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).
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.