Private antitrust litigation in Germany: overview

A Q&A guide to private antitrust litigation in Germany.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Albrecht Bach and Christoph Wolf, OPPENLÄNDER Rechtsanwälte
Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

German antitrust law greatly facilitated follow-on actions by making infringement decisions by national competition authorities in the EU binding for subsequent private litigation. As a result, actions for damages are predominantly follow-on cases. However, it is still possible to bring stand-alone cases. With the exception of cartel damage claims, stand-alone claims are the standard proceedings of private antitrust litigation.

Stand-alone actions are available for any kind of antitrust infringement, regardless of whether behaviour is bi-lateral, multi-lateral or unilateral.

Legislative. The Act on Restraints of Competition (ARC) offers an express legislative basis for bringing a private antitrust proceeding. The following provides the basis for:

  • Action for injunctive relief with regard to an antitrust infringement (section 33( 1) , ARC).

  • Action for damages with regard to an antitrust infringement (section 33( 3) , ARC).

There are also special rules regarding interest and the suspension of limitation periods in the ARC. Furthermore, general civil law (German Civil Code) and civil procedure (German Code of Civil Procedure) is applicable.

Non-legislative. Not applicable.

Adversarial or inquisitorial. Stand-alone actions are adversarial.

Follow-on actions

Follow-on actions are the predominant feature. The civil courts are bound by a national authority's decision or a decision of the European Commission establishing an infringement of antitrust law, provided that this decision has become final and non-appealable (section 33( 4) , ARC). While there is still some debate around the precise reach of this "binding effect", it is established that a civil court deciding on a damage claim is bound by a final and non-appealable decision that a competition law infringement as described in this decision took place. This includes the participants in the cartel (or more generally in the infringement), the type of competition law infringement, but also the facts on which the authority relied to establish the infringement.

Follow-on actions are available for any kind of antitrust infringement, regardless of whether behaviour is bi-lateral, multi-lateral or unilateral.

Legislative. The primary legislative basis for bringing a follow-on action is Section 33 of the Act on Restraints of Competition (ARC). The following provides a basis for:

  • Action for injunctive relief with regard to an antitrust infringement (section 33(1), ARC).

  • Action for damages with regard to an antitrust infringement (section 33(3), ARC).

The civil courts are bound by a national authority's decision or a decision of the European Commission establishing an infringement of antitrust law, provided that this decision has become final and non-appealable (section 33( 4) , ARC). There are also special rules regarding interest and the suspension of limitation periods in the ARC. Additionally, general rules on damages, interest, statutory limitation in the German Civil Code apply.

Non-legislative. Not applicable.

Adversarial or inquisitorial. Follow-on actions are adversarial.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

To commence an action the claimant must demonstrate an antitrust infringement by which he is adversely affected. Any party who is adversely affected by the infringement has standing to bring an action. Third parties and both direct and indirect purchasers can bring actions. Parties to an infringing agreement can bring actions against other infringing parties to the agreement. In particular, consent to an agreement will not exclude the application of the prohibitions on the abuse of dominance or the application of the rules on restrictive agreements.

Follow-on actions

See above, Stand-alone actions.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. It is possible to bring actions on behalf of multiple claimants. German law of civil procedure allows for joint actions of several claimants if this enhances procedural economy. This type of joint action is available if the claims of the different claimants are based on the same facts (for example, the same antitrust infringement). Formally, the legal relationships between the different claimants and the defendants stay independent from one another. However, this type of action allows for joint hearings, joint hearing of evidence and joint decisions of the court. Courts can also join proceedings of different claimants according to these principles at a later stage of the proceedings. Courts can also separate proceedings of different claimants, for example, if the court is only competent for the proceeding of one of the claimants.

Opt-in or opt-out. There are currently no means of collective redress in the area of antitrust. Claimants must explicitly join actions of other claimants. Claimants who want to act jointly will typically have to co-ordinate before launching an action.

Certification. Not applicable.

Follow-on actions

See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

Domicile is the fundamental principle of German jurisdiction. Claimants can bring actions based on antitrust infringements against corporate entities domiciled in Germany. Additionally, jurisdiction may be based on the place of the infringement as the tortious act. Traditionally, German courts applied a wide interpretation of the locus delicti principle. Some recent judgments prefer the European Court of Justice's (ECJ) restrictive approach under Case C-352/13 – CDC Hydrogene Peroxide restricting jurisdiction in cartel damage cases to either:

  • The place in which the cartel was definitively concluded.

