German Private Enforcement

Foreword German Private Enforcement: an overview of competition law

Germany is one of the European jurisdictions in which plaintiffs are particularly active in bringing actions for the enforcement of German and European competition (antitrust) law. Private enforcement of competition law as such is not a particularly new phenomenon in Germany, as courts have dealt with the so-called “antitrust defence” for many years and plaintiffs have also tackled certain abusive practices by dominant market players.

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University of Hamburg
Germany 3 contributions 1937 visits

Anticompetitive practices

 The German Regional Court of Dortmund seeks clarity from the EU Court of Justice regarding the enforcement of cartel damage claims through the assignment model (ASG)
CDC Cartel Damage Claims (Brussels)
Belgium 2 contributions 91 visits
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CDC Cartel Damage Claims (Kaiserslautern)
Germany 2 contributions 91 visits
Effective enforcement of cartel damage claims through the assignment model: The preliminary ruling procedure before the CJEU in Case C-253/23 (ASG) – A Comment* The Regional Court of Dortmund has asked the Court of Justice of the European Union (CJEU) for a preliminary ruling on the access (...)

The Germany Federal Court of Justice rules that an exchange of secret information between competitors about pricing strategies for a common customer gives rise to a factual presumption of harm (Schlecker)
Fieldfisher (Düsseldorf)
Germany 1 contribution 58 visits
Introduction In the Schlecker case, (BGH, decision of 29 November 2022, KZR 42/20, Schlecker. The BGH’s press release can be found here.) the Federal Court of Justice (BGH) dealt with claims by a drugstore chain against manufacturers for damages on the grounds of excessive prices. In (...)

The German Federal Court of Justice extends the factual presumption of damages to anticompetitive information exchange to give a further boost to victims’ claims against cartels (KWR working group)
Blomstein (Berlin)
Germany 3 contributions 196 visits
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Higer Regional Court (Berlin)
1 contribution 68 visits
Dirty laundry in the “KWR” working group A total of 15 manufacturers of branded drugstore products were involved in the so-called drugstore products cartel. From at least 2004 to 2006, they regularly informed each other about (planned) gross price increases and the status of negotiations (...)

The German Federal Court of Justice confirms that a factual presumption of harm exists in cases of anticompetitive information exchanges (Schlecker)
CDC Cartel Damage Claims (Brussels)
Belgium 5 contributions 3390 visits
On 5 January 2023, the German Federal Court of Justice (Bundesgerichtshof, BGH) published an important judgment in relation to follow-on damage actions relating to the so-called German drugstore products cartel (Case KZR 42/20). In its ruling, Germany’s highest civil court also confirmed a (...)

The German Federal Court of Justice roundly rejects claims that cartel behaviour was ’harm-free’, which would have allowed the cartelists to avoid a presumption of injury, and declares the behaviour constituted a hardcore infringement (Schlecker)
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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Hausfeld (Berlin)
Germany 2 contributions 146 visits
In several jurisdictions, claimants’ burden of proof for the existence of injury is a major hurdle to traditional cartel damage claims. To avoid a presumption of injury under the settled case law of the German Federal Court of Justice (Bundesgerichtshof, (“BGH”) for hard-core cartels, (...)

The German Competition Authority publishes its guidelines on the premature deletion of an entry in the register for public procurement
German Competition Authority (Bonn)
Germany 447 contributions 113862 visits
Competition Register for Public Procurement – Bundeskartellamt publishes guidelines and practical guide on premature deletion of an entry due to self-cleaning* The Bundeskartellamt has today published guidelines on the premature deletion of an entry in the Competition Register and a (...)

The German Regional Court of Bonn dismisses a pesticide producer’s claim for state liability against the Competition Authority (BayWa)
Van Bael & Bellis (Brussels)
Belgium 30 contributions 3998 visits
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Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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 German Regional Court in Bonn dismisses plant protection wholesaler’s action to establish the Competition Authority’s liability (BayWa)
German Competition Authority (Bonn)
Germany 447 contributions 113862 visits
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)
Germany 12 contributions 2017 visits
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 (Rail cartel)
Hogan Lovells (Munich)
Germany 39 contributions 4356 visits
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Hogan Lovells (Munich)
Germany 65 contributions 25112 visits
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Hogan Lovells (Düsseldorf)
Germany 4 contributions 1199 visits
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 (...)

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)
Germany 9 contributions 1750 visits
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Ashurst (Frankfurt)
Germany 15 contributions 4180 visits
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)
Germany 15 contributions 4180 visits
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Ashurst (Frankfurt)
Germany 4 contributions 313 visits
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)
Germany 2 contributions 722 visits
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European Court of Justice (Luxembourg)
Luxembourg 4 contributions 2787 visits
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)
Germany 1 contribution 155 visits
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 (...)

