GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
four months. The Higher Regional Court of Düs - seldorf concluded that this duration, despite the complexity of the case, infringed the defendants’ right to a fair trial under Article 6 of the ECHR. In this case, the FCO had remained inactive for more than two years. Appeals proceedings to the Higher Regional Court of Düsseldorf can also be very time con - suming, especially if the parties challenge the FCO’s decision on the facts. The Higher Regional Court will then re-assess the evidence. A further appeal to the Federal Court of Justice usually takes less time, since it only concerns ques - tions of law. With the possibility of having a case referred back to the Higher Regional Court, the total duration of court proceedings is difficult to predict. In the Confectionery Cartel, for example, the court proceedings took another ten years, partly because of restrictions related to the COV - ID-19 pandemic. Also in this regard, the Higher Regional Court found a violation of the right to a fair trial and an undue delay of proceedings of two years and six months, which ultimately resulted in a further reduction of the fine. Another recent example of lengthy proceedings is the Kölsch brewery case. After the FCO had opened its investigation in 2012 and issued fin - ing decisions in late 2013 and 2014, the appeal was pending before the courts for almost ten years. However, the appeal was ultimately suc - cessful. The defendants achieved a rare full acquittal before the Federal Court of Justice in November 2023.
the form of follow-on proceedings. Private firms and individuals may claim damages from car - tel behaviour (Sections 33a of the ARC et seq). Such claims are not limited to direct purchasers; they can also be brought by other persons in the supply chain, and, as established by the Fed - eral Court of Justice in the Trucks cartel cases, even by lessees of the products subject to the cartel infringement. In addition, the law provides for the opportunity to claim for injunctive relief and rectification. Damage actions are becoming increasingly more common in practice in Ger - many, with claims amounting to millions of euros in individual cases. This is in part because the rather plaintiff-friendly ECJ case law is aiming at the full effectiveness of EU law. Damages Actions For a damages action to succeed, the defend - ant must have engaged in a cartel infringement resulting in a financial loss to a third party. If the cartel behaviour has been established in a final decision by a competition authority, this finding is binding on the court and no longer needs to be proven by the claimant. Otherwise, the claim - ant bears the full burden of proof for the cartel infringement. This is why standalone damage claims are rather uncommon. Burden of Proof Under the general rules of civil procedure, the claimant would bear the full burden of proof concerning all these questions. Deviating from these general rules, the ARC provides for a shift in the burden of proof with regard to the exist - ence of damage, as Section 33a(2) of the ARC provides for a rebuttable legal presumption that cartels result in damages. However, as men - tioned in 1.3 Private Enforcement , this provision is only applicable for damages occurring after 27 December 2016.
6. Civil Litigation 6.1 Private Rights of Action
The most common form of private litigation in Germany is cartel damages litigation, typically in
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