Private Antitrust Litigation - 2020 Contributing editor Francesca Richmond - Milbank
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Private Antitrust
Litigation
2020
Contributing editor
Francesca Richmond
© Law Business Research 2019Publisher
Tom Barnes
Private Antitrust
tom.barnes@lbresearch.com
Subscriptions
Claire Bagnall
Litigation
claire.bagnall@lbresearch.com
Senior business development managers
Adam Sargent
adam.sargent@gettingthedealthrough.com
Dan White
dan.white@gettingthedealthrough.com
Published by
2020
Law Business Research Ltd
87 Lancaster Road
London, W11 1QQ, UK Contributing editor
Tel: +44 20 3780 4147
Fax: +44 20 7229 6910
Francesca Richmond
Baker McKenzie LLP
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situation. Legal advice should always
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Lexology Getting The Deal Through is delighted to publish the seventeenth edition of Private
information is not intended to create, nor
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Throughout this edition, and following the unique Lexology Getting The Deal Through format,
June and July 2019. Be advised that this is the same key questions are answered by leading practitioners in each of the jurisdictions featured.
a developing area. Our coverage this year includes new chapters on Italy and Portugal a new global overview.
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First published 2003 legal advice should always be sought from experienced local advisers.
Seventeenth edition Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu-
ISBN 978-1-83862-145-2 tors to this volume, who were chosen for their recognised expertise. We also extend special
thanks to the contributing editor, Francesca Richmond of Baker McKenzie LLP, for her continued
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www.lexology.com/gtdt 1
© Law Business Research 2019Contents
Global Overview 3 Mexico89
Francesca Richmond Lucía Ojeda Cárdenas, José Enrique Espinosa Velasco,
Baker McKenzie LLP Felipe García Cuevas, Mariana Carrión Valencia,
Ernesto Álvarez Castillo and Priscila Monge Kincaid
China5 SAI Law & Economics
Ding Liang
DeHeng Law Offices Netherlands95
Erik Pijnacker Hordijk, Willem Heemskerk and Susanne Kingma
England & Wales 13 Pels Rijcken & Droogleever Fortuijn
Elizabeth Morony, Ben Jasper and Oliver Carroll
Clifford Chance LLP Norway101
Siri Teigum, Eivind Vesterkjær, Eivind Sæveraas and Heidi Jorkjend
France45 Advokatfirmaet Thommessen AS
Mélanie Thill-Tayara and Marion Provost
Dechert LLP Portugal108
Mário Marques Mendes and Pedro Vilarinho Pires
Germany53 Gómez-Acebo & Pombo (GA_P)
Alexander Rinne
Milbank LLP Spain115
Pedro Suárez Fernández, Antonio de Mariano Sánchez-Jáuregui
Greece61 and Javier Pérez Fernández
Dimitris Loukas and Kostas Manikas Ramón y Cajal Abogados
Potamitis Vekris Law Firm
Sweden122
Israel68 Stefan Perván Lindeborg, Fredrik Sjövall, Sarah Hoskins
David E Tadmor and Shai Bakal and Mårten Andersson
Tadmor Levy & Co Mannheimer Swartling
Italy76 Switzerland128
Eva Cruellas Sada and Salvatore Gaudiello Daniel Emch, Anna-Antonina Gottret and Stefanie Schuler
Gianni, Origoni, Grippo, Cappelli & Partners Kellerhals Carrard
Japan83 Turkey134
Hideto Ishida and Takeshi Suzuki M Fevzi Toksoy, Bahadır Balkı and Ertuğrul Can Canbolat
Anderson Mōri & Tomotsune ACTECON
United States 141
Paul Eckles, Karen Hoffman Lent, Matthew Martino, Tara Reinhart
and Jane Klinger
Skadden, Arps, Slate, Meagher & Flom LLP
2 Private Antitrust Litigation 2020
© Law Business Research 2019Germany
Alexander Rinne
Milbank LLP
LEGISLATION AND JURISDICTION Damages Directive, it can be expected that Germany will continue to
be an important forum for antitrust damages claims in Europe. In fact,
Development of antitrust litigation Brexit implications may further strengthen the importance of Germany
1 How would you summarise the development of private as a forum for damages claims resulting from competition law infringe-
antitrust litigation in your jurisdiction? ments covering more than one EU member state.
Private antitrust litigation has a long tradition in Germany and the Applicable legislation
enforcement of competition law through litigation continues to increase. 2 Are private antitrust actions mandated by statute? If not, on
There are broadly three different kinds of private antitrust litigation: what basis are they possible? Is standing to bring a claim
• damages claims based on infringements of antitrust law; limited to those directly affected or may indirect purchasers
• claims based on abusive behaviour of dominant companies; and bring claims?
• contractual claims being defended on competition law grounds.
Private antitrust actions are mandated by statute in Germany. Claims
Regarding claims challenging abusive behaviour by dominant compa- for injunctive relief are primarily based on section 33 of the ARC and
nies, there is a large and established body of case law spanning more damages claims are based on sections 33a to 33h of the ARC.
than 40 years including, for example, refusal to supply and access to In addition, claims for injunctive relief and for damages may under
essential facilities claims. certain circumstances be based on section 8 and section 9 respectively
Private antitrust litigation also has a long tradition in Germany in of the German Act against Unfair Competition. A further legal basis can
relation to competition law grounds being used to challenge or defend be found in general tort law, in other words, in section 823 et seq of the
the validity of contracts in civil law cases. German Civil Code (CC).
