GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
and litigation financing via online-based plat - forms. However, courts do not always accept the legality of an assignment to such claims vehi - cles. For instance, in 2020, the Regional Court of Munich dismissed the claims of more than 3,000 freight forwarders against members of a truck cartel because of a breach of the Legal Services Act ( Rechtsdienstleistungsgesetz ). In light of the Federal Court of Justice’s AirDeal judgment of July 2021, which approved a similar claims vehicle in a joint consumer claim regard - ing an insolvency dispute, it seems questionable whether this judgment will be upheld. However, the Federal Court of Justice has not yet ruled on this issue in the context of cartel damage claims. The Regional Court of Dortmund has therefore requested a preliminary ruling regarding the tim - ber cartel. In its judgment, the ECJ found that the EU principle of effectiveness may require the admissibility of assignment models under national law, but only if other effective means for the private enforcement do not exist. Since the ECJ did not answer the underlying question whether this is the case under German law, the judgment does not shed much light on the gen - eral admissibility of assignment models. 6.3 Indirect Purchasers and “Passing On” Defences The right to claim damages also extends to indi - rect purchasers and even other parties that may be affected by the cartel, such as lessees. The procedural setting is the same as that for claims by direct purchasers. For a claim by an indirect purchaser to be successful, the cartel must have caused damage to the direct purchaser of the product or service affected by the cartel. In a second step, this damage must have been passed on to the claimant. For damages that occurred before 27 December 2016, the burden of proof lies with the claimant. For damages that
occurred after that date, Section 33c(2) of the ARC provides for a legal presumption that dam - age has been passed on. The defendant can rebut this presumption. If the claim is brought by a direct purchaser, the defendant can bring forward the passing-on defence. However, there is no legal presump - tion in their favour that the direct purchaser has passed on their damage to the next market lev - el. In addition, the defendant at least needs to substantiate that there were no negative volume effects (lost profits) due to the anti-competitive sales prices. The Federal Court of Justice′s decision in its fifth ruling in connection with the railway cartel makes it more difficult for defend - ants to invoke the passing-on defence. The court ruled that, in cases of scattered damages where the indirect customers are unlikely to assert their relatively low damages, allowing for a passing- on defence would lead to an unjustified exonera - tion of the cartel participant. In other (albeit exceptional) cases, such as intra- group sales, courts have shifted the burden of proof that the damage was not fully passed on to the purchaser. Fining decisions from competition authorities are usually the core evidence in cartel damage proceedings and are binding on the court (see 5.3 Effect of Liability Being Established and 6.1 Private Rights of Action ). With the exception of leniency applications and settlement submis - sions, other evidence obtained from the public enforcement proceedings can also be used as evidence. However, the conditions for a claimant to obtain such documents as laid out in Sec - tion 89c of the ARC are strict. Specifically, the 6.4 Evidence Obtained From Governmental Investigations/ Proceedings
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