GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
6.7 Costs/Fees German procedural law follows a loser-pays principle, which is limited to the statutory fees. These fees include both sides’ attorney’s fees and the court fees (see 6.6 Attorneys’ Fees ) 6.8 Judicial Review or Appeal First-instance judgments in cartel damage pro - ceedings are regularly subject to appeal before the higher regional courts. The appeal can be based on a wrong application of the law or an erroneous finding of the facts in the first instance. New facts and evidence may only be brought forward to a limited extent. A first-level appeal can again be appealed before the Federal Court of Justice if the higher regional court admits such a second-level appeal. This review is restricted to questions of law. 7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence The exchange of competitive sensitive informa - tion can amount to a cartel offence under Ger - man law. The FCO regularly pursues cases of information exchange and treats them as hard - core infringements. Consequently, the fines imposed for such offences can be significant. The legal standards are similar to the standards developed at EU level. If the exchange of confi - dential, strategic information leads to a situation where the companies involved no longer make their future market decisions independently, this typically amounts to a cartel offence. 7.2 Use of AI and Algorithms While the FCO has dealt with questions sur - rounding AI in several cases of unilateral con -
claimant must not be able to obtain the infor - mation otherwise – for example, by requesting the desired information or document from the defendant or third parties under Section 33g of the ARC. Claimants’ rights to access to file are limited (see 2.8 Protection of Confidential/Pro - prietory Information) . 6.5 Frequency of Completion of Litigation The number of court proceedings in cartel dam - age claims is still increasing. Nevertheless, most cases are being settled before court proceed - ings have even been initiated. This is particularly true if the parties are still in an ongoing business relationship. If a case ends up before the court, the time - frame can differ significantly from case to case. It mainly depends on the legal and economic complexity of the case and on the workload of the deciding chamber. A judgment in the first instance can easily take two years, and rarely takes less than one year. Some chambers face a significant work overload, mainly because of the rise of mass proceedings like the claims against the truck cartel. Therefore, it is no longer unusual for cases to remain pending for six years or more in the first instance. 6.6 Attorneys’ Fees The compensation of attorneys is, in most cases, subject to an agreement between the respective party and their attorney. The agreed fees must not be lower than the statutory fees, which main - ly depend on the value of the claim. This value is capped at EUR30 million for the determination of the legal fees. Contingency fees are generally prohibited under German law.
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