GERMANY Trends and Developments Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
Truck Cartel IV and V In 2024, the Federal Court of Justice issued two additional truck cartel judgments. In the Truck Cartel IV judgment, the Court found that the appellate court had imposed excessive require - ments on the plaintiff’s burden of proof and thus lowered it further. To establish the required prob - ability of certain minimum damage, a claimant does not necessarily have to provide an eco - nomic expert report. However, the Court reiter - ated that, if it is virtually impossible for a cartel not to have had a price-increasing impact, the trial court does have the option to estimate mini - mum damage or to obtain an independent eco - nomic expert report. Several lower courts have already made use of this option. That said, in many cases, estimated damage has remained significantly below the claimants’ expectations. For instance, in the Sugar cartel case heard by the Regional Court of Mannheim, the court found a cartel overcharge of only 2%, and in the Drugstore cartel, the Higher Regional Court Schleswig estimated a cartel overcharge of just 0.5%. With some pending cases unresolved for more than ten years, the length of proceedings in Ger - many is another deterring factor for potential claimants. In the Trucks Cartel V case, the Fed - eral Court of Justice has rendered an important judgment to speed up the appeals process. The court has clarified the conditions under which appellate courts can remand a cartel damage case to the regional court for the taking of evi - dence. It emphasised that remanding is only possible if extensive or complex evidence is certain to be required. These clarifications are likely to limit the common practice of having a case heard in first instance twice.
and Kemna Bau Andreae GmbH & Co KG had agreed that Kemna would submit a protective bid to ensure that the contract was awarded to a consortium involving Strabag. This case underscores the FCO’s focus on the construc - tion industry, which is historically prone to cartel activities. Competition Register for Public Procurement Companies face a new challenge in the after - math of cartel proceedings. Any company which has committed a serious economic offence – eg, a cartel infringement – is now entered in the electronic Competition Register for Public Procurement. Public contracting authorities can consult this single nationwide electronic regis - ter, and, based on the result, assess whether a tendering party should be excluded from an award procedure. The Competition Register must be consulted for all procurements valued at EUR30,000 or more, net of tax. Managed by the Bundeskartellamt , the Competition Register provides a centralised database of information on any violations. Deletion from it is only possi - ble after three years, unless a company applies for a withdrawal due to “self-cleaning” . This lat - ter requires several conditions to be met, such as satisfying detailed compliance measures, comprehensive co-operation during the investi - gation, and taking steps to compensate for any damage caused by an infringement. Although the FCO has published extensive guidance on the expected “self-cleaning” measures, most of the details still need to be worked out in practice, causing considerable work and uncertainty for the companies concerned. Key Developments in Litigation of Cartel Damages In the area of cartel damages, the courts are showing a continuing trend toward strengthen - ing private enforcement.
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