  • The place in which one agreement in particular was concluded that is identifiable as the sole causal event giving rise to the loss allegedly suffered.

  • The place where the harm was suffered, typically the registered offices of the entity harmed by the cartel.

Jurisdiction in actions against corporate entities domiciled outside Germany may be based on the Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation), or, regarding non-EU countries, on applicable treaties and ultimately on the locus delicti principle. Generally, the German courts must arrange for service to corporate entities domiciled outside Germany, no specific application for leave is required.

Follow-on actions

See above, Stand-alone actions.

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

It is highly disputed to what extent actions based on own antitrust infringements can be brought against individuals who do not qualify as an undertaking. However, individuals may be liable as instigators or accessories, which are equivalent to joint tortfeasors under German law. There is at least one prominent case in which the Dusseldorf Court of Appeals held the manager of a company dealing in bathroom fittings to be jointly and severally liable for an infringement as he caused the company's personnel to enter into the restrictive agreement (Decision of 13 November 2013, file number VI-U (Kart) 11/13).

Follow-on actions

See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

The applicable law for the limitation periods are:

  • German Civil Code (GCC) (sections 195 and 199).

  • Act on Restraints of Competition (ARC) (section 33(5)).

This law is applicable to both stand-alone and follow on actions.

There is a standard limitation period of three years beginning at the end of the year the claimant obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence (sections 195 and 199(1), GCC). In several cases, lower regional courts held that the claimant obtained knowledge of the claim at the latest with the publication of the decision by a competition authority. However, the Federal Supreme Court did not have an opportunity to rule on the relevant time of knowledge.

There is a second limitation period of ten years (regardless of any knowledge of the claim) that starts when the claim arises (section 199(3), GCC). The claim arises with occurrence of a damage or a separable part of the damage. There is also a limitation period of 30 years, beginning with the infringement or any other action that led to the damage (section 199(3), GCC).

The limitation period is suspended during the investigation of a competition authority (section 33(5), ARC). In practice, cartelists and possible claimants often conclude tolling, waiver, or standstill-agreements to suspend the limitation periods.

German law qualifies limitation periods as part of its substantive rules. The rules on statutory limitation will apply to the extent German law is the law applicable to the infringement. This is in line with Article 15 of the Regulation (EC) 864/2007 on the law applicable to non-contractual obligations (Rome II).

Follow-on actions

See above, Stand-alone actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

Claimants can commence stand-alone and follow-on actions before specific antitrust courts. These specific antitrust courts are competent for one or more circuits. Each German state (Land) has one, two or three specific antitrust courts determined by specific legislation.

Follow-on actions

See above, Stand-alone actions.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Stand-alone actions

There are cases in which different specific antitrust courts have local jurisdiction, for example, the court where:

  • The defendant is domiciled.

  • The harm occurred (in many cases this is where the claimant is domiciled).

Some of these specific antitrust courts are more experienced than others and some work faster than others. However, in principle there are no general advantages and disadvantages regarding these courts, which all follow the same procedural and substantive rules.

Follow-on actions

See above, Stand-alone actions.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

The claimant must demonstrate to the conviction of a judge that there has been an infringement causing harm to the claimant. The court is bound by a finding of the European Commission or a national European Competition Authority that an infringement has occurred (section 33(4), Act on Restraints of Competition (ARC)).

Burden of proof

Under general standards, the burden to proof a competition law infringement and a damage caused by this infringement is on the claimant. However, the claimant does not have to prove the infringement if there is a final and non-appealable decision of the European Commission or a national European Competition Authority that an infringement has occurred (section 33(4), ARC).

The defendant must prove that there has been a pass-on of the overcharge caused by the cartel to the purchasers of the claimant. Under specific circumstances, following substantive pleadings of the defendant claiming pass-on, the claimant may have a secondary burden of proof regarding elements in his knowledge relevant to pass-on.

In case of unilateral conduct, the defendant must prove objective justification for the conduct, if there is no final and non-appealable decision of the European Commission or a national European Competition Authority that an infringement has occurred.

Rebuttable presumptions

German jurisprudence has established a rebuttable presumption of loss (prima facie evidence) regarding antitrust breaches resulting from cartels.

