Private Litigation 2017

Last verified on Wednesday 27th September 2017

Germany

Martin Sura and Kim Lars Mehrbrey
Hogan Lovells

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?

  2. General remark

    With effect as of 9 June 2017 the EU Directive 2014/104/EU of 26 November 2014 on antitrust damages actions (EU Cartel Damages Directive) was implemented into German law by the 9th Amendment to the GWB (Act against Restraints of Competition). This substantially changed the legal framework for the pursuit of cartel damages claims in Germany. However, many of the provisions of the former legal regime will remain applicable for many years, especially for cartel damages claims that arose before 26 December 2016. Therefore, in the following the legal situation under the new rules as well as – to the extent applicable – under the former legal regime will be explained.

    The Bundeskartellamt (the Federal Cartel Office or FCO) in Bonn.

  3. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

  4. The FCO has investigatory powers. For instance, it can carry out inspections and seize evidence. The criminal proceedings the FCO can bring are limited to administrative offences. The public prosecutor can bring proceedings based on bid rigging. Some competition law violations may also be prosecuted as fraud.

  5. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

  6. Yes, private antitrust claims can be brought in parallel. However, these stand-alone private claims are rather uncommon as most plaintiffs prefer to base their litigation on the fining decision, which is binding for the courts (see question 5). Also, the competition authorities’ proceedings suspend the limitation period of antitrust damage claims (see question 22). 

  7. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

  8. It lies in the discretion of the court to stay the proceedings while a related public investigation or proceeding (or an appeal) is pending. Commentators take the view that article 16 of the Regulation 1/2003 requires the court to stay the proceedings while there are pending investigations by the EU Commission, following the ECJ’s Masterfood decision (paragraph 57). There is no such obligation with regard to proceedings initiated by the FCO, section 33b (previously section 33(4)) GWB (Act against Restraints of Competition).

  9. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

  10. Findings by the EU Commission in decisions are binding in follow-on private antitrust cases, article 16 of the Regulation 1/2003. According to section 33b GWB, final decisions by German and other EU member states’ competition authorities (including final decisions of competent courts of such EU member states acting as such competition authority) are binding in follow-on private antitrust cases only with regard to damages claims. This extends to appeal judgments by the courts.

    The binding effect means that the violation of antitrust rules by the companies found guilty by the competition authority is irrefutably established. However, the binding effect does not comprise the existence of harm and its causal relationship to the competition law infringement. Yet, the newly implemented section 33a (2) GWB establishes the rebuttable presumption that cartel infringements cause harm (see question 23).   

    Moreover, where a final decision is taken by other EU member states’ competition authorities or competent courts regarding violations of the EU member states' national competition rules (which pursue (mainly) the same purpose as article 101 or 102 TFEU), the competent German courts can qualify this decision as prima facie evidence of the violation of these rules. 

    The Energy Industry Act provides for a similar binding effect of decisions by the German Federal Network Agency for private damages claims.  

  11. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?

  12. First, access to leniency applications or settlement submissions will not be granted to claimants (see question 7) – however, pre-existing information (ie, evidence that exists irrespective of the proceedings of a competition authority) can be disclosed.

    Second, the immunity recipient is in the first place jointly and severally liable only for damages of his own direct and indirect customers or suppliers (as well as their customers or suppliers), section 33e (1) sentence 1 GWB. The immunity recipient is jointly and severally liable to other injured parties only where full compensation cannot be obtained from the other cartel members and where the claims against the other cartel members are not time barred, section 33e (1) sentence 2, (2) GWB. 

    To secure their privileged position, immunity recipients are also privileged in the internal recourse between the jointly and severally liable cartel members. The internal recourse is limited to the amount the immunity recipient is liable for with regard of his own direct customers and suppliers, section 33e (3) sentence 1 GWB. This privilege vis-à-vis the other cartel members does not apply to damages claims of injured parties other than the direct or indirect purchasers or providers of the infringers, ie primarily in case of an umbrella pricing, section 33e (3) sentence 2 GWB.

    These privileges are only applicable to damages claims that have arisen after 26 December 2016 (see section 186 (3) GWB).

  13. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?

  14. Prior to the implementation of the 9th Amendment to the GWB in June 2017, access to file was generally granted pursuant to section 406e and 475 StPO (Criminal Procedure Code) – with the exception of leniency applications, the documents submitted with it and business secrets.   

    The FCO usually tries to persuade the plaintiff to limit its request to the final decision. Access to file is usually granted only after the decision has been handed down. Before access is granted, the defendant has a right to be heard.

    Also, third-party interests are taken into account. For example, if a third party was requested by the FCO to submit information it will also be heard (and should request to be heard) and may identify business secrets it wishes to be excluded from access.      