The German Supreme Court rules that statute of limitations is tolled for cartel damages claims that arose before July 2005 (Cement Cartel II)
Hausfeld (Düsseldorf)
Germany 1 contribution 59 visits
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 German Federal Court of Justice rules on the statute of limitations for cartel damages claims (Cement Cartel)
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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 (Cement Cartel)
McDermott Will & Emery (Brussels)
Belgium 43 contributions 7580 visits
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McDermott Will & Emery (Paris)
France 134 contributions 66052 visits
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Norton Rose Fulbright (Brussels)
Belgium 37 contributions 7065 visits
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 (...)

The German Federal Court clarifies controversial judgments around the statute of limitations for cartel damages claims (Cement Cartel)
Hogan Lovells (Munich)
Germany 65 contributions 25112 visits
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Hogan Lovells (Munich)
Germany 39 contributions 4356 visits
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 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
United Kingdom 92 contributions 25412 visits
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 (Trucks Cartel / MAN Trucks)
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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 (...)

The German Federal Council votes in favour of passing the ninth amendment to the Act against restraints of competition
Latham & Watkins (Brussels)
Belgium 4 contributions 731 visits
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Baker McKenzie (Brussels)
Belgium 1 contribution 244 visits
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 (...)

The German Federal Council adopts an amendment to Act against restraints of competition
Jones Day (Frankfurt)
Germany 17 contributions 3856 visits
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Morgan Lewis (Frankfurt)
Germany 8 contributions 2904 visits
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 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)
Germany 65 contributions 25112 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 5 contributions 1119 visits
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 (...)

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)
Germany 65 contributions 25112 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 5 contributions 1119 visits
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 (Munich)
4 contributions 969 visits
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Simmons & Simmons (Dusseldorf)
Germany 3 contributions 488 visits
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)
Germany 65 contributions 25112 visits
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
Daimler (Stuttgart)
Germany 1 contribution 273 visits
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)
Belgium 7 contributions 5381 visits
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Shearman & Sterling (London)
United Kingdom 30 contributions 14054 visits
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UK Competition & Markets Authority - CMA (London)
Belgium 12 contributions 13065 visits
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 (...)

The German Regional Court grants damages to a customer of fire-fighting vehicle manufacturer cartelist (Feuerwehrfahrzeuge)
Commeo (Frankfurt)
Germany 10 contributions 2627 visits
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)
Germany 8 contributions 1582 visits
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 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)
France 134 contributions 66052 visits
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 (...)

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)
Germany 19 contributions 6284 visits
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Linklaters (Frankfurt)
Germany 1 contribution 547 visits
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 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)
Germany 10 contributions 36737 visits
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 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
Germany 14 contributions 42056 visits
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Gleiss Lutz (Stuttgart)
Germany 2 contributions 2771 visits
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 (...)

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
Germany 14 contributions 42056 visits
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Gleiss Lutz (Stuttgart)
Germany 2 contributions 2771 visits
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)
Belgium 386 contributions 92721 visits
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)
Belgium 386 contributions 92721 visits
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)
Belgium 224 contributions 46654 visits
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 (...)

The Local District Court of Bonn rules on access to the file in pending antitrust case (Listenpreis)
Eberhard Karls University of Tübingen
Germany 14 contributions 42056 visits
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 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
Germany 14 contributions 42056 visits
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)
16 contributions 36121 visits
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, (...)

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
Germany 14 contributions 42056 visits
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
Germany 14 contributions 42056 visits
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 (...)

Unilateral Practices

 The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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 (...)

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)
Belgium 154 contributions 52737 visits
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 (...)

The German Competition Authority accepts commitments from electric heating providers to implement measures to open the market and reimburse customers
Van Bael & Bellis (Brussels)
Belgium 191 contributions 65838 visits
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Practising Law Institute (New York)
United States 93 contributions 31427 visits
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)
Belgium 191 contributions 65838 visits
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Practising Law Institute (New York)
United States 93 contributions 31427 visits
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 (...)

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)
United Kingdom 13 contributions 26439 visits
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 (...)

