German Private Enforcement

General antitrust

The German Parliament passes the 10th amendment of the German Act against restraints of competition
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 19 January 2021, the 10th Amendment of the German Act against Restraints of Competition (“ARC”) entered into force. The 10th Amendment, also referred to as the “Digitalisation Act”, introduces significant changes to German Competition Law. A previous issue of this newsletter (VBB on Competition (...)

The German Government submits a draft of the digitalisation act amending national competition law
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 9 September 2020, the German Government tabled the draft 10th amendment of the German Act against Restraints of Competition (“ARC”), also referred to as the ARC Digitalisation Act. The draft amendment entails significant changes in the areas of abuse of dominance, merger control, cartel fines (...)

The German Parliament adopts significant changes to the German Act against Restraints of Competition
White & Case (Hamburg)
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White & Case (Hamburg)
Today, significant changes to the German Act against Restraints of Competition have entered into effect. This newsletter provides an overview of the most significant aspects of the 9th amendment to the German competition law. Cartel Damages The amendment strengthens the procedural and legal (...)

Anticompetitive practices

The German Competition Authority dismisses a crop protection producer’s claim for state liability against Federal Cartel Office (BayWa)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 2 December 2020, the Regional Court of Bonn (“Court”) dismissed a claim of € 72.8 million by crop protection producer BayWa against the German Federal Cartel Office (“FCO”). BayWa argued that the FCO had violated its procedural rights, in particular the principle of equal treatment, in the (...)

The Regional Court in Bonn dismisses plant protection wholesaler’s action to establish German Competition Authority’s liability (BayWa)
German Competition Authority (Bonn)
BayWa’s legal action to establish Bundeskartellamt’s liability dismissed* The action brought by BayWa AG, Munich, against the Bundeskartellamt to establish the authority’s liability was dismissed in full by the Regional Court in Bonn today (case no. 1 O 201/20). BayWa had filed a claim for (...)

The Regional Court of Dortmund quantifies cartel damage without consulting time and cost consuming court-approved experts (Rail cartel)
Bird & Bird (Dusseldorf)
The Regional Court of Dortmund is the first German court quantifying a cartel damage claim by estimating the amount of damage on the basis of § 287 of the Code of Civil Procedure of Germany. In contrast to the previous cases, the court quantified the damage amount without consulting time and (...)

The Regional Court of Dortmund estimates a cartel overcharge of at least 15% in the rail sector without involving any court-appointed economic experts
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
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Hogan Lovells (Dusseldorf)
1. Introduction Determining the overcharge and, with that, the amount of cartel damages potentially suffered, is considered one of the most difficult aspects of cartel damages litigation in practice. The District Court of Dortmund (the “District Court”), known for its bold and innovative case (...)

The German Federal Court of Justice rules on a damages claim following a Commission decision sanctioning a cartel of truck manufacturers (Trucks cartel)
Ashurst (Munich)
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Ashurst (Frankfurt)
In a decision of 23 September 2020, published early January 2021, the German Federal Court of Justice ("BGH") rejected a follow-on damages claim filed against Daimler in relation to the European Commission’s ("Commission") Trucks decision. This is the first time that the highest German civil (...)

The German Lower Regional Court of Dortmund hands down a judgment regarding follow-on damages against a wholesale company for sanitary and heating products (Sanitary and heating cartel)
Ashurst (Frankfurt)
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Ashurst (Frankfurt)
On 8 July 2020, The German Lower Regional Court of Dortmund ("Court") recently handed down its ruling regarding follow-on damages against a specialist wholesale company for sanitary and heating products. Damages were sought following a fine of the German Federal Cartel Office ("FCO") relating (...)

The German Federal Court of Justice provides guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases (Schienenkartell II)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
In its judgment of 28 January 2020, the Cartel Senate of the German Federal Court of Justice provided new guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases. In the initial proceedings, the plaintiff, a local transport company, sought (...)

The German Federal Court of Justice decides that in a quota-fixing and customer-assigning cartel the prerequisites for prima facie evidence to establish whether the cartel has inflicted damage and whether it has affected individual orders are not fulfilled (Rail cartel)
Noerr (Berlin)
German Federal Court of Justice: no double prima facie evidence in cartel damages litigation* In a landmark ruling dated 11 December 2018 (KZR 26/17 – “rail cartel”), the German Federal Court of Justice decided that, in a quota-fixing and customer-assigning cartel, the prerequisites for prima (...)