 
10. Is liability on a joint and several basis?

Liability for antitrust infringements is on a joint and several basis. In an action by an undertaking that is harmed by the infringement, the court does not have to apportion the liability, as every party to the infringement must compensate for the whole damage. The liability only has to be apportioned in case of actions for contribution among co-infringers. If the parties of the infringement did not conclude an agreement on the portions of their liability, the court apportions the liability according to the specific circumstances of the case relying primarily on the respective share of causation.

Claimants can also seek damages against cartel members for purchases they made from non-cartel members on the basis that the cartel led to them paying inflated prices (umbrella effect). The claimant bears the burden of proof for umbrella damages. Some lower courts confirmed a significant likelihood of purchases from cartel outsiders being affected by a national cartel. The exact standard of proof and if there is a rebuttable presumption for umbrella damages has yet to be determined.

A defendant can commence a contribution claim against other infringing parties, regardless if they are party to the action in question or not. A jointly liable infringer may also claim indemnification from part of the claimant's claims, prior to his own payment to the claimant.

To the authors' knowledge, it is extremely rare for contribution claims in relation to antitrust infringements to be brought in public courts.

For contribution claims, the same general limitation periods apply as for damage claims. However, in the absence of specific rules for contribution, it is highly disputed whether the knowledge-based standard three-year limitation period runs prior to any claim being made by an entity harmed or prior to any decision establishing liability. If this was the case, most contribution claims among co-cartelists are likely to be time-barred.

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Stand-alone actions

The court fees are fixed by law and are dependent on the amount in dispute. For large claims, court fees (and statutory attorneys' fees) are capped. Apart from court fees and attorney fees, claimants will regularly incur costs for an economic expert opinion estimating the amount of damages. These reports can trigger significant upfront costs and it is not fully established to what extent a successful claimant can later recover these costs. Following a hotly debated decision of the Düsseldorf Court of Appeal (Decision of 18 February 2015, file number VI-W (Kart) 1/15), third party interveners may be entitled to compensation of costs based on the full amount in dispute. Third-party interventions have become standard in damage cases as defendants regularly serve third party notices on co-infringers to improve their position for contribution claims. The Düsseldorf decision created significant additional financial risks for claimants. According to the draft implementation legislation of Directive 2014/104/EU on actions for damages under national law for infringements of competition law provisions of the member states (Anti-trust Damages Directive), this decision will be expressly corrected.

Follow-on actions

See above, Stand-alone actions.

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

The loser pays for the costs of the opponent or the opponents and for the costs of the interveners of the opponent, if applicable. The courts decide on the costs of the case along with a judgment on the merits.

Follow-on actions

See above, Stand-alone actions.

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

There are no restrictions on insurance against these risks. In fact, a number of German insurance companies offer insurance or funding solutions. It is a rather uncommon practice for the parties to insure against cost risks.

Follow-on actions

See above, Stand-alone actions.

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

There are no restrictions on third party funding. A number of antitrust damage claims have been financed by international litigation funding specialists. The most prominent examples are funds made available by Burford Capital and Calunius Capital.

Follow-on actions

See above, Stand-alone actions.

 
15. Can claimants assign their claim to a third party funder?

Assignment to third party funders or special purpose vehicles is possible, although recent jurisprudence urges for great care in structuring the assignments. The assignee must be sufficiently funded to cover court fees and cost claims from defendants at the time of the assignment. In parallel, a licence under the Legal Services Act (Rechtsdienstleistungsgesetz) is most likely required.

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

Stand-alone actions

Regarding legal representation by members of the German Bar, conditional fee arrangements and damages-based fee arrangements are not permitted.

Follow-on actions

See above, Stand-alone actions.

 
17. If it possible for a defendant to a claim to bring an application for security for costs?

A defendant can claim security for the costs of the proceeding if the claimant does not have his habitual place of abode within the EU or the EEA. There are exceptions from the claimants' obligation for security of costs, if:

  • There are international treaties, according to which no such security deposit can be demanded.

  • The decision as to the defendant's reimbursement of the costs would be enforced based on international treaties.

  • The claimant possesses real estate assets, or claims secured in rem, in Germany that cover the costs of the proceedings.

  • The action of the claimant is a counterclaim.

  • Proceedings have been brought in the courts based on public notice given by a court.

The defendant must claim security for costs before the first oral proceedings or in the statement of defence if a there is a deadline for the statement of defence. The amount of the security to be provided is assessed by the court at its sole discretion. The court must base its decision on the costs of the proceedings the defendant will likely have to pay. The court determines a period within which the security is to be provided. If the period expires without provision of the security and the defendant makes a corresponding application, the court declares the action as having been withdrawn.