    In appeals against FCO decisions, persons and associations of persons whose interests are substantially affected by the decision and who, upon their application, have been admitted by the cartel authority to the proceedings, may inspect the court files. The FCO can prevent inspection of its records if this is necessary for important reasons, in particular to protect leniency applications and business secrets.

    Now, the 9th Amendment to the GWB introduced a discovery procedure to the GWB (see sections 33g, 89b and 89c GWB, see question 26). These provisions are only applicable to claims that were filed after 26 December 2016 (see section 186 (4) GWB).

    According to section 89b (5) GWB, the claimant can request access to the final decision of the competition authority from the defendant itself by way of a preliminary injunction. The claimant does not need to substantiate a special urgency for this preliminary injunction. Before granting the injunction, the defendant has a right to be heard.

    Pursuant to section 33g (1), (2) GWB, parties of (potential) cartel damages proceedings (as well as third parties) are – if requested – obliged to disclose evidence that is necessary to substantiate a cartel damages claim or to defend oneself against such a claim. The claimant has to present a reasoned request that contains reasonably available facts and evidence that is sufficient to support the plausibility of its claim for damages (usually the decision of a competition authority). The evidence that he or she requests has to be described as precisely and as narrowly as possible on the basis of all reasonably available facts. In accordance with section 33g (4) GWB, documents containing leniency applications or settlement submissions are shielded from disclosure. Also, while in ongoing cartel proceedings, information that was prepared specifically for the proceedings, correspondence from the competition authority to the parties of the procedure and settlement submissions that have been withdrawn are also shielded from disclosure (see section 33g (5) GWB). 

    Pursuant to section 89c (1) GWB, claimants can also request the court to disclose documents and objects included in the competition authority's file. The claimant has to substantiate his claim and that it is not possible for him to obtain the information from the other party or from a third person with reasonable effort. As stated above, some categories of evidence are shielded from disclosure.

    In order to prevent the claimant from bypassing the aforementioned disclosure procedure, the claimant cannot access the competition authority's files based on section 406e and 475 StPO – except for the (final) fining decision, section 89c (5) sentence 2 GWB.

  15. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?

  16. Leniency applications are shielded from subsequent disclosure (section 33g (4), 89c (4) GWB). However, this does not apply to pre-existing information that exists irrespective of the proceedings of a competition authority (see question 7).

  17. 9.

    Is information submitted in a cartel settlement protected from disclosure?

  18. Prior to the implementation of the 9th Amendment to the GWB, information submitted in a cartel settlement was only protected from disclosure as far as it contained business secrets, see questions 7 and 8.

    Now, settlement submissions are protected from disclosure, section 33g (4), 89c (4) GWB (see questions 7 and 8).

  19. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?

  20. Access to the competition authority's files with regard to claims that were filed before 26 December 2016 is granted to plaintiffs in accordance with section 406e and 475 StPO (see question 7). When granting access to files, the FCO, the public prosecutor or the Higher Regional Court in Dusseldorf will consider third-party interests where their business secrets are affected (see question 7). Generally, confidential information or commercially sensitive information submitted by third parties may be brought forward in private antitrust claims. Third parties can best prevent sensitive information from being submitted in private antitrust damages claims by requesting the FCO not to grant access to this information, by refusing to testify with regard to this information and by refusing to submit documents containing this information (see question 27).

    With regard to claims that were filed after 26 December 2016, the disclosure of evidence has to comply with section 33g (1), 89c (1) GWB. A party can refuse to disclose evidence to the extent it would have a right to refuse testimony in a private action for (antitrust) damages, section 33g (6) GWB. The courts can nonetheless order a party to disclose evidence containing confidential information where they consider it relevant to the action for damages, section 89b (6) GWB. Correspondingly, the courts have to take effective measures in order to protect such information during the proceedings, section 89b (7) GWB.

    Commencing a private antitrust action

  21. 11.

    On what grounds does a private antitrust cause of action arise?

  22. The legal grounds are section 33a (1) GWB, section 823 (2) BGB (Civil Code) in conjunction with the respective German or EU antitrust provision and section 826 BGB. 

  23. 12.

    What forms of monetary relief may private claimants seek?

  24. Claimants may seek compensation for damages, interest on those damages and refunding of costs of litigation (see question 40). Treble damages are not available since the aim of cartel damages claims is only to recover the damage actually suffered. 

  25. 13.

    What forms of non-monetary relief may private claimants seek?

  26. Claimants may seek a cease and desist order and in rem restitution, eg, supply and delivery or access obligations.

  27. 14.

    Who has standing to bring claims?

  28. Generally, everyone who has suffered damage may bring claims. In 2011, the Federal Supreme Court held that both direct and indirect customers may bring claims. The same should be true for direct and indirect suppliers. Competitors that suffered from the infringement may also bring claims.