The German Federal Court of Justice rules on the statute of limitations for cartel damages claims (Grauzementkartell II)
Hausfeld (Berlin)
In a landmark ruling today, the Federal Court of Justice (“FCJ”) ruled on the statute of limitations for cartel damages claims. Since July 2005, the German Act against Restraints provides that the statute of limitations for damages claims is suspended pending an investigation by competition (...)

The German Federal Court of Justice grants a claim for damages relating to a cement cartel by extending the time period in which limitation rules can be suspended (Grauzementkartell II)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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Norton Rose Fulbright (Brussels)
This landmark judgment of the German Federal Court of Justice concerns an action for damages relating to the German cement cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other cartel infringements. The Federal Court extended the temporal (...)

The German Federal Court clarifies controversial judgments around the statute of limitations for cartel damages claims (Grauzementkartell II)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
I. Introduction On 12 June 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) passed its long-awaited landmark decision in KZR 56/16 (Grauzementkartell II). The BGH held that Sec. 33 (5) of the German Act against Restraints of Competition (ARC) (today Sec. 33h (6) ARC), which (...)

The German Supreme Court rules that statute of limitations is tolled for cartel damages claims that arose before July 2005 (Grauzementkartell II)
Hausfeld (Düsseldorf)
Introduction: The tolling of the statute of limitations for cartel damages claims. According to former Section 33 Para. 5 of the German Act against Restraints of Competition (hereinafter Section 33(5)) the statute of limitations with respect to private cartel damages claims is tolled if a (...)

The EU Court of Justice AG Campos Sánchez-Bordona suggests interpretation concerning the limitations of the contracting authority’s ability to demand full and unrestricted cooperation from undertakings seeking to reassure them that they have self-cleaned after participating in collusive practices in public markets (Vossloh Laeis / Stadtwerke München)
University of Bristol - Law School
BID RIGGING, SELF-CLEANING, LENIENCY AND CLAIMS FOR DAMAGES: A BEAUTIFUL PROCUREMENT MESS? (C-124/17)* In his Opinion of 16 May 2018 in Vossloh Laeis, C-124/17, EU:C:2018:316 (not available in English), Advocate General Campos Sánchez-Bordona has offered an interesting view on the (...)

The Hanover District Court finds a participant of the trucks cartel liable for damages to the city of Gottingen (MAN Trucks)
Hausfeld (Berlin)
On July 19, 2016, the European Commission (“EC”) concluded a five-year investigation and imposed record-breaking fines of over € 2.9 billion on five major truck manufacturers (MAN, Daimler, Volvo/Renault, Iveco and DAF) for antitrust infringements — the so-called “truck cartel..EC, Decision of 19 (...)

The German Federal Council adopts an amendment to Act against restraints of competition
Jones Day (Frankfurt)
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Morgan Lewis (Frankfurt)
Key changes triggered by the amendment relate to a company’s liability for cartel infringements, the introduction of a transaction value test into merger control, private enforcement through the implementation of the EU Cartel Damages Directive, the assessment of market power in multilateral (...)

The German Federal Council votes in favour of passing the ninth amendment to the Act against restraints of competition
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
Update on the 9th ARC Revision On 31 March 2017, the German Federal Council (Bundesrat) has voted in favour of passing the ninth amendment to the Act against Restraints of Competition (ARC) (Gesetz gegen Wettbewerbsbeschränkungen). According to the 31 March plenary report, the draft law is now (...)

The Higher Regional Court Düsseldorf dismisses transferred follow-on damages claims because of the shift of the risk of litigation costs (Cartel Damages Claims)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts The judgment by the Higher Regional Court Düsseldorf (HRC Düsseldorf) put an end to 10 years of on-going legal dispute that started after the German Federal Cartel Office (FCO) disclosed various regional quota cartels, operating for a number of years until 2002, in the German cement (...)

The German Competition Authority holds that the managing director of a steel producer cannot be held liable for fines imposed on the company by the Federal Cartel Office (ThyssenKrupp)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts In 2012 and 2013 the German Federal Cartel Office (FCO) imposed heavy fines on numerous companies and individuals for participating in a cartel in the rail industry. Among the companies fined were subsidiaries of the large German steel-producing group, ThyssenKrupp, which had to (...)

