GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
Nevertheless, for damages that occurred before that date, the courts can ease the bur - den of proof for the claimant to some extent. To establish causal damage, the Federal Court of Justice′s case law – notably in a series of cases regarding alleged damages arising from a rail - way cartel – requires a comprehensive assess - ment of all relevant aspects of the case. As part of this comprehensive assessment, the Feder - al Court of Justice requires the courts to take into account “factual presumption” that cartels lead to damage. To outweigh this presumption in the comprehensive assessment, defendants can bring forward facts and evidence (generally economists’ expert statements), which the court The courts can estimate the quantum of the dam - age (Section 287 of the Code of Civil Procedure). In order to provide the court with the necessary factual basis for the estimate, the parties usually rely on economic expertise. However, during the past few years, some regional and higher region - al courts have attempted to estimate the damag - es somewhat freely and even without turning to economists′ expert statements. Several appeals against such judgments are currently pending, in particular in a series of railway cartel cases. The Federal Court of Justice is ultimately expected to provide more guidance, likely to the benefit of claimants. also has to consider. Quantum of Damages To date, the Federal Court of Justice has not issued a judgment specifically dealing with this practice of free judicial estimation. Previous rul - ings, such as the 2022 Schlecker judgment, indi - cate that Germany’s highest court acknowledg - es the importance of economic expert reports for the estimation of damages. This may limit the courts’ powers to estimate damages freely. In the Schlecker judgment, the court stated that
the judge may not “without further ado” reject a request for evidence to obtain an independ - ent expert opinion or refrain from obtaining it ex officio if the judge has previously assumed methodological errors or incorrect fact-finding in the submitted expert opinion by the parties. However, in a 2024 Trucks judgment, the Fed - eral Court of Justice also decided that claimants cannot be required to provide an expert analy - sis and that sufficient indications for a minimum damage can also be drawn from other facts. Preparing a Claim To prepare or support a claim, claimants have a right to request documents or information from the defendant or any other person in possession of relevant information (Section 33g of the ARC). Requests for documents or information are only justified if they are proportionate and must not extend to leniency applications or settlement submissions. Cartel damage claims must be brought before the competent regional courts (Section 87 of the ARC). However, not all regional courts have juris - diction over cartel-related proceedings because most of the federal states have assigned juris - diction over these actions to designated regional courts and designated chambers within these courts. 6.2 Collective Action There are no class actions in Germany; however, injured parties can assign their claims to a third party who can then file a bundle of claims. This practice has become particularly relevant for individuals who would otherwise not be willing to seek legal recourse for their (comparatively) small damages. In recent years, such bundling of claims has become more popular, with the rise of legal tech
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