    According to a recent judgment of the ECJ, it is also conceivable for claimants to claim damages from cartel members on the grounds that their suppliers outside the cartel raised their prices due to the cartel (“umbrella pricing”). The Higher Regional Court of Karlsruhe (Case 6 U 204/15 (Kart) (2); judgment of 9 November 2016) recently held that at least in cases where a cartel (i) existed for a longer period and (ii) affected a considerable market share, there is prima facie evidence (see question 23) that prices of suppliers outside the cartel were influenced by the cartel. This decision is however under second appeal (Federal Supreme Court, Case KZR 56/16).

  29. 15.

    In what fora can private antitrust claims be brought in your country?

  30. Claims can be brought before regional courts. Generally, every regional court whose district is affected by the infringement is competent. However, most German states have issued legislation concentrating private antitrust claims in certain regional courts.

  31. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?

  32. International jurisdiction of German courts is determined by Regulation (EC) No 1215/2012 (Brussels Ia), international treaties regarding jurisdiction and German procedural law. 

    Recently, the ECJ (Case C-352/13, judgment of 21 May 2015) held in the hydrogen peroxide case that according to article 6 (1) of the Regulation (EC) No 44/2001 (since 10 January 2015: article 8 (1) of the Regulation (EU) No 1215/2012) cartel members who (i) are situated in different member states, (ii) committed a single and continuous infringement of EU antitrust law, and (iii) are held jointly and severally liable for the damages resulting from this infringement can jointly be sued before a court where only one of them is domiciled (so-called anchor defendant). 

    Furthermore, this judgment has clarified the requirements to establish jurisdiction under article 5 (3) of the Regulation (EC) No 44/2001 (since 10 January 2015: article 7 (2) of the Regulation (EU) No 1215/2012). The court held that according to this provision the courts have jurisdiction where (i) the cartel was definitively concluded or, (ii) if applicable, a particular agreement was made that was the sole cause for the damages claimed by this claimant or where (iii) this claimant's registered office is located. The ECJ also held in this judgment that jurisdiction clauses in supply contracts may only be taken into account in this context, if they refer to disputes regarding liability for infringement of competition law. 

    If the regulations provide for jurisdiction of German courts, the claimant may choose a German court within the limits described in question 15. 

  33. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?

  34. Claims can be brought based on foreign law. The applicable competition law is determined by article 6 (3) of the Regulation (EC) No 864/2007 (Rome II) and domestic international private law.

  35. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?

  36. Plaintiffs must pay a filing fee in order to initiate court proceedings. The filing fee is determined by the amount in dispute which is capped by legal statute at an amount of €30 million. Assuming the value in dispute is €30 million or higher, the filing fee would amount to approximately €330,000 for the first instance. In case the claim is raised by a non-EU citizen/company the claimant, on the defendant’s request, would have to post security for the legal fees to be reimbursed to the defendants in case of a dismissal of the damages claim (see question 40). Depending on the number of defendants those costs can amount to more than €1 million.

  37. 19.

    What is the limitation period for private antitrust claims?

  38. Prior to the implementation of the 9th Amendment to the GWB, the regular limitation period for private antitrust claims was three years commencing at the end of the year in which the claim arose and the plaintiff obtained or ought to have obtained the relevant knowledge, section 195, 199 (1) BGB. Now, the regular limitation period for private antitrust claims is five years commencing at the end of the year in which the claim has arisen, the plaintiff obtained or ought to have obtained the relevant knowledge and the competition violation has ended, section 33h (1), (2) GWB. The five-year regular limitation period is applicable to claims that were not time barred on 9 June 2017, see section 186 (3) sentence 2 GWB.

    Generally, the arising of the damages claim is of minor importance since it usually occurs before the potential claimant obtains knowledge. Knowledge requires that the claimant is aware of the circumstances which enable him to file a lawsuit that has sufficient prospects of success (without having to be risk-free). Grossly negligent lack of knowledge requires that the circumstances which enable the plaintiff to file a lawsuit are obvious. So far, case law provides for different approaches as to which event triggers the relevant knowledge for cartel damages claims. If no other proof is available, some German courts tend to assume that claimants should have obtained knowledge on the day when the press reported on the relevant fining decision (Regional Court of Dusseldorf, case VI-U (Kart) 3/14, judgment of 18 February 2015). In contrast, the Higher Regional Court of Berlin held that there is no duty of a company to frequently monitor business news that might be relevant to its business.

    Also, the German statute of limitation provides for an additional maximum limitation period of 10 years from the day the claim arose – irrespective of whether the claimant had or should have had knowledge of the claim or not (see section 199 (3) No. 1 German Civil Code). The maximum 10-year limitation period under the new regime only starts to run once the competition violation has ended (section 195, 199 (1) BGB and section 33h (3) GWB). 