The Regional Court of Potsdam finds a clause in the procurement terms of a German municipality requiring liquidated damages of 15% to be paid if the supplier participates in anti-competitive behaviour to be unlawful (Suppliers of fire engines)
Simmons & Simmons (Dusseldorf)
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Simmons & Simmons (Dusseldorf)
The German courts are grappling with the legality of clauses intended to agree liquidated damages where one of the parties is involved in a cartel. The Regional Court of Potsdam has recently found a clause in the procurement terms of a German municipality which requires liquidated damages of (...)

The German Federal Constitutional Court regards the disclosure of leniency applicants’ documents as not violating fundamental constitutional rights in the cartel damages proceedings (Aufzugskartell)
Hogan Lovells (Munich)
I. The Facts Following the European Commission’s decision to impose fines against a group of lift and escalator manufacturers for violating EU antitrust rules in February 2007 (COMP/38.823), several building contractors initiated civil damages claims before the Regional Court of Berlin at the (...)

The Dusseldorf Regional Court dismisses damages action against cement cartel
Deutsche Bahn (Berlin)
On 17 December 2013, the Düsseldorf Regional Court dismissed a follow-on cartel damages action in a case that had been widely noticed and discussed among German lawyers over the past nine years. Should the judgment be confirmed on appeal, claimants might find it more difficult to get (...)

The German Supreme Court rejects an appeal against an order from a lower Court awarding damages because of losses suffered due to an anticompetitive clause in an agreement (Dornbracht)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Shearman & Sterling (London)
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Reed Smith (Brussels)
The luxury bathroom fittings manufacturer Dornbracht has lost its appeal to the German Supreme Court against an order from a lower court awarding damages of €820,000 to a retailer because of losses suffered due to an anticompetitive clause in Dornbracht’s distribution agreements. The case is (...)

The German Regional Court grants damages to a customer of fire-fighting vehicle manufacturer cartelist (Feuerwehrfahrzeuge)
Commeo (Frankfurt)
In its decision of 4 May 2012 the Regional Court of Mannheim (in the following "Regional Court") had to assess whether the claimant could rely its claim on a clause on which the claimant had agreed with the contractor in the context of procurement proceedings and which fixed the amount of (...)

The Higher Regional Court of Munich dismisses compensation claims of a parent company from its former subsidiary because of its participation in a cartel (Calciumcarbid)
Gleiss Lutz (Frankfurt)
In its judgement of 9 February 2012, the Higher Regional Court of Munich confirmed the decision of Regional Court of Munich of 13 July 2011, and dismissed the plaintiff’s appeal. Together with two other companies, the plaintiff was considered as one economic unit and was held jointly and (...)

The Local Court of Bonn denies access to leniency applications for third parties in cartel case (Pfleiderer)
Heinz & Zagrosek (Köln)
No access to file to leniency applications for third parties in Germany – national follow-on judgment in Pfleiderer* On January 18, 2012, the district court of Bonn ruled on the scope of access to file for third parties in a cartel case under German law. The court rejected the claim insofar as (...)

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)
Jones Day (Dusseldorf)
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Linklaters (Frankfurt)
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 (...)

The German Supreme Court upholds that members of a cartel can defend themselves against a claim for damages by raising the passing-on defense onto a downstream market (Carbonless Paper Cartel)
McDermott Will & Emery (Paris)
SUPREME COURT ALLOWS THE PASSING-ON DEFENSE IN ANTITRUST DAMAGES ACTIONS * The German Supreme Court, in a landmark ruling handed down on 28 June 2011, has held that members of a cartel are able to defend themselves against a claim for damages by raising the defense that the relevant applicants (...)

The Karlsruhe Higher Regional Court rules on key issues of private damages actions against hardcore cartels decides on the indirect customer’s right to claim and addresses the challenging task of quantifying antitrust damages (Carbonless paper cartel)
Eberhard Karls University of Tübingen
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Gleiss Lutz (Stuttgart)
Introduction Private enforcement in hardcore-cartels cases is getting in motion. In Germany, within less than one year two actions for damages against participants in hardcore-cartels were successful. After the decision of the Berlin Higher Regional Court in the “Berliner Transportbeton”-case (...)