Damages actions by victims of anticompetitive agreements against The invalidity of agreements for competition law reasons is based
participants in the infringement were strengthened significantly as of on section 134 of the of the CC in connection with section 1 of the ARC.
1 July 2005 (broadening of the circle of potential claimants, alleviation In a judgment of 28 June 2011 (KZR 75/10), the German Federal
of the standards of proof, restriction of the passing-on defence, etc) Supreme Court held that also indirect purchasers can bring damage
and again as of 9 June 2017 when Directive 104/2014/EU (Damages claims against the members of a cartel (see question 15). Therefore, if
Directive) was implemented into German law (codification of prima facie manufacturers engage in a price-fixing cartel and charge excessive prices,
evidence and (rebuttable) presumptions that cartels lead to damages, it is not only their contractual partners (eg, wholesalers or retailers) who
extension of limitation periods, introduction of disclosure procedure, etc). might be able to claim for damages. Rather, anyone downstream to whom
Even before the Damages Directive had been implemented, Germany the whole or a part of the overcharge has been passed on, has standing
was a favourable forum for antitrust damages claims in Europe. Most of to bring a claim. If certain conditions are met, it is actually presumed that
the principles set out in the Damages Directive applied in Germany for (a part of) the damage was passed on to indirect purchasers (section 33c
many years, either as part of written laws (such as standing of indirect of the ARC). However, indirect purchasers bear the burden of proof as
purchasers, binding effect of decisions by competition authorities, joint to the amount of the damage suffered and as to the causal link between
and several liability, etc) or of the case law (such as availability of certain this damage and the infringement of antitrust law.
types of joint (de facto collective) actions, prima facie evidence that
cartels lead to damages, availability of the passing-on defence under 3 If based on statute, what is the relevant legislation and which
certain circumstances, etc). By implementing the Damages Directive, are the relevant courts and tribunals?
the German legislator has further strengthened private damages
actions. Inter alia, prima facie evidence that competition law infringe- For the relevant legislation, see question 2. In terms of jurisdiction,
ments lead to damages has been explicitly implemented in the German there are specific courts with specialised chambers dealing with anti-
Act against Restraints of Competition (ARC) (see question 15). Further, it trust cases.
is confirmed that limitation periods do not start before a competition law According to section 87(1) of the ARC, regional courts have exclu-
infringement is terminated and both, limitation periods and suspension sive jurisdiction over civil actions based on national competition law or
periods, have been extended significantly (see question 17). In addition, articles 101 and 102 of the Treaty on the Functioning of the European
a disclosure procedure has been established. However, whether this Union, regardless of the amount in dispute. The federal states in
will actually facilitate or rather delay damages claims remains to be Germany have been granted the authority to designate one or more
seen (see question 9). specific regional courts that decide exclusively on antitrust matters
Taking into account the longstanding experience of the courts with within the relevant federal state (section 89 of the ARC). Almost all of
antitrust damages claims and the recent changes as a result of the the federal states have exercised this authority. Within these specific
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© Law Business Research 2019Germany Milbank LLP
regional courts, specialised chambers have been established to deal the competition law infringement (scene of the behaviour), as well as the
exclusively with antitrust matters. However, as an exception to the place at which interference with the object of legal protection occurred
general rule, according to section 95(2) number 1 of the German Code (place of interference). In the event of an alleged cartel activity, the
on Court Constitution, cartel damages actions are no longer heard by scene of the behaviour and the place of interference are often different.
these specialised chambers but by the common civil chambers. The scene of the behaviour is the place where the cartel activities
The parties can appeal to the higher regional courts. Again, the were initiated and, or practised. The place of interference would be the
majority of the federal states in Germany have determined a single place where competition was restricted; in particular, where a potential
court of appeal that has exclusive jurisdiction over antitrust matters. In claimant suffered loss as a consequence of the cartel activity (regularly
addition, these courts of appeal have established specialised antitrust the operational location or registered seat of the claimant since that is
divisions. Both the regional courts and the higher regional courts are the place where the overcharge was paid).
trial courts that hear evidence on facts in addition to legal arguments. If one defendant of a group of joint and severally liable defendants
The decisions of the higher regional courts can be appealed on can be sued in Germany, all of the defendants can be sued before the
points of law before the German Federal Supreme Court, which also has German courts if there is a sufficiently close relationship between the
a specialist antitrust division. Such an appeal is possible if the court of claims against all of the defendants. In cartel cases, a claim against
appeal grants leave to do so or if, on application by one of the parties, all participants may, therefore, be brought against all defendants if
the appeal is admitted by the German Federal Supreme Court. one defendant can be sued in Germany (the ‘anchor defendant’). In a
pending damages action regarding the Hydrogen Peroxide cartel, only
PRIVATE ACTIONS one of the six defendants was based in Germany and served as the
anchor defendant. Since the anchor defendant reached a settlement
Availability with the claimant (the professional claimant company Cartels Damages
4 In what types of antitrust matters are private actions Claims SA), none of the remaining defendants is based in Germany. The
available? Is a finding of infringement by a competition European Court of Justice (ECJ) found that jurisdiction remains with the
authority required to initiate a private antitrust action in your German court unless the claimant and the defendant who reached the
jurisdiction? What is the effect of a finding of infringement by settlement colluded to artificially establish jurisdiction (decision dated
a competition authority on national courts? 21 May 2015, C-352/13).