    Either the above five-year limitation period or the maximum 10-year limitation period will apply, depending on which of the two expires earlier (section 33h (5) GWB).

  39. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?

  40. Time limitations are objections and part of the substantive law. When expired, they bar the claim. They are only taken into account if asserted by the defendant.

  41. 21.

    When does the limitation period start to run?

  42. See question 19.

  43. 22.

    What, if anything, can suspend the running of the limitation period?

  44. Prior to the implementation of the 9th Amendment to the GWB, private antitrust claims were usually first suspended by the initiation of antitrust proceedings by a competition authority, section 33 (5) GWB, section 204 (1), (2) BGB. The suspension period ended six months after the final and binding decision in the antitrust proceedings had been issued.

    Now, having implemented the 9th Amendment to the GWB, the suspension period ends one year after the final and binding decision in the antitrust proceedings has been issued or the antitrust proceedings have ended otherwise, section 33h GWB. The period of one year ensures that the plaintiff has enough time to gather evidence and assert the damages claims. Section 33h GWB is applicable to claims that were not time-barred on 9 June 2017, see section 186 (3) sentence 2 GWB. Moreover, the bringing of an action for disclosure based on section 33g GWB suspends the limitation period of a private antitrust damages claim if filed from 9 June 2017 onwards, section 33h (6) GWB.

    Also, the limitation period is suspended by the bringing of an action for damages. In the period between conclusion of the antitrust proceedings plus a year and the bringing of an action the claims may become time barred. Claimants have various options to avoid this. Most common is the agreement of a waiver of the defence of limitation for a limited period of time. Alternatives are, for instance, arranging for notice to be given of an application for conciliation filed with a conciliation body (section 204 (1) No. 4 BGB) or the service of a demand for payment in summary proceedings for recovery of debt or of the European order for payment in the European order for payment procedure (section 204 (1) No. 3 BGB). Suspension is a “stop-the-clock” rule. After the suspension ends, the clock starts ticking from where it has stopped. The suspension also applies to the maximum limitation period.

  45. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?

  46. The claimant has to substantiate all the requirements for the damages claim.

    However, as to the requirement of an antitrust infringement the claimant can rely on a competition authority’s decision which has a binding effect (see question 5).

    Usually the biggest difficulty that claimants face is to substantiate the damage they suffered due to the cartel. Regarding claims which arose after 26 December 2016 section 33a (2) GWB provides for a refutable presumption that a cartel caused damage (section 186 (3) sentence 1 GWB). Before the new legal regime came into effect the Higher Regional Court of Berlin and the Higher Regional Court of Karlsruhe had ruled that a quota cartel prima facie causes damage to customers. Recently the Higher Regional Court of Karlsruhe (Case 6 U 204/15 (Kart) (2); judgment of 9 November 2016) adopted the same approach. This decision is, however, under second appeal.

    Notwithstanding the statutory refutable presumption and the aforementioned case law, plaintiffs still have to prove the damage actually suffered. 

  47. 24.

    What must plaintiffs show for the court to grant interim relief?

  48. Interim relief is granted if the claimant presents prima facie evidence proving the urgency of the matter and shows that interim relief is required to avoid hardly reversible or irreversible damage. This is in practice only conceivable for cease and desist orders and in rem restitution (see question 13).

  49. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?

  50. The defendant can submit a statement of defence requesting partial or full dismissal of the claim and it may file counterclaims. Options to seek early resolution of the claim are limited. One option is to suggest to the court to issue a judgment on the non-admissibility of the claim in advance. However, the court can stay the proceedings on the merits until a judgment on the appeal (and possibly a further appeal) of the admissibility judgment is handed down. 

    Disclosure/discovery

  51. 26.

    What types of disclosure/discovery are available? Describe any limitations.

  52. In general, in German court proceedings each party has to produce the evidence supporting its line of reasoning. The court does not investigate evidence ex officio. However, the court has the possibility to issue an order demanding a party or a third person to present a specified document. It lies within the court’s sole discretion to issue such an order. Only under strict requirements can a party enforce a court order requiring the other party or third persons to present a document. The requiring party would have to name the specific document and describe the content relevant for the claim. Furthermore, it would have to show that substantive law gives it the right to obtain the document. If the other party does not follow such an order, the court may consider the related statement by the requesting party true.

    The 9th Amendment to the GWB implemented a substantial change to these general standards in relation to cartel damages claims. In section 33g, 89b, 89c GWB the new law introduces a broader disclosure regime for lawsuits which have been filed after 26 December 2016 (section 186 (4) GWB). Now both claimants and defendants can request documents which are necessary to substantiate a claim for cartel damages or to defend against such a claim respectively. 