The German Higher Regional Court in Karlsruhe awards € 100,000 in damages to a claimant on behalf of a printing firm which purchased paper from a subsidiary of a cartel holding the passing-on defense does not apply (Carbonless Paper Cartel)
White & Case (Hamburg)
In its decision dated 11 June 2010, the Higher Regional Court of Karlsruhe has awarded € 100,000 in damages to a claimant on behalf of a printing firm that purchased carbonless-paper indirectly from members of the carbonless-paper cartel. The printing firm was seeking damages for paying cartel (...)

The Berlin Higher Regional Court rules on key issues of standing and standard of proof in cartel damages suits (Transportbeton Berlin)
Eberhard Karls University of Tübingen
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Gleiss Lutz (Stuttgart)
I. Introduction In its judgment on the first of October 2009 the Berlin Higher Regional Court has decided on important and disputed questions concerning the private enforcement of cartel damage claims under the German Act against restraints of Competition (“ARC”). Several statements in the (...)

The German Competition Authority imposes fines on pharmaceutical companies for price-fixing (Grünenthal / Infectopharm)
Van Bael & Bellis (Brussels)
According to a press release of 7 May 2009, the German Federal Cartel Office (FCO) refrained from imposing a fine on two pharmaceutical companies, Grünenthal GmbH and Infectopharm GmbH, which had illegally agreed on prices for colistin-based antibiotics. Following Grünenthal GmbH’s leniency (...)

The German Federal Court of Justice affirms admissibility of damages claims against cement cartel members
Van Bael & Bellis (Brussels)
The highest civil court in Germany, the Federal Court of Justice, has recently affirmed the admissibility of the private damages actions pending against participants in the German cement cartel. In May 2008, on appeal, the Higher Regional Court Düsseldorf had confirmed the admissibility of the (...)

The Higher Regional Court of Dusseldorf does not categorically rule out unjust enrichment claim for involvement in a cartel (Otis)
Court of First Instance of Namur (Namur)
In a judgment of 23 January 2009, which was recently made available, the Higher Regional Court of Düsseldorf (“Court”) dismissed a claim by a customer (Edelhoff) for the restitution of sums already paid under a contract with the lift manufacturer Otis, on the basis that the contract with Otis for (...)

The Local District Court of Bonn rules on access to the file in pending antitrust case (Listenpreis)
Eberhard Karls University of Tübingen
I. Introduction One of the most problematic aspects of civil antitrust litigation with respect to hardcore cartels is the factual substantiation of the claim. Although § 33 of the German Act against Restraints of Competition (ARC) lowers the burden of proof in several ways, it remains upon the (...)

The Regional Court of Dusseldorf rules on procedural key issues for cartel damages suits paving the way to de facto class action for cartel damages in Germany (Cartel Damage Claims)
Eberhard Karls University of Tübingen
I. Introduction The Regional Court in Düsseldorf has decided on procedural core questions in its interlocutory judgment of 21 February 2007 and already indicated its stance on substantive issues in an additional court instruction concerning the follow on-damages suit relating to the German (...)

The German Federal Court declares settlement concerning royalties for shipments to countries outside the territorial scope of a patent to be void (Abgasreinigungsvorrichtung)
Helmut Schmidt University of the Armed Forces (Hamburg)
I. Facts of the case and case history The claimant/licensee produces devices for cleaning exhaust fumes. The defendant/licensor owns a European patent protecting a specified process for cleaning exhaust fumes, with territorial effect (seeEuropean Patent Convention, Art. 3) in Germany, France, (...)

The German Mannheim Regional Court decides on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit (Carbonless paper cartel)
Eberhard Karls University of Tübingen
The Regional Court Mannheim decided in its judgment of 29 April 2005 on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit after a final decision of the EC Commission (Carbonless paper) . Background and Context of (...)

The Karlsruhe Higher Regional Court decides on passing on defence in the vitamins cartel (Vitaminpreise)
Eberhard Karls University of Tübingen
The Higher Regional Court Karlsruhe decided in its judgment of 28 January 2004 on the passing on defence in a cartel damages-suit concerning the vitamins cartel (Vitaminpreise). The judgment The Higher Regional Court (Oberlandesgericht) Karlsruhe has in its judgment of 28 January 2004 refused (...)

