European Union: EU Antitrust Private Damages Actions

Keywords: EU, antitrust damages, Germany

In our last Legal Update in a series of commentary pieces by Mayer Brown about the directive on private antitrust damages actions1 (the "Directive"), we focused on the impact of the Directive in England.2 In the present Update we turn to antitrust damage claims in Germany and the impact of the Directive on German law. In the coming weeks we will comment on the position in France.

1. What is the current climate for private antitrust damages actions in Germany?

Throughout recent years a number of follow-on actions have been filed with the German courts, based on cartel decisions of the European Commission (such as the carbonless paper cartel, the hydrogen peroxide cartel and the airfreight cartel) as well as cartel decisions of the German National Cartel Authority (Bundeskartellamt) (such as the ready-mix concrete cartel and the cement cartel). In these antitrust damages actions the German courts clarified important legal questions, for instance with regard to the passing-on defence as well as the possibilities of bundling together a number of claims in one court proceeding.

German law is favourable to follow-on actions as it binds the German courts not only to the final cartel decisions of the European Commission and the Bundeskartellamt, but also to those of the National Competition Authorities ("NCA") of the other EU Member States. So if for instance the English NCA determined that certain individuals or entities had engaged in a cartel, the German courts would accept such finding as binding in damages actions brought before them. In that regard, German law is even friendlier to cartel victims than required by the Directive. Also the rules governing the limitation periods are supportive to follow-on actions. Any limitation period is suspended when the Commission, the Bundeskartellamt or a NCA of any other Member State initiates cartel infringement investigations.3

On the other hand, standalone actions do not play a significant role in the German jurisdiction. This is because of the very limited disclosure opportunities provided by German civil procedural law, which makes it difficult for claimants to prove a cartel law infringement. Also small consumer claims are rarely pursued in Germany as no procedures for collective redress exist, neither opt-in nor opt-out.

Damages actions may be brought against business entities as well as against individuals no matter where they are located as long as the infringement occurred (also) on the German market. Cartelists are jointly and severally liable for the damages provoked by the infringement. German law provides for full compensation of any direct and indirect loss. Hence, not only direct purchasers but also indirect purchasers are entitled to claim for damages against the infringers of competition law. To avoid overcompensation, cartelists are allowed to raise the passing-on defence.

2. How will the Directive affect German law?

2.1 Access to evidence

To date, plaintiffs in German civil proceedings have only very limited access to documents in possession of the defendant. There are no discovery or disclosure proceedings comparable to those in the US or UK. Moreover, German courts have proven to be hesitant in granting access to the files of the Bundeskartellamt in order to obtain information in support of an anticartel damages action. Enacting the Directive in Germany will require considerable change in this regard. The German legislator will have to ensure that, pursuant to section 5 of the Directive, a court may order the adverse party or even third parties to disclose documents, if:

  • the request for production is sufficiently justified, containing reasonably available facts and evidence sufficient to support the plausibility of the claim for damages;
  • the request specifies sufficiently the item of evidence or the relevant categories of evidence, circumscribed as precisely and as narrowly as possible on the basis of reasonably available facts;
  • the disclosure is proportionate, taking into consideration the legitimate interests of all parties and third parties concerned and, among others, the scope and cost of disclosure and whether the content to be disclosed is confidential.

In remains to be seen if the legislator will implement these rules into the Code of Civil Procedure making the provisions applicable to all kinds of civil litigation, or if the disclosure duties will be restricted to cartel damage claims.

It will also be interesting to observe, how strictly or widely the courts will apply the new disclosure provisions once they are enacted and what kind of evidence will be protected from disclosure by privilege. So far, as a matter of course privilege has played an insignificant role in German civil proceedings. However, German law acknowledges that external lawyers can refuse to testify and disclose information received from their client. Case law is not consistent on the issue of whether this privilege also applies to in-house counsel. In addition, business secrets are protected under Art. 12 (professional freedom) and Art. 14 (property) of the German Constitution and, therefore, may also be privileged.

With regard to access to the files of the Bundeskartellamt, the legislator will also have to enact new law which will transfer the concept of Section 6 of the Directive into German law, according to which:

  • leniency statements and settlement submissions are not disclosable (Section 6(6) in connection with Sections 2(16) and 2(18) of the Directive), in order to protect leniency programs, which play a key role in antitrust enforcement (the so-called black list),
  • documents contained in the file of a national competition authority shall only be disclosable after the investigations have been concluded, in order to protect ongoing investigations and the surprise effect of dawn raids (Section 6(5) of the Directive – the so-called grey list),
  • where the above is not applicable and no party or third party is reasonably able to provide the requested evidence, national courts may request disclosure from a competition authority (Section 6 (10) – the so-called white list).

2.2 Joint and several liability and leniency recipients

The rule of joint and several liability for infringers of competition law is provided for in Section 11(1) of the Directive. This rule already exists in German law. However, pursuant to Section 11(4) of the Directive, joint and several liability shall not apply to leniency recipients, which are thus only liable for their own participation in the antitrust infringement and with regard to their direct purchasers or providers only. Only if other injured parties cannot obtain compensation from other cartelists can immunity recipients be forced to compensate their damage. This rule does not exist currently in the German legislation and will have to be implemented accordingly.