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

Stand-alone actions

The time from commencing a follow-on damages action regarding a hard-core cartel to a subsequent first instance judgment by a competent body ranges from one to three years. Courts with more experience recently tend to decide in one year. Courts with less experience tend to need more time. However, there are exceptions in both directions. In more complex cases, the time might be longer (for example, regarding unilateral conduct). There are antitrust litigation cases on damages for unilateral conduct pending for more than five years. Factors that are likely to increase this period include the:

  • Necessity to appoint a judicial expert to examine the economic expert opinions by the parties.

  • The number of complex procedures the respective court has to handle in parallel.

Follow-on actions

See above, Stand-alone actions.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Stand-alone actions

Third parties adversely affected by the infringement or otherwise able to show a legal interest can seek to obtain access to the court's file by filing an application. Granting access is within the court's discretion and is likely to be refused where business secrets are concerned.

Follow-on actions

See above, Stand-alone actions.

 
20. Can a claimant seek interim measures?

Stand-alone actions

A claimant can apply for interim measures. It is possible to obtain injunctive relief for an alleged antitrust infringement before a full trial. Injunctive relief is available in cases in which the claimant otherwise would face considerable competitive disadvantages, for example permanent loss. Typical cases of injunctive relief are actions aimed at (continuous) supply of an undertaking by another undertaking, for example in case a manufacturer changes his distribution system and terminates agreements with individual dealers. However, courts will thoroughly examine if the injunctive relief is adequate, because in many cases it will anticipate a decision in the main proceedings.

It is also possible to obtain interim relief as far as harm is threatened, but not yet manifest. The requirements for interim relief on a "quia timet" basis can be fulfilled if there is a risk of recurrent infringement or other circumstances pointing to an infringement (for example, the announcement of a future behaviour constituting an infringement).

Interim relief is often relevant in cases involving dominant undertakings. The assessment of market dominance involves a complex analysis of specific markets, the relevant undertakings on these markets and their specific behaviour on these markets. This is one of the reasons why courts can be reluctant to grant interim relief. However, if dominance was established in previous decisions and the type of behaviour clearly belongs to established categories of abuse, injunctive relief is available. In a number of areas courts have also recognised that anticipation of main proceedings cannot be avoided without jeopardising effective relief.

To implement the Anti-trust Damages Directive, the Federal Ministry for Economic Affairs and Energy proposed a new provision, which would introduce injunctive relief to obtain documents in private antitrust litigation. Under the proposed provision, claimants can demand certain evidence necessary to raise or substantiate the claim by way of interim relief. The provision is applicable only if there is an infringement by the opponent stated in a final and non-appealable decision of the European Commission or a national European Competition Authority. Injunctive relief would be available in the absence of a threat of considerable disadvantages or permanent loss. Certain types of documents would be excluded in this provision, for example corporate leniency statements.

Follow-on actions

See above, Stand-alone actions.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

There is no equivalent to the English strike-out rules under the German rules of civil procedure.

There is no equivalent to a summary judgment under the German rules of civil procedure. Therefore, a defendant cannot apply to obtain summary judgment for all or part of a stand-alone or follow-on action. German courts are likely to pronounce separate judgments on admissibility in case their jurisdiction or other requirements for admissibility are doubtful.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Staying a claim

There is no strict rule under which an action is stayed if there is an ongoing competition authority investigation into the same alleged infringement or where a decision or judgment relevant to the action is under appeal. It is unclear to what extent the legal requirement of a decision "depending wholly or in part" on a legal relationship that is the subject matter of other proceedings applies to investigative proceedings of a competition authority. Attempts by defendants to have proceedings stayed had failed, as the claimant is not restricted to rely exclusively on the findings of a competition authority. However, the outcome may be different if the claimant, who is entitled to rely on a decision of the competition authority, applies for a stay of proceedings.

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

There is no formal possibility to have a trial on a specific issue opposed to a full trial. However, courts are inclined to treat questions of admissibility as a preliminary issue. Additionally, courts frequently consider a separate judgment on the substance of the claims in damage cases and will decide separately on questions of quantum. This is at the court's discretion.