Unilateral Practices

The German Federal Court of Justice issues a judgment in a case involving SEP licensing negotiations on FRAND terms between two companies active in the mobile telecommunications market (Sisvel / Haier)
Van Bael & Bellis (Brussels)
On 5 May 2020, the German Federal Court of Justice (Bundesgerichtshof - the “FCJ”) delivered a judgment in a case pitting Sisvel against Haier which deals with the licensing of Standard Essential Patents (“SEP”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). This is the first (...)

The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
Van Bael & Bellis (Brussels)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not abused (...)

The German Competition Authority accepts commitments from electric heating providers to implement measures to open the market and reimburse customers
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 29 September 2010, the German Federal Cartel Office (“FCO”) announced that an investigation into twenty-four electric heating operators suspected of abusing their respective dominant positions was closed after the FCO accepted commitments to resolve the competition concerns. The (...)

The German Higher Regional Court of Dusseldorf rules on a damages claim in the postal sector (Deutsche Post)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
In a published judgment of 30 September 2009, the Higher Regional Court of Düsseldorf (“Court”) upheld the decision of the Regional Court of Düsseldorf according to which a consolidator was entitled to obtain damages from Deutsche Post AG (“DPAG”) for lost profits. The consolidator was a competitor (...)

The German Federal Court holds in a private antitrust enforcement case that offering varying prices in the gas retail market by different subsidiaries of the same parent company may be anticompetitive price discrimination by one economic entity (Entega)
University of East Anglia (Norwich)
In a private antitrust enforcement case the German Federal Court of Justice held that offering varying prices in the gas retail market by different subsidiaries of the same mother company may be anticompetitive price discrimination by one economic entity. Background German energy markets pose (...)

The German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents on the market for writeable optical media (Orange-book standard)
Ashurst (Milan)
German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents* On 6 May 2009 the German Federal Court of Justice handed down a landmark judgment (KZR 39/06 – Orange-Book-Standard) concerning the use of the competition law defense regarding compulsory (...)

The German Federal Court of Justice holds that the EC motor vehicles block exemption does not create any obligation to admit a plaintiff as an authorized repairer (Qualitative Selektion)
Fresenius Medical Care (Frankfurt)
Background The defendant, a manufacturer of motor vehicles, terminated its service agreement with the plaintiff, an authorized provider of repair and maintenance services, by contractual notice effective June 30, 2002. The defendant intended to change its criteria for selecting authorized (...)

Mergers

The German Federal Court of Justice clarifies the requirements for state liability in case of an illegal prohibition of a merger by the Competition Authority (GN Store Nord II)
Jones Day (Brussels)
The case before the Oberlandesgericht, (Higher District Court of Düsseldorf (OLG Düsseldorf)) related to a damages claim brought by Phonak against the Federal Republic of Germany based on the German rules of state liability (Section 839(1)(1) of the German Civil Code (BGB) in conjunction with (...)

The German Regional Court of Cologne rejects a damages claim made by a hearing aid manufacturer against the Competition Authority’s merger prohibition decision (GN Store Nord)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment of 26 February 2013, the German Regional Court of Cologne rejected an action for damages in the amount of more than € 1.1 billion by Danish hearing-aid manufacturer GN Store Nord A/S against the German Federal Cartel Office (FCO). GN Store sought compensation from the FCO for (...)

Procedures

The German Federal Court of Justice decides that the bundling of claims was admissible through a legal service provider causing the judgment to receive a lot of attention from the competition litigation community (Air Berlin)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
Germany up to this point does not offer claimants a true US- or UK-style class action regime – a situation that is felt especially in the context of seeking compensation for cartel damages. Claimants have therefore found other ways to join forces and bundle their claims. The most notable method (...)

The German Federal Court of Justice rules in a private damages claim action concerning the German track cartel that lump-sum cartel damages clauses of 5% and up to 15% are permissible
Ashurst (Frankfurt)
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Ashurst (Munich)
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% (...)

The German Federal Court of Justice rules on passing-on defence in damages claims proceedings following a sanctioned cartel in the rail market (Rail cartel)
Van Bael & Bellis (Brussels)
In a recently published judgment of 23 September 2020, the German Federal Court of Justice (“FCJ”) ruled once again on the private damages claims of a public transport company following on from the Federal Cartel Office’s rail track cartel decision (see VBB on Competition Law, Volume 2012, No. 7 (...)

