GERMANY Trends and Developments Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
ECJ on Collective Debt Collection in Damages Cases
German Limited Liability Companies Act (Gmb - HG) and the German Stock Corporation Act (AktG). The question that was now turned to the ECJ is whether directors or officers can be held liable for their companies’ antitrust fines – a mat - ter that has significant implications for corporate governance and insurance. In the case before the Federal Court of Justice, the defendant, a former manager of a company that was found guilty of antitrust violations, was facing claims for compensation for the FCO- imposed fine of EUR4.1 million and related costs of EUR1 million. Both the Regional Court and the Higher Regional Court of Düsseldorf affirmed the principle of directors’ and officers’ liability (D&O Liability) but rejected the claim concerning the cartel fine and related costs. The courts rea - soned that allowing D&O Liability for such fines would undermine the purpose of corporate fines, which is to prevent antitrust violations. Compa - nies might have insufficient incentive to prevent violations if they can seek compensation from their directors and officers. The Federal Court of Justice now essentially needs the ECJ to clarify whether the undertaking’s possibility to seek redress from its managers undermines the prin - ciple of effectiveness of cartel fines against com - panies. The Federal Court of Justice appears to acknowledge the general admissibility of redress claims under German law since EU law implica - tions would not otherwise be decisive in its judg - ment. The ECJ’s ruling, which is not expected before 2026, will have significant implications for companies and D&O insurers. Conclusion and Outlook The FCO’s activities in 2024 demonstrate a robust and proactive approach to cartel enforce - ment in Germany. The authority’s increased fines, advanced detection technologies and effective use of whistle-blower systems have
For a long time, claimants and defendants in Germany have been arguing on the admissibil - ity of private cartel enforcement by the means of collective debt collection. In a preliminary ruling of January 2025, the European Court of Justice (ECJ) decided on a referral from the Regional Court of Dortmund in the ASG 2 case. The Regional Court was concerned that the prohibi - tion of such assignment models would hinder the effective enforcement of cartel damages claims. Unfortunately, the ECJ’s ruling did not bring much clarity. The Court ruled that a prohi - bition of assignment models impairs the effec - tive enforcement of cartel damage claims. How - ever, the judgment was explicitly based on the Regional Court’s premise that German domestic law did not provide for alternatives to the claims management firm for collective enforcement and that individual claims would have been practi - cally impossible or excessively difficult. The ECJ did not review whether this was the case. Advo - cate General Szpunar’s opinion, in particular, raised significant doubt as to whether this prem - ise was correct as regards the claimants in the initial proceedings. The ECJ therefore required that the domestic courts perform a full assess - ment of each individual case. Managers’ Liability for Antitrust Violations The issue of managers’ liability for corporate antitrust fines has gained significant attention following a landmark case referred to the ECJ by the German Federal Court of Justice. This case originated from a EUR205 million fine imposed by the FCO on several steel industry companies and individuals for price-fixing. Under German company law, managing direc - tors and officers are liable for breaches of duty towards their companies, as stipulated in the
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