The parties can agree in advance of a trial to have a "full trial" only about a separable part of the infringement (for example, region) or a specific amount of the damage. As a result, the claimant will limit his action in the agreed way. The parties must not agree in advance to have a trial only about specific legal aspects (for example, limitation) and exclude other legal aspects. This is according to the general principles of civil procedure law.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

The court is bound by a final and non-appealable decision of the European Commission or a national European Competition Authority that an infringement has occurred (section 33(4), Act on Restraints of Competition (ARC)). This includes the:

  • Participants in the infringement.

  • Type of competition law infringement.

  • Facts on which the authority relied to establish the infringement (for example, the relevant market).

Judgments

The court is bound by a final and non-appealable judgment by a court acting as a competition authority in the European Union or a judgment by which the decision of a competition authority is confirmed (section 33(4), ARC). The "binding effect" is the same as competition authority decisions.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

The court is bound by all of the following (section 33( 4) , Act on Restraints of Competition ( ARC)):

  • A final and non-appealable decision of a national European competition authority.

  • A final and non-appealable judgment by a court acting as a competition authority in the EU.

  • A judgment by which the decision of a competition authority is confirmed that an infringement has occurred.

To the authors' knowledge, there is no case law concerning the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country outside the EU. The authors' assume the court would consider this at best as a type of prima facie evidence that the defendant would have to shatter.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

There is no procedure for discovery. However, there are general rules in the German Civil Procedure Code which allow specific documents to be claimed from the opponent during a trial. Currently, these rules are very rarely applied in antitrust cases. It is not established to which documents these rules can be applied. Generally, claimants will rather apply for access to the records of the competition authority (Federal Cartel Office) to obtain the documents like the decision of the competition authority stating an infringement.

To implement the Anti-trust Damages Directive, the Federal Ministry for Economic Affairs and Energy proposed a new provision regarding evidence for private antitrust litigation. According to the proposed provision, claimants would be entitled to demand certain evidence necessary to raise the claim. Some documents would be excluded in this provision (for example, corporate leniency statements).

It is not impossible but very difficult in practice to obtain copies of confidential versions of the decision of competitions authorities, copies of leniency materials and other documents or materials. Currently, the most promising way is to apply for access to records of the competition authority. Claimants can then at least obtain a non-confidential version of the decision stating the infringement. It remains to be seen if the new provisions proposed by the Federal Ministry for Economic Affairs and Energy will improve this situation, if they enter into force.

In principle, documents can be obtained before or during a trial from the competition authority. Under the applicable rules of criminal procedures, every person that may have been harmed by the infringement can claim access to the file of German competition authorities. In practice, the Federal Cartel Office will oppose every access to its files exceeding the mere decision stating the infringement.

 
27. Can a party oppose the provision of any documents not in their possession or control?

German civil procedures are traditionally based on the principle of party presentation of evidence. It is rare for German courts to apply the provisions of the German Code of Civil Procedures that allow for the provision of documents that are in the possession of the opposing party or even third parties. This will change following transformation of the Anti-trust Damages Directive.

Under current legislation, a party must not oppose the provision of documents in their possession if ordered by the court. However, the parties will try to influence the court to use its wide discretion in their favour.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

There are, to the authors' knowledge, no cases that tested legal privilege under the German rules of document production. As the law currently stands, there is no written exception covering privileged documents. Legal privilege under German law has been a concept protecting certain documents from inspection, seizure and use by public authorities. It has not been developed as a concept protecting documents in private litigation.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

Generally, German law favours alternative dispute resolution (ADR). There is no restriction to resolve antitrust issues by arbitration or mediation.

The parties are in principle not required to engage in alternative dispute resolution before trial. However, there are individual courts that ask the parties to engage in alternative dispute resolution before trial. Beyond that, although we know of cases in which the parties submit to ADR prior to trial, this is still a rather rare feature.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Stand-alone actions

Advantages. A settlement can save both parties costs and efforts including management attention. It can also "bring peace" between the parties, extending beyond the scope of the pending procedure. A settlement could therefore include parallel infringements in other jurisdictions. Tactically, an early settlement with one of several co-infringers sends a signal to the court and other defendants that the claimant has a valid case.

Disadvantages. To some a settlement offer may indicate weaknesses. Settlement offers at a time prior to the expiration of limitation periods may also invite hesitant potential claimants to bring their claims.

Follow-on actions

See above, Stand-alone actions.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

There is no permission required from the relevant court or tribunal to settle any action before or during trial.

The parties of a settlement typically agree on the cost implications of a settlement. This can include that each party bears its own costs and the half of the court fee.