In the event that German procedural law applies, German courts
Private actions (injunctive relief or damages) are available in any type have, in particular, jurisdiction for cartel damages actions against any
of antitrust matter. Claims can be made against members of cartels as cartel member if the cartel activity occurred in Germany. According to
well as against companies that abuse a dominant position or any party section 32 of the German Code of Civil Procedure (CCP), jurisdiction in
to a potentially anticompetitive agreement. matters of tort (here, illegal cartel activity) is connected to the place
In addition, it is possible to object to a merger if, for example, where the harmful event occurred. In this regard, the same principles
competitors or other affected market participants take the position apply as under Regulation (EU) No. 1215/2012. Other important provi-
that the respective merger should have been prohibited by the German sions are sections 13, 17 and 21 of the CCP, which state that the court
Federal Cartel Office (FCO). Such claims fall within the exclusive juris- at the place where the defendant is domiciled or where a defendant
diction of the Higher Regional Court of Düsseldorf. has its seat or a branch is the locally competent court. In cases where
A finding of infringement by a competition authority is not required a claim against several cartel participants is brought at the court of
to initiate a private antitrust action. However, without a decision of a domicile of one participant, this court can be declared to have jurisdic-
competition authority the full burden of proof that an infringement has tion by the competent higher regional court according to section 36(1)
occurred rests on the claimant. If a competition authority investigates No. 3 of the CCP.
certain conduct it is, therefore, advisable to await the finding of the
authority. According to section 33b ARC, national courts are bound by Restrictions
a finding that an infringement has occurred, once such a finding forms 6 Can private actions be brought against both corporations and
part of a final decision by the FCO, the European Commission or any individuals, including those from other jurisdictions?
competition authority of another EU member state.
Yes. Provided that German courts have jurisdiction in accordance with
Required nexus the conditions as set out in question 5, private actions can be brought
5 What nexus with the jurisdiction is required to found a private against both corporations and individuals (including those from other
action? To what extent can the parties influence in which jurisdictions).
jurisdiction a claim will be heard?
PRIVATE ACTION PROCEDURE
The international competence of German courts in antitrust matters
is governed either by Council Regulation (EU) No. 1215/2012 on juris- Third-party funding
diction and the recognition and enforcement of judgments in civil and 7 May litigation be funded by third parties? Are contingency
commercial matters or by the Lugano Convention 2007 on jurisdiction fees available?
and the enforcement of judgments in civil and commercial matters or by
German procedural law. In Germany, litigation may be funded by third parties. Most if not all of
According to Regulation (EU) No. 1215/2012, German courts have, the major litigation financing firms are active in Germany. They fund
for example, jurisdiction in antitrust matters if the defendant is domi- civil litigation costs and bear the financial risk if the claim has a suffi-
ciled in Germany (article 2(1)) or in cases of cartel damages actions cient chance of success. In the event of a successful outcome of the
where the harmful event occurred or may have occurred in Germany proceeding, the litigation financing firm will usually receive a certain
(article 7(2)). A place is considered to be the place where the harmful percentage of the proceeds recovered by the claimant.
event occurred if only one of the essential facts constituting the offence In the event of a cartel damages claim, there are further financing
occurred there. This is both the place where the defendant committed possibilities. Several firms and investment funds specialise in acquiring
54 Private Antitrust Litigation 2020
© Law Business Research 2019Milbank LLP Germany
and pursuing cartel damages claims at their own risk and cost. The possession of leniency applicants other than leniency statements are
injured party will generally receive a certain amount of the proceeds not exempted.
recovered by these firms; sometimes, litigation funds even pay a certain Various procedural aspects concerning the application of Section
amount upfront when acquiring the claim. It has to be mentioned that 33g of the ARC are further specified by section 89b to 89e of the ARC.
German courts only accept claims by such firms or investment funds For example, section 89b(1) of the ARC refers to section 142 of the CCP.
if they are sufficiently funded to bear procedural cost in case of defeat According to section 142 of the CCP, the judge can order the defendant or
(see question 19). a third party to produce a certain specified document that it possesses
In addition, contingency fees are, at least to a certain extent, that is relevant to substantiate the claim, provided that the document
available in Germany. In 2008, the German legislature lifted the total can be specified by the claimant and the claimant or the defendant has
ban on contingency fees to implement a prior decision of the German referred to the document during the proceedings. While section 142 of
Federal Constitutional Court. The German Federal Constitutional Court the CCP was previously only available once proceedings had been initi-
had held on 12 December 2006 that the prohibition of contingency fees ated, it is now also available for pretrial disclosure requests in line with
was unconstitutional insofar as it did not contain any exceptions to section 33g of the ARC.