    The party seeking disclosure has to identify the requested documents as precisely as possible (section 33g (1), (2) GWB). Such a disclosure is not allowed to the extent it is unreasonable taking into account the legitimate interests of the parties (section 33g (3) GWB). This balancing of interests, among other things, has to take into account the likely costs and scope of the requested disclosure as well as the interests of the other party to protect its business secrets. Furthermore, certain documents are excluded from disclosure, in particular documents containing applications for leniency (see question 7).

    The claimant can commence a legal action to pursue its claim for documents even before a claim for damages has been brought. Upon request of one of the parties the court can also ask competition authorities to disclose evidence to a certain extent (section 89c GWB, see question 7).

  53. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?

  54. All information that is submitted in the court proceedings is disclosed to the other party. The public can be excluded if business secrets are discussed. Witnesses may refuse to testify if and to the extent their answers would reveal business secrets. 

    In the context of the new disclosure regime (applicable to lawsuits which have been filed after 26 December 2016, section 186 (4) GWB) the court has to determine whether disclosure would be proportionate and therefore especially to consider the protection of business secrets (see question 26). Likewise, there are exceptions to the right of disclosure regarding, eg, documents containing applications for leniency (see question 26).

  55. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?

  56. Attorney–client communications are granted protection. If the attorney is named as a witness he may refuse to testify insofar as the attorney–client relationship is affected.

    Trial

  57. 29.

    Describe the trial process.

  58. The usual course of the process is (1) statement of claim; (2) statement of defence; (3) usually, several additional statements by the parties; (4) hearing and taking of evidence; and (5) judgment. In case of complex cartel damages claims the hearing may be split into several hearings extending over months. 

  59. 30.

    How is evidence given or admitted at trial?

  60. Witnesses and expert witnesses generally have to appear before the court to testify. Representatives of the parties, such as the managing directors, are not allowed to testify as a witness. Documents may be produced at the parties’ discretion. Expert opinions on factual issues (eg, regarding the calculation of damage) are rendered by experts commissioned by the court.

  61. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?

  62. Experts are commonly used in private antitrust damages claim trials. As such trials usually are follow-on trials, experts are involved to identify the amount of damages and their causal relation to the competition law infringement. Parties may submit reports by their own experts. Such reports do not constitute formal proof, but substantiate the parties’ arguments. The court also can (and often does) appoint an expert to make a report. Usually experts are economists who undertake to identify damages and causal relationships by economic models and empirical data. Experts appointed by the court usually render their opinion in writing and also appear in oral hearings to be interviewed on their report. The court may appoint the expert witness ex officio or following an application by a party.

  63. 32.

    What must private claimants prove to obtain a final judgment in their favour?

  64. The material requirements according to German law are (i) that the defendant has negligently or intentionally infringed antitrust law and (ii) that the claimant has suffered damages due to this infringement. As to the first requirement a final decision by the EU Commission, the FCO or the competition authorities of other EU member states assess the infringement with binding effect (see question 5). Regarding claims arising after 26 December 2016 the new law provides for a refutable presumption that a cartel caused damage (see question 23). Consequently, in the case of a follow-on claim the claimant only has to prove the damage he suffered due to the cartel. Typically, the damages result from the artificial cartel price and a loss of profits. As a first step, the claimant has to substantiate his or her allegations. If the defendant replies with a substantiated statement of defence the claimant has to offer formal proof (see questions 30 and 31). 

  65. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?

  66. The defendant has to demonstrate at least a likely passing-on scenario and that the passing-on was a result of the cartel and not of claimant’s sales efforts. In 2011, the Federal Supreme Court detailed the relevant criteria in the ORWI case. Now, section 33c GWB states the requirements of the passing-on defence and, accordingly, the presumption of the indirect purchaser's passing-on offence.

  67. 34.

    How long do private antitrust cases usually last (not counting appeals)?

  68. Currently the duration is at least two years and often significantly longer. As substantial issues are more and more clarified in the currently pending cases, it is to be expected that the duration will decrease significantly in future cases.

  69. 35.

    Who is the decision-maker at trial?

  70. The case will either be decided by one professional judge or by a panel of three judges. There are no jury trials.

    Damages, costs and funding

  71. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?

  72. The plaintiff usually leaves it to the court to estimate the damages. Therefore, the plaintiff has to submit the facts the court can base an estimate of the damages on pursuant to section 33a (3) GWB in conjunction with section 287 ZPO (Code of Civil Procedure). 

  73. 37.

    How are damages calculated?