Settlements tend to be final. The relevant court or tribunal does not remain able to make any order following such settlement other than with respect to costs.

The same holds for bundled claims of several claimants. As formally the legal relationships between the different claimants and the defendants stay independent from one another, a settlement can be limited to the bilateral relationship of one claimant and a particular defendant. The procedure will continue for all non-settled claims and procedural relationships. Generally, the settling parties agree on costs separately, otherwise the court's decision on costs will reflect the different amounts in dispute and procedural relationships before and after the settlement.

 

Proceedings at trial

32. Are actions heard by a jury?

There is no jury in German civil proceedings. The actions are heard by judges. In the case of actions for damages, there are three professional judges. Other cases based on antitrust law may also be heard by chambers for commercial matters that will only have one professional judge and two (lay) commercial judges.

 
33. How is confidential information protected during the course of proceedings?

Prior to the implementation of the Anti-trust Damages Directive, there are no established means to protect confidential information in court proceedings. Generally, the court's file is open to the parties.

Court hearings must be public. The court may exclude the public from a hearing if an important business or trade secret is mentioned, the public discussion of which would violate overriding interests meriting protection (section 172, Courts Constitution Act). However, to the authors' knowledge no court has yet made use of this rule in an antitrust case.

 
34. What evidence is admissible?

German rules on civil procedure allows only for the following evidence:

  • Witness evidence.

  • Expert evidence.

  • Evidence provided by records and documents.

  • Evidence provided by examination of a party.

  • Evidence taken by visual inspection (modern examples include websites or computer files).

Evidence from criminal proceedings is generally admissible in private antitrust actions. To protect victims, German rules on criminal procedure (which also apply to antitrust infringement proceedings) provide for a wide-ranging access of the victim's attorney to criminal files in order to prepare for compensation claims. The Federal Cartel Office has consistently tried to curtail these rights, leaving cartel victims with a lower level of protection than victims of any traffic accident.

Witness evidence is admissible in private antitrust actions. If a witness does not appear at court, the court can impose a coercive fine or coercive detention. If a witness fails to appear in several instances, the court may order the forcible production of the witness.

There is no cross-examination of witnesses. The examination is conducted by the judge. The attorneys and the parties of both sides are entitled to ask questions.

Expert evidence is admissible in private antitrust actions. The court can appoint an expert if it lacks own expertise on specific topics. The examination is conducted by the judge. The attorneys and the parties of both sides are entitled to ask questions. As claimants and defendants are likely to be assisted by party appointed experts, these questions may in some cases come close to a cross-examination.

 

Available defences

35. Is a "passing-on" defence available?

Under current legislation, the pass-on argument must be brought under the concept of adjustment of profit (Vorteilsausgleichung). In contrast to the Anti-trust Damages Directive, this concept is more open to value judgments. An adjustment of profits requires that the benefit had been caused by the same act. It may be denied if it unjustly favours a tortfeasor. The pass-on "defence" may be unavailable when the damage had been passed on to consumers, as they are unlikely to seek compensation.

To establish a pass-on defence under the concept of adjustment of profit, the defendant must prove:

  • That there is a price increase by the claimant in relation to his purchasers that is caused by the price increase by the defendant (the cartelist).

  • That application of the defence is reasonable with regard to the claimant/the harmed undertaking.

  • That the application of the defence does not unreasonably relieve the defendant.

To our knowledge, there is currently no judgment in which a pass-on defence has been successful.

 
36. Are any other defences available?

In principle, the claimant must prove its claim with regard to every defendant. If the parent company of a subsidiary that is alleged to have engaged in an infringement is not stated as an infringing party in a decision of the competition authority, the claimant must fully prove his claim with regard to the parent company. In this regard, the parent company could argue it did not have control of the subsidiary.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

Damages are available. The claimant must prove that he has suffered loss. There is a rebuttable presumption of loss (prima facie evidence) for antitrust breaches resulting from cartels established by the jurisprudence. The rebuttable presumption is applicable if the cartel is stated in a final and non-appealable decision of the European Commission or a national European Competition Authority. The amount of the damages is estimated by the judge on the basis of the facts the claimant demonstrated in the proceedings.

Courts do not take into account any public financial penalties imposed previously or participation in voluntary redress schemes when awarding damages in private actions.

According to general German civil law, compensatory damages are in principle available (section 249, GCC).