the general rule. Therefore, contingency fees are now permitted if the In addition to requests against third parties, the claimant can
claimant would be prevented from asserting his or her rights without request access to the records of the FCO or other relevant competi-
contingency fees owing to his or her economic situation. In addition, tion authorities according to section 89c of the ARC. Section 89c of the
the agreement on contingency fees has to meet certain formal require- ARC is a newly introduced lex-specialis of the general right to inspec-
ments in accordance with section 4(2) and (3) of the German act on the tion of files according to section 406(e) of the German Code of Criminal
remuneration of lawyers. The agreement must, for example, state for Procedure on which such requests were based before section 89b of the
which compensation (estimated statutory fees or if applicable contrac- ARC entered into force. Leniency statements and acknowledgements in
tual fees that are not contingency fees) the lawyer would have agreed to connection with settlement discussions with competition authorities are
take the case in the absence of a contingency fee and lay out the condi- exempted as well. It is important to note that requests for information
tions that entitle the lawyer to claim compensation. against competition authorities are secondary to requests against other
parties. Pursuant to section 89c(1), sentence 1, No. 1 of the ARC access
Jury trials to the records of competition authorities shall only be granted if the
8 Are jury trials available? requested information cannot be obtained with reasonable effort from
another party.
No. There are no jury trials available in Germany. In first instance, Section 89d(4) of the ARC explicitly stipulates that the rules
damages cases are exclusively heard in one of the respective regional contained in section 33g of the ARC and sections 89b et seq of the
courts’ civil chambers consisting of (usually) three professional judges. ARC shall conclusively govern requests for access to information. In
All other cases may either be heard in a civil chamber or a chamber of this regard, section 89d(4) of the ARC states that general civil proce-
commerce. If the cartel chamber responsible for the case is a chamber dural rules such as section 421 et seq of the CCP (right to request that
of commerce, two of the judges will be honorary lay judges who are the defendant should produce individual specified documents in court
businessmen. For more details on courts, see questions 3 and 18. proceedings) only apply if and to the extent the claimant has a right to
access to information pursuant to section 33g of the ARC.
Discovery procedures Whether the extended rules on access to information will actu-
9 What pretrial discovery procedures are available? ally facilitate, or rather hamper damages claims, remains to be seen.
Enforcing (pretrial) disclosure will likely result in significant delays and
Although German law did traditionally not provide for discovery proceed- may therefore not always be attractive. On the other hand, defendants
ings equivalent to those in common-law jurisdictions, the Damages trying to delay cases by claiming access to information in connection with
Directive has led to the introduction of a limited disclosure procedure in an alleged pass-on is may become a regular pattern. This is especially
connection with antitrust damages claims. Section 33g of the ARC intro- true as section 89b(3) and (4) of the ARC provide for the possibility of a
duces a right to access to information required to seek antitrust damages. stay of proceedings and an interlocutory judgment regarding access to
To claim access to information from either the potential defendant or information.
another third party, a claimant has to demonstrate probable cause that
he or she has a right to seek damages and indicate the information as Admissible evidence
specific as possible. In return, a defendant has the right to access to infor- 10 What evidence is admissible?
mation from either the claimant or a third party, if an action of damages is
already pending (ie, not pretrial) and if the defendant describes the infor- The claimant may base its claim on any available evidence, including:
mation as specific as possible and explains why they are needed (usually • documentary evidence (contracts, website printouts, emails,
to quantify a pass-on by the claimant). In general, the interests of the letters, attendance notes, telephone notes, etc);
party claiming access to information and the interest of the party that is in • evidence by witness;
the (alleged) possession of such information need to be balanced against • expert evidence;
each other. In this regard, the following aspects have to be considered: • evidence by interrogation of the parties; or
• relevance and value of information; • evidence by inspection.
• the extent to which available information has been exhausted;
• effort and cost to provide requested information; Of the above points, the first three are by far the most relevant in anti-
• confidential nature of information; and trust proceedings.
• effectiveness of public competition law enforcement. In addition, when a decision of the FCO, the European Commission
or any other European competition authority has become final, the
Access to leniency statements and acknowledgements in connection claimant can rely on the findings of the relevant competition authority
with settlement discussions with competition authorities are explicitly instead of providing evidence for the competition law infringement
exempted from the access to information. However, information in the (section 33b of the ARC and article 16(1) of Regulation (EC) No. 1/2003).
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© Law Business Research 2019Germany Milbank LLP
Legal privilege protection to compensate for damages resulting from supplies of other partici-
11 What evidence is protected by legal privilege? pants in the infringement only arises if full compensation cannot not
be obtained from the other participants in the infringement. In addition,
Generally, the concept of legal privilege does not exist in Germany. third parties that want to commence an action for damages against the
In German civil proceedings, the concept of legal privilege is of less leniency applicant will not be granted access to the leniency application
relevance than in a number of other jurisdictions, because there are no (see question 9).
discovery proceedings equivalent to those in common-law jurisdictions.
Even the newly introduced limited disclosure procedure pursuant to Stay of proceedings
section 33g of the ARC does not contain rules on legal privilege. In 14 In which circumstances can a defendant petition the court for
general, both (potential) claimants and defendants can request access a stay of proceedings in a private antitrust action?
to information in the possession of others. Restrictions only apply to
leniency statements and acknowledgements in connection with settle- A civil court can order a stay of proceedings pursuant to section 148 of
ment discussions with competition authorities (see question 9). the CCP if its findings are dependent on circumstances that are already
The same applies with regard to access to the records of a competi- the subject of either another dispute before a court or an investigation
tion authority. Communications between the defendant and its in-house by an authority. As a result, the courts can stay a follow-on damages
counsel or external lawyers can be found in the FCO’s file because action if the foregoing infringement decision of the authority is appealed
the concept of legal privilege does not exist in the event that the FCO against by the defendants (ie, if the decision is not final). However, in
conducts cartel investigations and seizes documents. The FCO is enti- order not to undermine the private enforcement of antitrust cases, there
tled to seize all documents in the possession of the in-house counsel is a strong tendency among courts not to stay proceedings despite
unless they concern ‘defence correspondence’. Defence correspondence pending appeals against the underlying infringement decision. In addi-
is correspondence that is prepared in awareness of, and relates directly tion, a stay of proceedings is possible in connection with proceedings
to, the actual defence in quasi-criminal cartel investigations or other regarding access to information (see question 9).
antitrust proceedings that can lead to the imposition of a fine.
