The European, Middle Eastern and African Antitrust Review 2017

Germany: Private Antitrust Litigation

Why litigate in Germany? There are obvious reasons why Germany is one of three European jurisdictions in which private antitrust litigation, in particular private damage claims, have become a significant factor of competition law enforcement. Following significant changes introduced to its national competition legislation in 2005, German courts are building up a body of case law step by step, clarifying issues that needed clarification. Under German law, its civil courts are already bound by a national authority’s decision establishing an infringement of competition law (provided that this decision has become final and unappealable).1 In a growing body of judgments, German courts considered that decisions by competition authorities establishing an infringement constitute prima facie evidence that the sale of cartelised products during the cartel period had been effected by the cartel as found by the competition authority. In addition, there is prima facie evidence that at least long-lasting cartels lead to inflated prices and thus lead to damages sustained by those purchasing the cartelised product.

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