The Regional Court of Munich dismisses follow-on damages claims totaling €600 million against participants in a truck cartel (Trucks cartel)
Court of First Instance of Namur (Namur)
On 7 February 2020, the Regional Court of Munich (the “Court”) dismissed a follow-on claim for damages brought by litigation vehicle Financial right, a registered legal services company. The claim followed a 2016 fining decision of the European Commission (the “Commission”) against participants in (...)

The German Federal Court of Justice defines in line with EU case-law the substantive and procedural requirements for establishing causality in cartel-related damages actions (Rail Cartel)
University of Vienna
By its ruling in Rail Cartel II (Schienenkartell II), delivered on 28 January 2020, the German Federal Court of Justice (Bundesgerichtshof) has clarified the respective prerequisites to establish, on the one hand, causality which gives rise to liability (haftungsbegründende Kausalität), and on (...)

The German Parliament approves statutory amendments addressing private competition enforcement
Hausfeld (Berlin)
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Hausfeld (Berlin)
Both houses of German parliament, the German Bundesrat (German Federal Council) and the Bundestag (German House of Representatives), have finally approved the long-awaited ninth amendment to the Act against Restraints of Competition, which in particular addresses private antitrust enforcement (...)

The Regional Court of Dortmund holds that standard arbitration agreements apply to cartel damages actions if and when the alleged conduct coincides with a breach of contract deviating from the EU Court of Justice foreseeability theory established for jurisdiction clauses (C. / N.)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
1. Introduction The question of whether cartel damages claims can be tried in arbitration under so-called ’standard’ arbitration agreements – meaning not explicitly referencing tortious or even specifically antitrust damages claims – has recently been the subject of much debate. Regarding (...)

The German Federal States Council approves reform of the national competition law
Heinz & Zagrosek (Köln)
Germany adopts competition law reform* Following the Parliament’s approval in early March, the Federal States Council, Germany’s second legislative chamber, has approved the most recent reform to German competition law on March 31, 2017. The new law will enter into force upon publication in the (...)

The German Parliament implements the EU Antitrust Damages Directive
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On March 10, 2017, the German Parliament adopted the 9th amendment to the German Act against Restraints of Competition (“9th Amendment”). While many of the revisions are of a declaratory nature, some changes should make cartel damages actions in Germany more attractive – in particular the new (...)

The Administrative Court of Dusseldorf rules on the right to access cartel damages proceeding file before the labour court (Local transportation company)
Court of First Instance of Namur (Namur)
In a judgment of 7 July 2016, the Administrative Court Düsseldorf (the “Court”) annulled the prior decision of the President of the Higher Labour Court Düsseldorf (the “President”) who had denied a potential cartel victim access to the file of a cartel damages proceeding before the Higher Labour (...)

The German Federal Ministry of Economic Affairs publishes a ministerial draft of the ninth amendment to the German Act against restraints of competition
Hausfeld (Berlin)
On July 1, 2016, the German Federal Ministry of Economic Affairs published the ministerial draft of the 9th amendment to the German Act against Restraints of Competition (the “Draft”). The Draft implements the European Union directive governing actions for damages for infringements of competition (...)

The German Federal Ministry of Economic Affairs publishes a draft law implementing the EU Damages Directive
Hausfeld (Berlin)
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Hausfeld (Berlin)
Draft German law implementing EU Damages Directive* On Friday, 1 July 2016, the German Federal Ministry of Economic Affairs finally published its draft law implementing the European Union directive governing actions for damages for infringements of competition rules (“Damages Directive”). The (...)

The Regional Court of Potsdam rules on the validity of standard term stipulating fixed percentage of cartel damages (Public local transport)
Court of First Instance of Namur (Namur)
In a judgment of 13 April 2016, the Regional Court Potsdam (the “Court”) ruled on the validity of a standard term in a procurement contract stipulating a fix percentage (15%) of damages in case of future follow-on action in relation to a competition law infringement. The claimant, a public local (...)