Documents in the possession of the defendant’s external lawyer are Standard of proof
protected by attorney privilege and cannot be seized. This is confirmed 15 What is the applicable standard of proof for claimants? Is
by section 33g(6) of the ARC. passing on a matter for the claimant or defendant to prove?
Trade secrets are generally not privileged under German civil What is the applicable standard of proof?
procedural law. However, confidentiality aspects have to be consid-
ered in relation with a request for disclosure of information pursuant Standard of proof
to section 33g of the ARC. If access to the information is granted, the As a general rule, the court has to be convinced that the facts as
court has to ensure that trade or business secrets will be protected; for presented by the claimant are true. No absolute certainty is necessary
example, through redaction of the relevant documents. in this regard. However, it is required that the judge does not have any
reasonable doubts concerning the truth of the facts.
Criminal conviction In relation to the amount of loss incurred by the claimant in a
12 Are private actions available where there has been a criminal damages case, the standard of proof is reduced under German law,
conviction in respect of the same matter? as follows:
• pursuant to section 33a(2) of the ARC, a (rebuttal) presumption
Private actions are available regardless of whether there has been a applies according to which cartels result in damages; and
prosecution under competition or criminal law. There is no difference • the court can estimate the amount of damages suffered by the
between private actions as to whether there has been a criminal convic- claimant according to section 33a(3) of the ARC and section 287
tion or not. of the CCP.
Utilising of criminal evidence Claimants are not required to exactly calculate the damages the suffered
13 Can the evidence or findings in criminal proceedings be as a result of the cartel. It is only necessary that the claimant provides a
relied on by plaintiffs in parallel private actions? Are reliable factual basis for such an estimate. In cartel cases, the court can,
leniency applicants protected from follow-on litigation? Do as an additional option, base its estimate of the amount of loss incurred
the competition authorities routinely disclose documents on the profits earned by the defendants through illegal cartel activities
obtained in their investigations to private claimants? (section 33a(3) of the ARC).
Where the claimant asserts lost profits, the burden of proof is
Pursuant to section 33b of the ARC, the claimant can rely on the findings further alleviated by section 252 of the CC. According to section 252 of
of competition authorities. the CC, lost profits are, for example, those that the claimant would prob-
In the case of a fining decision of the FCO or the European ably have earned in the normal course of events.
Commission, the claimant can introduce the decision as documentary
evidence in civil proceedings. If the decision is final, the court is bound Burden of proof
by the findings of the decision (section 33b of the ARC). In addition, the In principle, the claimant has to demonstrate and provide evidence for
claimant has the right to access the respective authority’s records in the facts forming the basis of the competition law infringement as well
accordance with section 89c of the ARC (see question 9 in this regard). as of the loss incurred. However, the claimant may benefit from a shift
Leniency applicants are only to a limited degree protected from in the burden of proof or presumptions in certain situations. In cartel
follow-on litigation. In general, leniency applicants can be sued for cases, a (rebuttal) presumption applies according to which cartels
damages. However, there is a modification of the concept of joint and result in damages (section 33a(2) of the ARC). In discrimination cases
several liability (for details of the general concept see question 33). against dominant companies, the claimant only has to prove that there
According to section 33e of the ARC, leniency applicants only have to has been a different treatment. It is then on the defendant to demon-
compensate for damages caused by their own supplies. An obligation strate and to provide evidence that the discrimination of the claimant
56 Private Antitrust Litigation 2020
© Law Business Research 2019Milbank LLP Germany
is justified. A further presumption is provided for in section 20(5) of the several general provisions that aim to accelerate proceedings (eg, rules
ARC, according to which it is presumed under certain conditions that on time limits and estoppel).
selling below cost is illegal. In addition, every party has the possibility to accelerate the
proceedings by its own conduct, such as by not requesting an extension
Quantitative rules of time limits for briefs, etc.