The law expressly provides that, in estimating the damages the judge can have regard to the profits achieved by the defendant as a result of the breach.

Exemplary damages are not available.

Interest

Interest is available on damages. Interest is awarded from the time the damage occurred and includes pre-trial interest. The default rate of interest per year is 5 percentage points above the base rate published by the German central bank. It is still disputed to what extent the damages claim constitutes a "claim for payment" and therefore commands application of the higher interest rate (8 or 9 percentage points above the base rate). German civil law expressly prohibits the award of compound interest (section 289, GCC).

 
38. How are damages quantified?

The judge can estimate the damages on the basis of the facts the claimant demonstrated in the proceedings.

There is currently no case law on specific economic analyses in respect of quantifying damages for antitrust breaches. Most expert opinions brought forward by claimants follow a comparison over time-approach. In infringement cases under the previous legislation that allowed for fines based on overcharges, German courts favoured a "market comparison approach" conceptually including both, comparisons over time and between comparable markets.

As there is currently no case law on the establishment of quantum, it remains to be seen if courts will prefer witnesses or economic experts. While there had been attempts to rely on witnesses in infringement cases, the authors' expect courts to instruct (and then to rely on) economic experts.

 
39. Are any other remedies available?

A claimant can also claim that the defendant has to cease an infringement.

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

It is possible to appeal the judgment of the relevant court.

The appeal can be made on the basis that the court:

  • Misapplied the law on the basis of the given facts.

  • Stated the relevant facts wrongly or incompletely.

  • Would have applied the law in another way on the basis of new facts that can be brought forward still in the appeal procedure (especially if the delay is not caused by negligence of the party bringing forward the new facts).

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

Germany is delayed in implementing the Anti-trust Damages Directive on schedule. A first official draft for implementation legislation had been published by the Federal Ministry for Economic Affairs and Energy. The draft still needed cabinet approval when this article was drafted. The legislative process in Parliament will begin in autumn 2016. Although some key elements of the Anti-trust Damages Directive can already be found in the current legislation, major reforms are necessary to bring about full implementation. This concerns in particular the introduction of disclosure mechanisms, which are almost unknown in German practice of civil procedure so far.

 

Online resources

Federal Ministry of Justice and Consumer Protection

W www.gesetze-im-internet.de

Description. Website of the Federal Ministry of Justice and Consumer Protection in co-operation with juris GmbH providing online access to almost the entire federal law currently in force. All texts in German. Some translations are available (for guidance only) at www.gesetze-im-internet.de/Teilliste_translations.html



Contributor profiles

Professor Dr Albrecht Bach, Partner

OPPENLÄNDER Rechtsanwälte

T +49 711 60187 150
F +49 711 60187 222
E bach@oppenlaender.de
W www.oppenlaender.de

Professional qualifications. Admitted to the German Bar

Areas of practice. EU competition law; antitrust law

Non-professional qualifications. Universities of Tübingen, 1991; University of Aix-en-Provence; teaching European Competition Law at Mannheim University

Recent transactions. Follow-on actions regarding cement, flat glass, TV advertising, elevators and escalators, gas insulated switchgear, rails and railroad equipment and automotive bearings.

Languages. English, French, German (native)

Professional associations/memberships. Board member of the Antitrust Lawyers' Association for Germany, Austria and Switzerland) (Studienvereinigung Kartellrecht); member of the ABA (Section Antitrust); member of the IBA.

Publications. Albrecht is a contributor to two leading commentaries on German antitrust law. He has published numerous articles on competition law.

Dr Christoph Wolf, Partner

OPPENLÄNDER Rechtsanwälte

T +49 711 60187 174
F +49 711 60187 222
E wolf@oppenlaender.de
W www.oppenlaender.de

Professional qualifications. Germany, EU

Areas of practice. EU competition law; antitrust law

Non-professional qualifications. University of Tübingen, 2008

Recent transactions

  • Representation of numerous public transport companies against members of the German rail track cartel in antitrust damages cases before German courts.
  • Representation of German TV broadcaster (RTL 2) against TV groups RTL and ProSiebenSat.1 regarding a claim based on a misuse of market dominance.
  • Follow-on action regarding automotive bearings.

Languages. German (native), English

Professional associations/memberships. Antitrust Lawyers' Association for Germany, Austria and Switzerland (Studienvereinigung Kartellrecht).

Publications. Contributor to a forthcoming commentary on antitrust law in the IT industry. Published several articles on competition law.


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