  74. Damages are calculated by assessing the difference between the actual, cartelized price and the hypothetical price that would have been charged without the cartel agreement. The challenge lies in establishing the hypothetical price in a cartel free market. The Federal Supreme Court to date seems to favour methods comparing other markets to the cartelised market. Those markets may be the same product market in another geographic region, another product market with comparable features, the same market in another time period or a combination of these markets. It is essential that the comparison market is cartel free. Courts often deduct a safety margin to take account of uncertainties in the comparison. Usually expert witnesses are mandated to produce a comparison based on economic methods. 

  75. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?

  76. Yes, defendants who took part in the same infringement are jointly and severally liable towards the cartel victims, irrespective of whether this cartel victim purchased a cartelised product from them or not. Under the old regime (ie, regarding claims that arose before 26 December 2016) immunity recipients are not privileged. 

    In connection with claims that arose after 26 December 2016 the immunity recipient's joint and several liability is limited to damage suffered by its own direct and indirect customers (see question 6). 

  77. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?

  78. A defendant can seek contribution from other cartel members, including those who are not defendants in the same legal action. Furthermore, for cartel damages claims which arose before 26 December 2016 immunity recipients are liable for contribution as well and do not benefit from any privileges.

    The provisions under the former legal regime did not specify to what extent joint and several debtors are liable in relation to one another. There is also little guidance from case law. Thus, for claims which arose before 26 December 2016 it is highly disputed among scholars how the liability should be attributed between the jointly and severally liable co-cartelists (eg, by market share, by share of commerce with the respective claimant, according to the co-cartelists' contribution to the antitrust infringement (eg, ringleader), or in equal shares).

    For damages which arose after 26 December 2016 section 33d (2) GWB provides that the liability shall be attributed according to each co-cartelist's contribution to the antitrust infringement. This is a general rule from which courts may deviate if they find appropriate. Thus, the cartelist's share of liability is to be determined on a case-by-case basis.

    According to the newly introduced section 33e (3) GWB, the immunity recipient is privileged. This applies to claims which arose after 26 December 2016. To this end co-cartelists can generally only seek contribution from immunity recipients to the extent that they compensated the immunity recipients' direct or indirect customers. Only regarding damages which arose due to an umbrella pricing by non-cartelists, immunity recipients are not privileged. 

    Finally, if a co-cartelist has settled with the claimant, this co-cartelist may not be held liable for contribution claims by the other co-cartelists, ie, not only in the amount which this co-cartelist paid under the settlement agreement but in the amount which corresponds with his actual share of liability, section 33f GWB.

  79. 40.

    Can prevailing parties recover attorneys’ fees and court costs? How are costs calculated?

  80. Prevailing parties can recover attorneys’ fee and court costs. However, the refundable costs are capped by legal statute. The costs are calculated according to the German Attorneys’ Fees Act on the basis of the amount in dispute (see question 18). However, most attorneys specialised in competition law and/or litigation do not charge fees on that basis but on an hourly basis. The refundable costs are, therefore, usually lower than what an attorney specialised in competition law and/or litigation will charge.

  81. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?

  82. The refundable legal costs that the prevailing party can demand are limited by legal statute (see question 40).

  83. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?

  84. Generally, attorneys may not act for claimants on a conditional fee basis except for contingency fees under exceptional circumstances. The fee has to be appropriate and may be, inter alia, a fixed fee, a multiple of the Attorneys’ Fees Act fee or a percentage of the recovered damages. The limitations are more rigorous with regard to the lower end of the appropriate range than with regard to the upper end.

  85. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?

  86. Yes, litigation funding is lawful and has become increasingly popular in the last few years. In particular litigation funding companies from common law jurisdictions have recently entered the German market.

    The present case law accepts third-party prosecution of damage claims with minor restrictions. The Federal Supreme Court ruled that actions by claim vehicles such as Cartel Damage Claims SA (CDC) are admissible. However, the Higher Regional Court of Dusseldorf held that a lawsuit brought by the claim vehicle Cartel Damage Claims SA was unfounded since the scheme used by Cartel Damage Claims SA violated public policy: the claims vehicle acting as plaintiff was found to be under-funded, thus shifting the litigation risks to the defendants. Furthermore, there are formal requirements for the assignment of claims under the German Legal Services Act.

  87. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?

  88. After-the-event insurance for private antitrust claims has to date not been offered in Germany.

    Appeal

  89. 45.

    Is there a right to appeal or is permission required?

  90. There is a right to appeal. Permission is not required.

  91. 46.

    Who hears appeals? Is further appeal possible?

  92. Appeals in cartel damages claims litigation are heard by the higher regional courts (Oberlandesgerichte). The possibility of a further appeal (Revision) to the Federal Supreme Court (Bundesgerichtshof) is limited. The further appeal is only possible if the higher regional court who heard the appeal grants leave to further appeal in its judgment or – in case the higher regional court refuses to do so – the Federal Supreme Court grants leave to further appeal. A further appeal is only allowed on points of law and if the case is of fundamental legal importance.

