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Tag Archives: 9th amendment of the GWB

Closing the so called “Sausage gap” – Cartel fine procedures after the 9th amendment of the German Act against Restraints of Competition (GWB)

With the amendments to the cartel fine procedure introduced by the 9th amendment of the GWB the legislator intends a harmonization with EU-law and significantly extends the liability for cartel fines.

With the 9th amendment of the GWB, the legislator again attends to the closing of the so called “sausage gap”. This sanctioning gap in the German competition law derives its name from the sausage manufacturer Tönnies who was able to evade a three-digit million fine imposed by the Federal Cartel Office (FCO) by a clever corporate restructuring of his sausage empire. The essential assets of the legal entities responsible under antitrust law were transferred to other group companies and the legal entities ceased to exist.

The return of the kin liability (Sippenhaft) – Liability of parent companies after the 9th amendment of the German Act against Restraints of Competition (GWB)

The Middle Ages are regarded as the golden age of the kin liability (Sippenhaft) in Germany. According to the principle of kin liability, family members had to stand up for the actions of their relatives, regardless of whether they were involved or not. Thus, kin liability was a form of collective liability. A family member was liable even if it had done nothing wrong. This principle was so far unknown to the German law of regulatory offences and law of torts. In these areas of law it was undoubtedly the principle of separation of legal entities (Trennungsprinzip) that ruled. Pursuant to such principle, a legal entity is only liable for such antitrust violations that have been committed by its organs or employees in an attributable manner. Not for more. The 9th GWB-amendment now applies the ax to this basic principle. Is there a relapse into dark medieval times? This blog post is devoted to the question what the new German law has to say on the issue of corporate collective liability in the field of competition law.

(No) need to argue – What is certain, what is presumed and what can be estimated in cartel damage litigation after the 9th amendment of the German Act against Restraints of Competition (GWB)

Where is no plaintiff, there is also no judge: Private enforcement of competition law presupposes that there are plaintiffs who take a cartel to court. Plaintiffs exist where actions are worth it. Cartel victims may obtain compensation of many millions or even billions. In general, however, the hurdles in the German Code of Civil Procedure (ZPO) are high as the plaintiff must demonstrate and prove all the facts substantiating the claim. If the legislator wants to have as many plaintiffs as possible he must therefore reduce the burden of proof. Already under the rules previously applied there were some alleviations of the burden of proof. With the 9th amendment of the German Act against Restraints of Competition (GWB) the legislator has removed another hurdle. The following article provides an overview of what is certain, what is presumed and what can be estimated in cartel damage litigation after the 9th amendment of the GWB – and therefore does not need to be proven (any more).

Plaintiff’s paradise? – The passing-on defense after the 9th amendment of the German Act against Restraints of Competition (GWB)

Cartelists facing damage claims by their customers regularly defend themselves with the objection of the so-called passing-on defense. According to such objection, a purchaser of the cartel cannot claim damages in so far as it has passed on the cartel surcharge to its customers. This follows from a general principle of tort law according to which the injured party should not be entitled to claim more damages than what is necessary in order to compensate it for the actual damages it has suffered. In other words: the injured party should not be overcompensated. In turn, indirect customers at the downstream market level, who bear the actual damage, should be entitled to a claim for compensation against the cartelists. This principle (passing-on defense admissible, in turn indirect buyers can assert their own claim for compensation) is now regulated by the 9th amendment of the GWB in § 33c GWB. The German legislator thus transposes the EU damage action directive into the German law. But is this really new? After all, in its ORWI decision of 2011 the German Federal Supreme Court (BGH) had already generally endorsed the passing-on defense, as well as the entitlement of indirect purchasers to bring their own damages claims against the cartel (here). So business as usual in Germany? This blog post tries to give an answer to this question.