Since in 2011, the German Federal Court of Justice has ruled in favour of a company that was an indirect victim of a cartel, actions for damages regarding violations of competition law are becoming more and more important in Germany. German judges usually have recourse to prima facie evidence in favour of the plaintiff. Nevertheless, in order for the judge to estimate the value of the damage, the injured party has to present the facts that allow the presumption of a certain damage. This article highlights the strategies of the German courts and injured parties in order to make the evaluation of their damages more flexible.
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1. Damages actions for breach of competition rules are becoming increasingly well known and growing in Germany. In 2011, the Bundesgerichtshof (Federal Court of Justice) ended many years of litigation by ruling in favour of the plaintiff in the final instance in a damages action against a carbonless paper manufacturer, a member of a cartel[Judgment of the Federal Court of Justice of 28.6.2011 - KZR 75/10, NJW 2012, 928 - ORWI . ]]. Since that decision, German courts have been considered to be in favour of this type of action. The following principles can now be regarded as valid under German law :
– direct victims of undertakings which are members of