Record number of judgments on level of damage in antitrust damages cases

In the area of antitrust damages, there were more judgments in 2023 than ever before which ruled on the level of damage caused. Some judgments were in favour of the claimants, while in others the defendants prevailed entirely or predominantly, despite assessments made by the trial judges.

Some of the legal disputes were decided on the basis of expert reports, while others were decided on the basis of a discretionary assessment conducted by the trial judge. There was a broad range of outcomes. Neither can it be said that discretionary assessments by trial judges led to a particularly high result (varying between 0.5% and 25%), nor did expert reports commissioned by the courts show any particular trend. For example, Mannheim Regional Court in its judgment of 23 June 2023 found after several years of expert proceedings in a sugar cartel case that there was an overcharge of just 2%. In other major antitrust damages cases involving drugstore products, trucks and railways, courts are currently taking evidence via expert reports, in some cases after Germany’s Federal Court of Justice referred the cases back to the lower courts. Only a few courts are aiming for a discretionary assessment.

The Federal Court of Justice recently clarified in its judgment of 29 November 2022 in the Schlecker case that courts may not refrain from taking evidence even if the claimant’s party expert report is incorrect, due to the principle of experience that states that cartels generally lead to increased prices. The Federal Court’s competition panel had already given similar instructions when courts rejected the defendants’ regression analyses without further examination.

In 2024, further pending appeal proceedings and upcoming initial appeal judgments on assessing damages will provide more guidance on the parameters to be observed. This should significantly reduce the duration of antitrust damages proceedings, which are sometimes felt to be overly long. However, it will only become apparent on a case-by-case basis whether the amounts awarded by the courts will ultimately meet claimants’ expectations of the sometimes large sums of damages they have claimed.

Even if the courts show an increasing tendency to assess the overcharge, this assessment must then be applied in the judgment to the underlying facts of the case. This requires putting forward a sufficient factual basis for the disputed purchase transactions. After all, in the absence of a loss-causing event, there is no loss. Alongside assessing the level of damage, some courts are therefore currently defining the basic requirements for the claimant’s factual submission on purchase processes. For example, Dusseldorf Higher Regional Court held in its judgment of 27 September 2023 (case number VI-U (Kart) 7/22) that a claimant must not only prove the purchase itself, but also the payment of the specific purchase price.

It remains to be seen to what extent the legislator will intervene in these principles established by the courts. The Federal Ministry for Economic Affairs and Climate Action held a public consultation on the 12th Amendment to the Act against Restraints of Competition from 6 November 2023 to 4 December 2023, which also included questions on antitrust damages law. Some of the questions raised related to the revision of procedural and jurisdictional rules for more effective conduct of proceedings, the involvement of the German Federal Cartel Office in proceedings and a legal presumption on the level of damage caused. In 2024, we will therefore see which suggestions from practice the legislators will take up.

This article is part of the Competition Outlook 2024. You can find all Competition Outlook articles here.