GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
sion in March 2025, following a sector inquiry in the refining and wholesale of fuels industry. Disgorgement of Benefits According to Section 34 of the ARC, the FCO may order the disgorgement of the economic benefit of the anti-competitive conduct and require the undertaking to pay a correspond - ing sum. This possibility exists irrespective of whether the FCO imposes an administrative fine or not. The FCO does not have to prove the existence of such benefits up to a certain amount. The 11th amendment to the ARC intro - duced a legal presumption of a benefit of at least 1% of the domestic sales of the products affected by the infringement. This presumption can only be rebutted if the affected company can prove that it did not generate any profit in this amount during the relevant time. This presump - tion does not concern the question of potential cartel damages to third parties. While there is a legal presumption for the existence of damage, the amount is entirely subject to the claimants’ burden of proof (see also 1.3 Private Enforce- ment and 6.1 Private Rights of Action ). Civil Law Implications Contractual agreements that violate Article 1 of the ARC are automatically null and void by law, even without any declaratory order by a compe - tition authority. 1.3 Private Enforcement Any person affected by cartel behaviour can claim damages arising from the infringement (Section 33a of the ARC). In addition, Section 33 of the ARC provides the option to claim for injunctive relief and rectification. These rights exist irrespective of whether a competition authority has previously investigated the case and issued a decision ( “follow-on claims” ) or not ( “standalone claims” ).
In the event of a cartel damage claim, the fac - tual findings of a binding decision by the FCO, the EC, or national competition authorities from other EU member states are binding and cannot be rebutted by the defendants (see 6.1 Private Rights of Action ). Consequently, the vast major - ity of claims brought before German courts are follow-on damage claims rather than standalone claims. The law on cartel damage actions is one of the most dynamic fields of antitrust law in Germany, both in case and statutory law. In 2017, new pro - visions were introduced into the ARC in light of the EU Damages Directive in order to overcome alleged hurdles to damage claims, including a rebuttable presumption that a cartel has caused damage (see 6.1 Private Rights of Action ). In early 2021, further amendments were made. In practice, however, most cases currently dealt with before the courts are not yet subject to these claimant-friendly provisions – given that these provisions only apply to damages that have occurred after 27 December 2016 (Section 187 (3) of the ACR). The law applicable to older damages is less claimant-friendly – specifically, with regard to: • the burden of proof of damages; and • the causal link between the cartel behaviour in question and the specific damage. Nevertheless, the courts have established a line of case law that increasingly eases the claim - ants’ burden of proof with regard to the exist - ence and quantification of damages. 1.4 “Cartel Conduct” Section 1 of the ARC prohibits all agreements between undertakings, decisions by associa - tions of undertakings, and concerted practices
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