  93. 47.

    What are the grounds for appeal against a decision of a private enforcement action?

  94. The first appeal may be based on errors in the finding of the facts and the legal assessment. The further appeal to the Federal Supreme Court is limited to errors in the legal assessment.

    Collective, representative and class actions

  95. 48.

    Does your country have a collective, representative or class action process in private antitrust cases?

  96. A joinder of actions is available if they have a sufficient nexus. Representative actions can be brought by certain organisations (see question 49). So far, they have been practically irrelevant. Class actions are still not available even after the recent implementation of the 9th Amendment to the GWB.  

  97. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?

  98. Pursuant to section 33 (4) GWB, professional or trade associations whose members are affected by the cartel and consumer associations can bring actions for cease and desist orders and for skimming off cartel revenues (to the benefit of the government – probably a reason why such actions are practically irrelevant).

    A company named Cartel Damage Claims SA (CDC) has established a model to bundle claims. The persons presumably damaged by a cartel assign their claim to CDC and CDC collectively brings those claims in court (also see question 43). Others have entered that business, too, with similar schemes.

  99. 50.

    What is the standard for establishing a class or group?

  100. Class actions are not available.

  101. 51.

    Are there any other threshold criteria that have to be met?

  102. Class actions are not available.

  103. 52.

    How are damages or settlements distributed?

  104. Class actions are not available.

  105. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned.

  106. Class actions are not available.

  107. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?

  108. Collective settlement in the absence of such claims being made is not available.

  109. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?

  110. No. But if the Federal Cartel Office provides a substantiated assessment of the cartel’s margin, that would be a strong argument in private damages claims actions. Currently, it appears rather unlikely that the FCO will make such substantiated assessment under the current fining guidelines. A finding by the EU Commission on damages would be binding but is equally unlikely.

    Arbitration and ADR

  111. 56.

    Are private antitrust disputes arbitrable under the laws of your country?

  112. Yes.

  113. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?

  114. The existence of a compulsory agreement to arbitrate renders litigation before regular courts inadmissible (if a corresponding objection is made by a party). If a purchase agreement provides for an arbitration clause, it should be checked if it covers cartel damages claims based on tort.

  115. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?

  116. Courts do not compel ADR. A conciliation hearing is a mandatory element of the court proceedings, but usually it is a mere technicality. It is to be expected that courts will increasingly recommend ADR and they may stay the proceedings for the duration of ADR.

    Advocacy

  117. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?

  118. Prior to the implementation of the 9th Amendment to the GWB, the Federal Cartel Office left such efforts mostly to the EU Commission. Unlike the EU Commission, the FCO was especially not obliged to refer to the possibility of private antitrust claims in its press releases. However, pursuant to the newly implemented section 53 (5) GWB, the FCO is now obliged to inform about the goods or services affected by a cartel and to refer to the possibility of private antitrust claims in its public online notifications on cases where it has imposed fines.

    Other

  119. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.

  120. Germany has been an attractive forum for cartel damages claimants for many years. However, it has been often criticised that claimants only had very limited possibilities to obtain information helping them to substantiate their claim. Other than in common law jurisdictions claimants were generally not entitled to request the opposing party to disclose information. Due to the implementation of the EU Cartel Damages Directive by the 9th Amendment to the GWB, German law now provides for a far more extensive disclosure regime. Even though the German disclosure regime will stay behind the scope of disclosure rights in common law jurisdictions, many experts expect that these developments will attract more claimants to Germany.

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Questions

    Effect of public proceedings

  1. 1.

    What is your country’s primary competition authority?


  2. 2.

    Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?


  3. 3.

    Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?


  4. 4.

    Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?


  5. 5.

    Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers’ decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?


  6. 6.

    Do immunity or leniency applicants in competition investigations receive any beneficial treatment in follow-on private antitrust cases?


  7. 7.

    Can plaintiffs obtain access to competition authority or prosecutors’ files or the documents the authorities collected during their investigations? How accessible is information prepared for or during public proceedings by the authority or commissioned by third parties?


  8. 8.

    Is information submitted by leniency applicants shielded from subsequent disclosure to private claimants?


  9. 9.

    Is information submitted in a cartel settlement protected from disclosure?


  10. 10.

    How is confidential information or commercially sensitive information submitted by third parties in an investigation treated in private antitrust damages claims?


  11. Commencing a private antitrust action

  12. 11.

    On what grounds does a private antitrust cause of action arise?


  13. 12.

    What forms of monetary relief may private claimants seek?


  14. 13.

    What forms of non-monetary relief may private claimants seek?


  15. 14.

    Who has standing to bring claims?


