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 15% to be paid if the supplier participates in anti-competitive behaviour to be unlawful. This issue is of high relevance not only for the terms and conditions for procurement but also for other standard terms and conditions of purchase, where similar clauses are used to facilitate the private enforcement of antitrust damages.
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