Germany: Cartel damages litigation – A lively debate on the effects of the individual cartels is imminent

The near future will bring momentum into ongoing litigation for cartel damages and lively debates about the effects of individual cartels and the extent to which the parties must provide facts in such proceedings, and probably also the first decisions in this regard. In 2018, the Federal Court of Justice (‘FCJ’) ruled on two important legal issues and set the tone:

• On the one hand, the FCJ decided that claims prior to July 2005 will also benefit from a suspension of the statute of limitations for the duration of the proceedings of a cartel authority.
• On the other hand, the FCJ decided shortly before the end of the year that plaintiffs could not rely on prima facie evidence with regard to the question of whether a cartel affected their deliveries and whether they had suffered any actual damages (see here). The FCJ acknowledges that in certain cases a positive presumption supports the existence of damage as well as an effect on the plaintiff if purchases are factually, temporally and spatially concerned by the infringement. However, the defendant's submissions must also be taken into account comprehensively.

In the future, courts will thus have to make much more comprehensive statements than they have done to date on the subject of antitrust violations, market conditions, the nature of the products and negotiations supposedly affected and the parties involved in the cartel. Due to the large number of pending proceedings, this will be an exciting development in 2019. Thus, it is important for both sides in cartel damages litigation to demonstrate in a manner that the court can agree with – and, in case of doubt, prove – why a claim by an individual plaintiff against a specific cartel actually exists or not. In addition, some of the limitation periods extended by the 9th amendment to the ARC expire at the end of 2019, and thus the window for filing a lawsuit with regard to some cartels might be closing.

Against this background, companies that might be victims of cartel offences and those that potentially might face cartel damage claims should seek further legal advice.