The German Federal Court of Justice rules on an antitrust defense to infringement of standards-related patents on the market for writeable optical media (Orange-book standard)
Ashurst (Milan)
Italy 102 contributions 29557 visits
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)
Germany 3 contributions 12040 visits
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 rules that where consideration in a public acquisition is not adequate shareholders may be entitled to sue
Morgan Lewis (Frankfurt)
Germany 1 contribution 1621 visits
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Morgan Lewis (Frankfurt)
Germany 1 contribution 1621 visits
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Morgan Lewis (Frankfurt)
Germany 1 contribution 1621 visits
RECENT CASE LAW RELATING TO PUBLIC TENDER OFFERS UNDER THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT (WPÜG): The German Federal Court of Justice (FCJ) pronounced on November 23, 2021 two judgments in parallel proceedings that may have landmark effect. In contrast to the FCJ’s earlier (...)

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)
Belgium 46 contributions 18585 visits
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)
Belgium 227 contributions 71816 visits
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Van Bael & Bellis (Brussels)
Belgium 15 contributions 4342 visits
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 (...)

Procedures

 The Higher Regional Court of Düsseldorf confirms the personal liability of the company’s statutory representatives in its managing corporate body for any consequential damages arising from the antitrust infringement (ArcelorMittal / Dörrenberg / Kind & Co. / Wiehl...)
Cleary Gottlieb Steen & Hamilton (Cologne)
Germany 1 contribution 120 visits
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Cleary Gottlieb Steen & Hamilton (Cologne)
Germany 3 contributions 591 visits
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Cleary Gottlieb Steen & Hamilton (Cologne)
Germany 2 contributions 154 visits
On July 27, 2023 , the Higher Regional Court of Düsseldorf ruled on the question of whether a company that has been fined under antitrust law can hold itself harmless by seeking indemnification from the statutory representatives in its managing corporate body. While the Higher Regional Court (...)

The German Federal Court of Justice holds that arbitral awards that apply specific competition rules, including the abuse of dominance provision, are subject to a full review by the ordinary courts
Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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Van Bael & Bellis (London)
United Kingdom 1 contribution 94 visits
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Van Bael & Bellis (Brussels)
Belgium 59 contributions 14100 visits
In its landmark judgment of 27 September 2022 (KZB 75/21), the Bundesgerichtshof, the German Federal Court of Justice (“FCJ”), held that arbitral awards involving Sections 19 to 21 of the German Act against Restraints of Competition (“ARC”) related to the abuse of dominance, abuse of relative (...)

The German Federal Court of Justice opens the door to collective action claims in cartel cases (financialright)
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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Hausfeld (Berlin)
Germany 1 contribution 130 visits
With its recent decision in the financialright case the highest German civil court, the Federal Court of Justice (Bundesgerichtshof, “BGH”), clarified that the bundling of claims through an assignment to a legal service provider, the so-called assignment model, is allowed under German law. The (...)

The German Federal Court of Justice rules that enforcement by debt collectors of damages claims bundled through mass assignment is compliant with German law (Financialright)
Van Bael & Bellis (Brussels)
Belgium 30 contributions 3998 visits
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Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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Van Bael & Bellis (Brussels)
Belgium 11 contributions 5871 visits
On 13 June 2022, the German Federal Court of Justice (“FCJ”) ruled that the mass assignment of individual damages claims to a debt collector, who then brings a consolidated claim supported by a qualified lawyer, does not violate the German Legal Services Act (“LSA”). This judgment gives a (...)

The Regional Court of Stuttgart finds bundled cartel damages claims through a legal services provider to be inadmissible (German State of Baden-Württemberg)
Hogan Lovells (Munich)
Germany 39 contributions 4356 visits
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Hogan Lovells (Munich)
Germany 3 contributions 1343 visits
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Hogan Lovells (Munich)
Germany 1 contribution 565 visits
1. Background In Germany, the discussion about the admissibility of enforcing bundled and assigned cartel damages claims via a legal services provider enters the next round. As Germany does not offer claimants a true US- or UK-style class action regime claimants will seek alternative ways (...)

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)
Germany 3 contributions 1343 visits
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Hogan Lovells (Munich)
Germany 39 contributions 4356 visits
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 (...)

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
Ashurst (Frankfurt)
Germany 15 contributions 4180 visits
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Ashurst (Munich)
Germany 9 contributions 1750 visits
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 the passing-on defense in damages claims proceedings following a sanctioned cartel in the rail market (Rail cartel)
Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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. (...)

The German Regional Court of Munich dismisses follow-on damages claims totalling €600M against participants in a truck cartel (Trucks Cartel)
Court of First Instance of Namur (Namur)
Belgium 224 contributions 46654 visits
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 (...)

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)
Transact Risk Partners (Amsterdam)
2 contributions 533 visits
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 (...)