There are no quantitative rules of thumb or rebuttable presumptions of
a quantitative nature in German competition law. Limitation periods
17 What are the relevant limitation periods?
Passing-on defence
The German Federal Court of Justice, in a landmark ruling handed down The question of whether a claim is time-barred or not is governed by
on 28 June 2011 (KZR 75/10), has held that members of a cartel are substantive law. As of 9 June 2017, there have been changes to the
able to defend themselves against a claim for damages by raising the statute of limitation. The standard limitation period for cartel damages
defence that the relevant applicants have passed on the damage caused claims has been extended from three years to five years (section 33h(1)
by higher prices to a downstream market (the ‘passing-on’ defence). of the ARC). The time limit starts running with the end of the year in which
However, the passing-on defence is only available under the principle of the claim arose and the claimant became aware of the circumstances
‘adjustment of damages by benefits received’. As a result, the burden of giving rise to the claim and the identity of the (potential) defendant or
proof is on the defendant that the direct purchaser passed the damage should have become aware without gross negligence. In addition, there
down to the next level of costumers. That means the defendant has to is an absolute limitation period for antitrust damages claims of 10 years
prove, first, that the overcharge has been passed on and, second, the from the date on which the claim arose. While it has been disputed in the
extent to which the overcharge has been passed on. As of 9 June 2017, past whether the limitation periods start to run from the time when the
the German legislature has codified these principles in section 33c of infringement was committed or only from the time when the infringe-
the ARC. As a result of the introduction of section 33c of the ARC it ment has come to an end, section 33h(2) and (3) of the ARC now clarify
is open, whether the passing-on defence is not available if it leads to that the limitation periods do not start to run before the infringement
an unjust benefit for the defendant. This can particularly be the case has come to an end. However, 30 years after the date on which the act
if the indirect purchasers consist of a large fragmented group, which causing the injury was committed, all damages claims are time-barred.
makes it unlikely that the indirect purchasers will seek damages. While The limitation is suspended for the time of investigations of the
the principle of an ‘adjustment of damages by benefits received’ is only FCO, the European Commission or the competition authority of another
available if the adjustment (ie, the pass-on defence) does not result in EU member state or for the time of court proceedings in connection
an unjust benefit of the cartelist, the newly introduced section 33c of the with a request for access to information of the claimant in accordance
ARC does not contain any wording to that effect. As a result, it may well with section 33g of the ARC (section 33h (6) of the ARC). The suspen-
be that based on section 33c of the ARC, German courts will acknowl- sion period has been extended as well. The claims will expire no earlier
edge the pass-on defence, even if this leads to a situation under which than one year after the final decision of the respective authority or
the defendant who, without doubt, caused a damage will not be held court. Against the background that it is disputed whether the preceding
liable for the overcharge. However, even if a passing-on can be demon- provision applies to claims that arose prior to the entry into force of
strated by the defendant, the claimant can claim lost profits as a result that provision, the German legislature decided to include transitional
of volume effects; that is, if the higher resale price (including the over- provisions specifically on limitation (section 186 (3), sentences 2 and 3
charge) results in reduced sales by the direct purchaser. of the ARC).
In cases where an indirect purchaser wants to benefit from the
passing-on of the overcharge by the direct purchaser and aims to seek Appeals
damages, the indirect purchaser can benefit from a shift in the burden of 18 What appeals are available? Is appeal available on the facts
proof pursuant to section 33c(2) of the ARC. A pass-on is presumed if the or on the law?
defendant infringed competition law, the competition law infringement
led to higher prices for the direct purchaser and the indirect purchaser The parties may appeal a decision of a regional court on the facts and
purchased the cartelised products. It is then for the defendant to prove on the law to the competent higher regional court. The decisions of
that a passing-on has not occurred. the higher regional courts may be appealed on points of law before
the German Federal Supreme Court. Such an appeal is possible if the
Time frame court of appeal grants leave to do so or if the appeal is, upon application
16 What is the typical timetable for collective and single party of either party, admitted by the German Federal Supreme Court (see
proceedings? Is it possible to accelerate proceedings? question 3).
There is no standard timetable for court proceedings. Generally, the COLLECTIVE ACTIONS
duration of court proceedings is relatively short in comparison with
other European jurisdictions. According to information from the German Availability
Federal Ministry of Justice and the German Federal Supreme Court, civil 19 Are collective proceedings available in respect of antitrust
court proceedings at first and second instance on average last nine to claims?
10 months each and, in the event of an appeal on questions of law to
the German Federal Supreme Court, a further 12 to 24 months. This German civil procedure law does not formally provide for collective
appears, however, a bit too optimistic if compared with the actual dura- proceedings in competition law matters.
tion of proceedings. It is more realistic to expect 12 to 24 months for However, despite the lack of collective proceedings, there is a
each of the first and second instance too. This results in an overall dura- possibility of submitting bundled damages claims through third parties.
tion of usually four to six years if the case is heard through all instances. This possibility is of particular interest for end users and smaller
The parties in German civil proceedings have no explicit rights companies that otherwise do not have the financial resources to assert
to accelerate proceedings. However, German procedural law contains their legal rights.
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In relation to a cement cartel in which the FCO imposed fines of National collective proceedings
approximately €660 million in April 2003, the German Federal Supreme 25 If the country is divided into multiple jurisdictions, is a
Court confirmed in 2009 (judgment dated 7 April 2009, KZR 42/08) the national collective proceeding possible? Can private actions
Regional Court of Düsseldorf’s decision of 21 February 2007 admit- be brought simultaneously in respect of the same matter in
ting a damages claim that was submitted by CDC. CDC has bought the more than one jurisdiction?
claims of various companies, relying on the argument that the price
for cement as purchased from the members of the cement cartel was Germany is not divided into multiple jurisdictions. Once the claimant
anticompetitive and therefore too high. As there is no legal basis for has brought a legal action before a German court, it cannot bring a
class-action lawsuits in relation to private antitrust claims in Germany, claim in the same matter before another German court (section 261(1)
the cartel victims assigned their individual claims to CDC for payment of of the CCP).
