute of limitation is applicable also concerning old claims.