In a decision of 10 February 2021, published at the end of April 2021, the German Federal Court of Justice ("FCJ") ruled in a private damages claim action concerning the German track cartel that lump-sum cartel damages clauses of 5% (as in the case at hand) and, more generally, of up to 15% under certain conditions are permissible. Key takeaways Lump-sum cartel damage clauses (which are often found in general terms and conditions ("T&Cs") are permissible under German civil law if: (1) the amount of the lump-sum is appropriate, taking into account the average damages expected under normal circumstances; and (2) the defendant has the opportunity
The German Federal Court of Justice rules in a private damages claim concerning the German track cartel that lump-sum cartel damages clauses of 5% and up to 15% are permissible
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