€100 and a certain amount of the proceeds that will be obtained through
the court proceedings. CDC pursues the respective claims on its own Collective-proceeding bar
behalf. However, with first instance judgment of 17 December 2013, the 26 Has a plaintiffs’ collective-proceeding bar developed?
Regional Court of Düsseldorf has dismissed CDC’s damages claim in
its entirety for a number of reasons. Most notably, the court decided See question 19.
that the cession of the claims was contrary to public policy according
to section 138(1) CC as CDC would not have been able to cover all the REMEDIES AND LIABILITY
expenses of the defendants in case of a complete loss of the case. In
appellate proceedings, the Higher Regional Court of Düsseldorf on 18 Compensation
February 2015 upheld this decision and rejected CDC’s appeal in its 27 What forms of compensation are available and on what basis
entirety. Another attempt by CDC in relation with the cement cartel, are they allowed?
after sufficient funding was obtained and cession of the claims was
re-conducted, again resulted in a rejection of the entire claim. With first As a starting point, the amount of damages follows a purely compen-
instance judgment of 24 January 2017, the Regional Court of Mannheim satory principle. German damages law does not provide for punitive
found that the claims were by then time-barred. This decision deals damages such as triple damages (see question 29).
with the question whether the provision on the suspension of limitation The calculation of damages suffered by the claimant is primarily
periods that applied prior to 9 June 2017 also applied to claims that based on section 249 of the CC (principle of natural restitution).
arose, prior to the entry into force of that provision (for more details on According to this provision, damages are calculated on the basis of
limitation, see question 17). As CDC appealed this judgment it remains the difference between the financial position of the claimant after
to be seen whether CDC will in the end be successful in relation to the the infringement occurred and the hypothetical financial position the
cement cartel. However, CDC, in tandem, pursues and prepares claims claimant would have been in if the competition law infringement had not
in connection with other cartels such as the German sugar cartel and occurred. The financial status of the affected party has to be considered
the European truck cartel. as a whole; therefore, not only its losses in income and wasted invest-
ment have to be taken into account, but also any benefits received as a
Applicable legislation consequence of the anticompetitive behaviour. Losses incurred include,
20 Are collective proceedings mandated by legislation? in particular, lost profits (section 252 of the CC).
However, the principle of natural restitution not only leads to pecu-
No. niary compensation but may, particularly in cases of abusive refusals
to supply, lead to the defendant being ordered by the court to contract
21 If collective proceedings are allowed, is there a certification with the claimant and supply him or her with the requested goods or
process? What is the test? services at non-discriminatory terms.
Not applicable. Other remedies
28 What other forms of remedy are available? What must a
Certification process claimant prove to obtain an interim remedy?
22 Have courts certified collective proceedings in antitrust
matters? Claimants can request that the defendant should refrain from an anti-
trust violation according to section 33(1) of the ARC. This means that the
See question 19. claimant can either request that the defendant ends a certain behaviour
or that the defendant has to perform a certain activity, such as supply
Opting in/out the claimant in the future. The request is available even for imminent
23 Can plaintiffs opt out or opt in? antitrust violations (section 33(2) of the ARC). In the event of urgency,
these claims can exceptionally be enforced by way of interim measures.
Not applicable. German procedural law provides for different interim measures
pursuant to sections 935 and 940 of the CCP. In the event of an imme-
Judicial authorisation diate risk that the financial situation of the defendant will deteriorate,
24 Do collective settlements require judicial authorisation? the claimant can request a court to seize assets of the defendant.
Furthermore, courts can issue interim measures ordering the defendant
German procedural law does not provide for class settlements. However, to perform a certain action, such as supplying the claimant with certain
if the parties agree on a settlement no further judicial authorisation is goods, if the claimant would otherwise lose important customers. The
required. For procedural reasons, however, it can be helpful to have a standard of proof is lower than for the principal claim on the merits. An
settlement recorded in court. applicant for interim relief must provide prima facie evidence that he
or she has a claim and that the realisation of such claim is impossible
58 Private Antitrust Litigation 2020
© Law Business Research 2019Milbank LLP Germany
or severely jeopardised without the interim remedy (urgency). As a this principle in section 33d(2) of the ARC. It is explicitly stated that the
general rule, an interim remedy shall not result in the fulfilment of the general principles of sections 421 et seq of the CC apply to the adjust-
final remedy. ments among the jointly and severally liable cartel members.
Special provisions apply to small and medium-sized enterprises
Punitive damages with small market shares, limited financial resources and minor partici-
29 Are punitive or exemplary damages available? pation in the cartel (section 33d(3) of the ARC), leniency applicants
(section 33e of the ARC; for more details on the protection of leniency
Punitive or exemplary damages are not available. applicants see question 13) and cartel members who participated in a
settlement (section 33f of the ARC; see also question 34). In general,
Interest small and medium-sized enterprises as well as leniency applicants
30 Is there provision for interest on damages awards and from only have to compensate damages of their own (direct and indirect)
when does it accrue? customers and suppliers. Cartel members who participated in a settle-
ment are freed from liability against the party of the settlement. In all
To avoid a situation where compensation of the loss incurred is partially three cases, further liability is only possible if full compensation could
devalued, the party in breach of competition law is obliged to pay not be obtained from the other cartel participants. This additional
interest on pecuniary damages (section 33a(4) of the ARC). Interest is liability can be excluded in settlements. Adjustments among the jointly
calculated from the date the loss accrued. and severally liable cartel members are accordingly limited.
