The German Supreme Court holds that indirect purchasers have standing to sue for antitrust damages but defendants may invoke passing-on defense (Carbonless paper cartel)

The German Federal Civil Court (BGH) has held that both direct and indirect purchasers may sue for antitrust damages, but defendants may raise the passing-on defense. Through the passing-on defense, defendants try to demonstrate that plaintiffs suffered no financial harm, as they passed on the overcharge to their own customers. The BGH's decision of 28 June 2011 could spark an increase in antitrust litigation in Germany, as it confirms that indirect purchasers have standing (an issue on which German courts disagreed in the past). The fact that the passing-on defense is now available to defendants is unlikely to deter litigious purchasers, as the key to making pass-on a successful defense is in the evidence, and Germany does not allow discovery. Lower court decisions The plaintiff in

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Authors

  • Jones Day (Dusseldorf)
  • Linklaters (Frankfurt)

Quotation

Johannes Zöttl, Mirjam Erb, The German Supreme Court holds that indirect purchasers have standing to sue for antitrust damages but defendants may invoke passing-on defense (Carbonless paper cartel), 28 June 2011, e-Competitions Bulletin June 2011, Art. N° 38701

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