The German Parliament approves statutory amendments addressing private competition enforcement
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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Hausfeld (Berlin)
Germany 7 contributions 1100 visits
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)
Germany 65 contributions 25112 visits
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Hogan Lovells (Munich)
Germany 39 contributions 4356 visits
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 23 contributions 13110 visits
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 German Parliament implements the EU Antitrust Damages Directive
Cleary Gottlieb Steen & Hamilton (Cologne)
Germany 3 contributions 3815 visits
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Cleary Gottlieb Steen & Hamilton (Cologne)
Germany 3 contributions 591 visits
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)
Belgium 224 contributions 46654 visits
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 (...)

The German Federal Ministry of Economic Affairs publishes a draft law implementing the EU Damages Directive
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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Hausfeld (Berlin)
Germany 2 contributions 572 visits
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 German Federal Ministry of Economic Affairs publishes a ministerial draft of the ninth amendment to the German Act against restraints of competition
Hausfeld (Berlin)
Germany 11 contributions 3067 visits
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 (...)

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)
Belgium 224 contributions 46654 visits
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 (...)

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)
Germany 10 contributions 2627 visits
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 (...)

The Local Court of Bonn rules that no access is granted to the documents voluntarily submitted by a leniency applicant (Pfleiderer)
Commeo (Frankfurt)
Germany 10 contributions 2627 visits
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 - DG COMP (Brussels)
Belgium 714 contributions 218095 visits
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 (...)

The Higher Regional Court of Dusseldorf declares a claim admissible for damages against cartel member (CDC / Cartel Damage Claims)
White & Case (Hamburg)
Germany 10 contributions 36737 visits
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)
Eversheds Sutherland (Düsseldorf)
Germany 16 contributions 52456 visits
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
Germany 14 contributions 42056 visits
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 (...)

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)
Germany 5 contributions 24869 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 31 contributions 121130 visits
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)
Germany 31 contributions 121130 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 7 contributions 5637 visits
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 national competition law
Court of First Instance of Namur (Namur)
Belgium 224 contributions 46654 visits
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, (...)

The German Government adopts a draft bill on the 11th Amendment to the German Competition Act, which introduces new far-reaching interventional powers for the Competition Authority
Morgan Lewis (Frankfurt)
Germany 8 contributions 2904 visits
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Morgan Lewis (Munich)
1 contribution 65 visits
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Morgan Lewis (Frankfurt)
Germany 1 contribution 65 visits
The German government on 5 April 2023 adopted a draft bill on the 11th Amendment to the German Competition Act, which introduces, under certain circumstances, new far-reaching interventional powers for the German Federal Cartel Office. The revision in this respect is specifically aimed at (...)

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)
Germany 8 contributions 2904 visits
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Buntscheck (Munich)
3 contributions 1045 visits
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)
Germany 21 contributions 2528 visits
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 (...)

General antitrust

 The German Government passes a new amendment of the Competition Law which substantially expands the Competition Authority’s enforcement powers
White & Case (Düsseldorf)
Germany 36 contributions 14401 visits
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White & Case (Düsseldorf)
Germany 3 contributions 2530 visits
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White & Case (Düsseldorf)
Germany 1 contribution 82 visits
On July 6, 2023, the German Parliament passed the 11th amendment to the German Act Against Restrictions of Competition ("ARC"), substantially expanding the Federal Cartel Office’s ("FCO") enforcement powers. The reform targets three main areas: Gives the FCO the power to impose behavioral or (...)

The German Government passes a new amendment on the German Competition Law which grants new powers to the German Competition Authority
Herbert Smith Freehills (Düsseldorf)
Germany 22 contributions 5763 visits
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Herbert Smith Freehills (Düsseldorf)
Germany 16 contributions 4384 visits
The German Parliament has passed the 11th reform of the German Act against restraints of competition (ARC). The reform will take effect soon and has three major components: The Federal Cartel Office (FCO) is granted the power to implement behavioural or structural measures if a market (...)

The German Parliament passes the 10th amendment of the German Act against Restraints of Competition
Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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Van Bael & Bellis (Brussels)
Belgium 30 contributions 3998 visits
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 (...)

The German Government submits a draft of the digitalisation act amending national competition law
Van Bael & Bellis (Brussels)
Belgium 24 contributions 4828 visits
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Van Bael & Bellis (Brussels)
Belgium 30 contributions 3998 visits
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 (...)

The German Parliament adopts significant changes to the German Act against Restraints of Competition
EDEKA Verband (Hamburg)
Germany 1 contribution 334 visits
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White & Case (Hamburg)
Germany 10 contributions 36737 visits
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 (...)