  16. 15.

    In what fora can private antitrust claims be brought in your country?


  17. 16.

    What are the jurisdictional rules? If more than one forum has jurisdiction, what is the process for determining where the claims are heard?


  18. 17.

    Can claims be brought based on foreign law? If so how does the court determine what law applies to the claim?


  19. 18.

    Give details of any preliminary requirement for starting a claim. Must plaintiffs post security or pay a filing fee? How is service of claim affected?


  20. 19.

    What is the limitation period for private antitrust claims?


  21. 20.

    Are those time limits procedural or part of the substantive law? What is the effect of their expiry?


  22. 21.

    When does the limitation period start to run?


  23. 22.

    What, if anything, can suspend the running of the limitation period?


  24. 23.

    What pleading standards must the plaintiff meet to start a stand-alone or follow-on claim?


  25. 24.

    What must plaintiffs show for the court to grant interim relief?


  26. 25.

    What options does the defendant have in responding to the claims and seeking early resolution of the case (eg, answer, counterclaim, motion to dismiss, summary judgment)?


  27. Disclosure/discovery

  28. 26.

    What types of disclosure/discovery are available? Describe any limitations.


  29. 27.

    How do the courts treat confidential information that might be required to be disclosed or that is responsive to a discovery proceeding? Is such information treated differently for trial?


  30. 28.

    What protection, if any, do your courts grant attorney–client communications or attorney materials? Are any other forms of privilege recognised?


  31. Trial

  32. 29.

    Describe the trial process.


  33. 30.

    How is evidence given or admitted at trial?


  34. 31.

    Are experts used in private antitrust litigation in your country? If so, what types of experts, how are they used, and by whom are they chosen or appointed?


  35. 32.

    What must private claimants prove to obtain a final judgment in their favour?


  36. 33.

    Are there any defences unique to private antitrust litigation (eg, Noerr-Pennington defence, passing-on defence)? If so, which party bears the burden of proving these defences?


  37. 34.

    How long do private antitrust cases usually last (not counting appeals)?


  38. 35.

    Who is the decision-maker at trial?


  39. Damages, costs and funding

  40. 36.

    What is the evidentiary burden on plaintiffs to quantify the damages?


  41. 37.

    How are damages calculated?


  42. 38.

    Does your country recognise joint and several liabilities for private antitrust claims?


  43. 39.

    Can a defendant seek contribution or indemnity from other defendants, including leniency applicants, or third parties? Does the law make a clear distinction between contribution and indemnity in antitrust cases?


  44. 40.

    Can prevailing parties recover attorneys’ fees and court costs? How are costs calculated?


  45. 41.

    Are there circumstances where a party’s liability to pay costs or ability to recover costs may be limited?


  46. 42.

    May attorneys act for claimants on a contingency or conditional fee basis? How are such fees calculated?


  47. 43.

    Is litigation funding lawful in your country? May plaintiffs sell their claims to third parties?


  48. 44.

    May defendants insure themselves against the risk of private antitrust claims? Is after-the-event insurance available for antitrust claims?


  49. Appeal

  50. 45.

    Is there a right to appeal or is permission required?


  51. 46.

    Who hears appeals? Is further appeal possible?


  52. 47.

    What are the grounds for appeal against a decision of a private enforcement action?


  53. Collective, representative and class actions

  54. 48.

    Does your country have a collective, representative or class action process in private antitrust cases?


  55. 49.

    Who can bring these claims? Can consumer associations bring claims on behalf of consumers? Can trade or professional associations bring claims on behalf of their members?


  56. 50.

    What is the standard for establishing a class or group?


  57. 51.

    Are there any other threshold criteria that have to be met?


  58. 52.

    How are damages or settlements distributed?


  59. 53.

    Describe the process for settling these claims, including how damages or settlement amounts are apportioned.


  60. 54.

    Does your country recognise any form of collective settlement in the absence of such claims being made? If so, how are such settlements given force and can such arrangements cover parties from outside the jurisdiction?


  61. 55.

    Can a competition authority impose mandatory redress schemes or allow voluntary redress schemes?


  62. Arbitration and ADR

  63. 56.

    Are private antitrust disputes arbitrable under the laws of your country?


  64. 57.

    Will courts generally enforce an agreement to arbitrate an antitrust dispute? What are the exceptions?


  65. 58.

    Will courts compel or recommend mediation or other forms of alternative dispute resolution before proceeding with a trial? What role do courts have in ADR procedures?


  66. Advocacy

  67. 59.

    Describe any notable attempts by policymakers to increase knowledge of private competition law and to facilitate the pursuit of private antitrust claims?


  68. Other

  69. 60.

    Give details of any notable features of your country’s private antitrust enforcement regime not covered above.