The Higher Regional Court of Hamm approves access to a criminal file containing a leniency application and the confidential version of a Commission’s fining decision to a civil court reviewing a damage claim against members of a cartel
Commeo (Frankfurt)
In its decision of 26 November 2013 , the Higher Regional Court of Hamm (“the Court”) had to decide whether a criminal investigation file including a leniency application submitted by a cartelist and parts of the confidential version of the European Commission’s fining decision could be disclosed (...)

The Local Court of Bonn rules that no access is granted to the documents voluntarily submitted by a leniency applicant (Pfleiderer)
Commeo (Frankfurt)
The Local Court in Bonn (Amtsgericht) decided on 18 January 2012 that no access will be granted to documents voluntarily submitted by a leniency applicant. According to the Local Court the threat to the effective detection and prosecution of competition law infringements justified in the (...)

The Local Court of Bonn asks the EU Court Justice for clarification on the relationship between access to the file for claimants and leniency (Pfleiderer)
European Commission (Brussels)
Germany: Access to the File for Claimants vs. Leniency - Local Court of Bonn asks ECJ for Clarification In a cartel case which was based inter alia on Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union), a customer applied for access to the file (...)

The Higher Regional Court of Dusseldorf declares a claim admissible for damages against cartel member (CDC / Cartel Damage Claims)
White & Case (Hamburg)
In its decision dated May 14, 2008, the Higher Regional Court of Düsseldorf held that an action for damages against members of a former cartel brought by a company, the business model of which is to acquire, bundle and bring claims of the cartel members’ customers, is admissible. This specific (...)

The German Higher Regional Court clarifies new German rules on private enforcement of competition law (Cement cartel)
McDermott Will & Emery (Dusseldorf)
Background On 1 July 2005, major amendments to the German competition law (“GWB”) entered into force. Several of these amendments were the result of the German legislator’s intention to strengthen the private enforcement of competition law. One of the new provisions is Section 33(4) GWB. The (...)

The German Parliament revises its Act against restraints of competition including damages claims (Gesetz gegen Wettbewerbsbeschränkungen)
Eberhard Karls University of Tübingen
The German Act against Restraints of Competition (“ARC”) has contained a special antitrust damages claim since its entering into force in 1958, which is now § 33 ARC. The German jurisprudence is therefore one of the most experienced as far as the private enforcement of antitrust law is concerned. (...)

The German Parliament passes an amendment modernizing national competition law and giving way to damages actions (Gesetz gegen Wettbewerbsbeschränkungen in der Fassung des Beschlusses des Deutschen Bundestages)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
On 1 July 2005, major changes to German competition law entered into force. The seventh amendment of the German Act against Restraints of Competition (“ARC”) aims to bring Germany into line with the modernised EU competition law rules. Damages actions The amended section 33 ARC deals with (...)

The Mannheim Regional Court and the Dortmund Regional Court decide on damages claims brought by the vitamins cartel’s customers (Vitaminpreise)
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer (Berlin)
Following the European Commission’s decision regarding the vitamin cartel (Commission Decision 2003/2/EC, of 21 November 2001, relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 - Vitamins), OJEC L 6, 10 January 2003, pp. (...)

Regulatory

The German Federal Ministry for Economic Affairs and Energy issues an update on the reform of German competition law
Court of First Instance of Namur (Namur)
On 24 January 2020, the German Federal Ministry for Economic Affairs and Energy published an update of its draft 10th amendment to the Act against Restraints of Competition (the “ARC”), officially called the “ARC Digitization Act”. Compared to the initial draft (see VBB on Competition Law, Volume (...)

The German Ministry for Economic Affairs and Energy publishes the draft bill on the 10th amendment to the German Act against restraints of competition
Morgan Lewis (Frankfurt)
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Buntscheck (Munich)
The German Ministry for Economic Affairs and Energy has published the draft bill on the 10th amendment to the German Act against Restraints of Competition, which includes a proposal for the revision of abuse control in Germany. Such revision would be of high relevance for undertakings in the (...)

The German Federal Ministry of Economic Affairs and Energy publishes a draft bill that partly serves to implement the ECN + directive
Bird & Bird (Dusseldorf)
On 7 October 2019, the German Federal Ministry for Economic Affairs and Energy published the draft bill of the so-called digitization law which partly serves to implement the “ECN Plus” Directive into German law. According to the new Sec. 19a ARC the German Federal Cartel Office ("FCO") may (...)

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