The German Federal Court of Justice rules on the standard of proof for the existence of a revenue surplus from a cartel agreement (Transportbeton Berlin)

On June 28, 2005, the German Federal Court of Justice (FCJ) clarified the standard of proof in cases in which the state seeks to disgorge the revenue surplus (“additional proceeds”) from a cartel. I. Facts of the case Between 1995 and 1998, nearly all producers of ready-mixed concrete in the vicinity of Berlin had joined in a production quota cartel. In 1995, the price per cubic metre was approximately at DM 132 (€ 66) with an overall industry output of 4 million cubic metres in the relevant market. While the cartel was in effect, the price per cubic metre rose to DM 150 (€ 75). Nevertheless, due to a boom in the building industry at the time, the demand rose to 4.5 million cubic metres. When the economic downturn in the building industry came about in 1997/1998, the demand fell to 2.6