The obligation to pay interest is particularly important in relation to
follow-on actions when the plaintiff waits until the competition authority Contribution and indemnity
renders a decision. The general interest rate is 5 per cent above the 34 Is there a possibility for contribution and indemnity among
European Central Bank’s base rate (section 33a(4) of the ARC and defendants? How must such claims be asserted?
section 288 (1)of the CC). Owing to changes in law, interest damages
that occurred prior to 1 July 2005 follow different rules, and are gener- The possibility of a contribution claim exists under German law. If the
ally to be set at 4 per cent or 5 per cent (ie, not base-rate linked). damage is caused by several defendants, they are jointly and sever-
ally liable and each defendant can sue another cartel member for
Consideration of fines internal recourse. Such claims for internal contribution are subsequent
31 Are the fines imposed by competition authorities taken into to the main action. However, in cases where claimants seek damages
account when setting damages? only from selected participants in an infringement, it is usual practice
that the defendants issue third-party notices on the other participants
Fines imposed by the competition authorities are not taken into account in the infringement since such third-party notices have the effect
when settling damages. Even in the event of a significant fine, the that the factual findings of the court dealing with the main action
claimant is entitled to seek full compensation. On the other hand, a high will be binding on the courts dealing with the subsequent actions for
fine does not indicate a liability for higher damages. internal contribution.
Settlements are, generally, limited to damages resulting from
Legal costs supplies of the parties to the settlement and do not cover damage
32 Who bears the legal costs? Can legal costs be recovered, and resulting from supplies of other participants in an infringement.
if so, on what basis? According to section 33f(2) of the ARC, claims for internal contribution
are not possible in settlement cases as regards the settled portion of
As a general rule, the legal costs are borne by the losing party. If there the claim.
is no full loss or win, the court allocates the legal costs between the
parties on a pro rata basis according to the outcome of the case. The Passing on
legal costs include the costs of the court proceedings as well as the 35 Is the ‘passing on’ defence allowed?
attorneys’ fees. However, attorneys’ fees are calculated on the basis of
statutory fees, which are usually well below the fees actually incurred in See question 15.
complex antitrust damages cases. Put differently, the cost risk for claim-
ants is relatively low and it can be determined upfront with certainty. Other defences
According to section 89a of the ARC, in antitrust cases, the value of the 36 Do any other defences exist that permit companies or
matter may be adjusted if certain conditions are met. individuals to defend themselves against competition law
liability?
Joint and several liability
33 Is liability imposed on a joint and several basis? There is no special defence that would permit companies or individuals
to defend themselves against competition law liability.
Joint and several liability exists if two or more individuals or legal
persons have caused the damage. As a result, participants in a cartel Alternative dispute resolution
are jointly and severally liable. Each defendant is then liable for the 37 Is alternative dispute resolution available?
totality of the damage incurred by the claimant, but the claimant is only
entitled to claim the totality of the damage once (section 33d(1) of the In principle, arbitration proceedings are available under German law.
ARC and sections 830, 840(1) and 421 of the CC). However, such proceedings are only admissible if an arbitration clause
With a judgment of 18 November 2014, the German Federal Court in relation to antitrust damages has been validly agreed between
of Justice held that the necessary adjustments among the jointly and the parties.
severally liable cartel members themselves will take place according to
section 254(1) of the CC; that is, according to the extent of their respec-
tive participation in the cartel. The German legislature has codified
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© Law Business Research 2019Germany Milbank LLP
UPDATE AND TRENDS
Hot topics
38 Are there any emerging trends or hot topics in the law of
private antitrust litigation in your country?
Antitrust damages litigation will continue to be on the rise in Germany,
probably further fuelled by the UK leaving the European Union, which
will cause claimants to bring certain cases in Germany instead of the Alexander Rinne
arinne@milbank.com
UK. However, on some topics, courts start to set boundaries on certain
typical areas of dispute in antitrust damages cases.
In particular, the Federal Court of Justice held in a decision of 11 Maximilianstraße 15
December 2018 (KZR 26/17) that in cases of quota and customer alloca- 80539 Munich
tion cartels a prima facie evidence does not automatically apply to the Germany
effect that (i) all customers generally covered by the cartel were actu- Tel: +49 89 25 559 3686
ally negatively affected by the cartel and (ii) suffered damage. However, Fax: +49 89 25 559 3700
www.milbank.com
the court conceded that a factual presumption may well be justified
that quota and customer allocation cartels result in a damage with all
affected customers, which is also consistent with section 33a(2) of the
ARC. It remains to be seen whether the decision will have a relevant
effect in practice. In fact, courts of lower instance seem to decide the
same way as previously, simply changing the term ‘prima facie evidence’
against ‘factual presumption’.
In addition, with regard to indirect purchases courts seem to have
become stricter in acknowledging that damages of the direct purchaser
were passed on to indirect purchasers, in particular in complex
commercial situations (eg, leasing scenarios in connection with the
Trucks cartel). It will be on the claimants (that are indirect purchasers)
to develop robust theories and models to demonstrate that damages
were passed on in full or in part by the direct purchasers.
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