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published on 22 February 2023 | reading time approx. 3 minutes
Antitrust violations among competitors can regularly result in cartel damages claims from potentially harmed customers in addition to high fines of up to 10 percent of the annual group turnover. In recent years, cartel damages law in Germany – also under the influence of the EU Cartel Damages Directive – has become increasingly plaintiff-friendly and litigation has increased. At the end of 2022, in the "Schlecker ruling", the Federal Court of Justice (BGH) ruled on the presumption of damage in the case of illicit information exchange and thus clarified another question of interpretation in a rather plaintiff-friendly manner. This article summarises the main findings.
The German Act Against Restraints of Competition (GWB) contains various provisions that simplify the enforcement of cartel damages claims for cartel victims. Among other things, under Sec. 33a (2) GWB there is a rebuttable presumption that a cartel results in harm and that legal transactions with cartel participants that fall within the scope of a cartel in terms of product type, time period and geographic area were covered by that cartel. Damaged parties do not have to prove the cartel violation in damages proceedings but can rely on the binding effect of the cartel authority's decision (Sec. 33b GWB), to which they have facilitated access. Furthermore, they even have a claim to the surrender of evidence (Sec. 33g GWB) and benefit from long limitation periods (Sec. 33h GWB). In addition, the injured parties can claim damages from any of the cartel participants, not only from their own contracting party, due to joint and several liability (Sec. 33d GWB).
In recent years, the ECJ and the BGH have clarified various questions of interpretation in cartel damages, often to the advantage of the plaintiffs. A few examples: The ECJ recently questioned the knowledge-independent limitation of the cartel infringement, as it also exists in German law, and assumed a late point in time for the knowledge triggering the limitation, namely the publication of the decision imposing the fine (truck cartel). In the rail cartel, the BGH confirmed, among other things, liquidated damages and recognised damages also in the case of indirect purchasers. In a cartelised market, according to the BGH, cartel damages are even possible when purchasing goods from competitors not participating in the cartel (so-called cartel outsiders).In addition, the BGH has stated that in cartel damages proceedings there is a presumption that price, territorial and quota cartels lead to cartel-related price increases. Although this does not result in prima facie evidence or a reversal of the burden of proof, the presumption is an important indication, which must be taken into account by the judge in the context of an overall assessment when determining damages.
In its Schlecker ruling (KZR 42/20), the BGH continued the above-mentioned case law on the presumption of damage. It ruled that there is (also) a high probability and thus a presumption that the exchange of information on prices leads to higher prices due to the cartel. This does not absolve the plaintiffs from having to make a substantiated case for cartel damages. However, the defendant cartelists will probably have to prove in future that the obtained price information had no influence on their own market behaviour. So far, some courts of instance have been reluctant to find damages after an exchange of information in violation of cartel law, especially in the drugstore cartel and the truck cartel. This will presumably change in the future.Since the ruling was still issued under the old legal situation, the BGH has not yet decided whether the exchange of information on prices will in future also fall under the presumption of damage under Sec. 33a (2) GWB. The better arguments certainly speak in favour.The following aspect is interesting for compliance practice. In the Schlecker ruling, the BGH explicitly pointed out (as did the Federal Cartel Office) that even a single participation in a meeting of a working group at which competitively sensitive information is exchanged is sufficient to cause an anti-competitive outcome.
If companies become aware that there have been cartel agreements at upstream market levels and, in particular, fine proceedings by a cartel authority, they should check whether claims for damages can be enforced. Managing directors are even obliged to do so. The plaintiff-friendly legal regulations and a tendency towards plaintiff-friendly case law of the BGH considerably simplify the enforcement of such claims. Due to the long statute of limitations and its plaintiff-friendly interpretation, enforcement is often possible years or even decades later. The Schlecker ruling of the BGH shows that cartel damages can be recognised by the courts not only in the case of price fixing or territorial and quota cartels, but also in the case of an exchange of (price) information in violation of cartel law. Cartel-related price surcharges of 10 percent and more are not uncommon, so that it can be worthwhile to enforce claims.
Johannes Scherzinger, LL.M. (King’s College London)
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