2.3 Coordination of actions for damages by plaintiffs from different levels in the supply chain

Not only direct customers of cartelists may suffer damages but also indirect customers if and to the extent the direct customers are able to pass on the price increase to the next market level. In order to avoid the cartelist having to compensate both direct and indirect customers for the same damage twice, the cartelist may invoke the so called passing on defence. According to Section 13 of the Directive, the passing on defence shall be accepted by the courts of the Member States. Sections 14 and 15 of the Directive contain further procedural and material provisions regarding the coordination of damages actions by plaintiffs from different market levels.

While the passing on defence and the standing of direct as well as indirect customers are already accepted by the German courts, some of the provisions of Sections 13, 14 and 15 of the Directive will require changes in the law. Section 15 states that in order to avoid contradicting decisions as to whether the overcharge was passed on or not, national courts shall be informed of all damage claims brought before other courts. National law must determine the method of compliance with this provision. It is unclear which method will be used to implement this coordination in the German legal system. As of today no central claims register or court docket exists. It also remains to be seen if a possible claims register will be publically accessible, encouraging other victims of a certain cartel to file claims, or if only the courts will have access.

3. What are the funding options and costs implications for parties involved in antitrust damages claims in Germany?

In German civil litigation the costs are foreseeable to a large extent. This is because the courts fees as well as the statutory minimum lawyers' fees are not based on the amount of work involved in handling the matter but on the value in dispute. German law follows the loser pays all approach. So the losing party has to bear the full amount of the court fees. In addition, the winning party can claim compensation for its counsel costs. However, this compensation claim is limited to the statutory minimum lawyers' fees. Therefore, each party can calculate in advance the cost risk it is facing in a worst case scenario in addition to its own counsel costs. Moreover, costs in German litigation are usually significantly lower than in the US and the UK given the absence of expensive disclosure proceedings and barristers. As a result, third-party funding plays a less prominent role in Germany than in the US or UK. However, third-party funding is possible and has increased in the last decade.

Cartel victims can also share their costs by bundling their claims together in one court proceeding. It is also possible to transfer the claims to another entity, which will pursue them in its own name. However, such entity must have sufficient funds to compensate the defendant in case the claims are dismissed.

Contingency fees are generally not permissible and in court proceedings lawyers may charge their clients not less than the statutory minimum lawyers' fees.

4. Is there a time limit on making a claim in Germany?

The limitation period for anti-trust damage claims in Germany is currently 3 years. It starts running at the end of the year when the victim becomes aware of the facts that justify the claim, the identity of the infringer and the incurred damage, or when it should have become aware of these elements but for gross negligence. The limitation period is suspended if the Bundeskartellamt, the European Commission or the NCA of another Member State initiates an investigation of the competition law infringement. The Directive will require minor changes to this set of rules. In particular, the limitation period will have to be extended to 5 years.

5. What is the standard of proof and what evidence is admissible in Germany?

Given that the courts are bound to a final decision of the Bundeskartellamt, the Commission and the NCAs of the other Member States, the plaintiff can establish the existence of a cartel and the participation of the defendant in the cartel by reference to the respective decision. Far more challenging is the proof of the amount of damages suffered. Here the hurdles are high, although sec. 287 of the German Code of Civil Procedure grants the courts authority to estimate the amount of damages at its free conviction, taking into consideration all circumstances of the case. In order to establish a sufficient basis for an estimation of the amount of damages by the court, expert evidence is required. The court appoints its own neutral expert who will prepare an expert report and will defend such report in an oral hearing. Party appointed experts do not constitute evidence in the meaning of the German Code of Civil Procedure. However, the parties need their own experts to enable them to assist the court appointed expert with information as well as to assess and – as the case may be – challenge his or her findings.

The Directive will alleviate the burden of proof for indirect customers if the defendant raises the passing on defence. In this case, the indirect customer has only to prove that the defendant committed an infringement of competition law, that it resulted in an overcharge for the direct purchaser, and that plaintiff purchased goods from this direct purchaser (Section 14(2) of the Directive). This shall not apply if the defendant can demonstrate credibly to the satisfaction of the court that the overcharge was not, or was not entirely, passed on to the indirect purchaser.

6. What steps should you take at this stage?

The implementation of the Directive in German national law will no doubt foster private cartel damages actions. An increasing number of businesses in the German market are no longer prepared to accept disadvantages suffered by a cartel but take an aggressive approach to litigation. One example is Deutsche Bahn AG, which established a whole group of experts in their legal department, who successfully focus on litigating cartel damage claims.

Defendants to anti-trust damages actions will have to closely observe how the disclosure duties in Art. 5 and 6 of the Directive will be transferred into national law. So far, businesses, which are not active in the Anglo-Saxon jurisdictions, are not experienced in discovery and disclosure proceedings and, hence, have little awareness of the pitfalls connected to them. For those it is will be crucial to implement document retention policies at an early stage in order to be able to meet their future disclosure duties and to avoid any disadvantage due to contempt of court.

Originally published 15 April 2015


1. Directive 2014/104/EU on antitrust damages actions

2. See:

3. The time limit on making a claim in Germany is explained in more detail below.

Learn more about our Antitrust & Competition and Litigation & Dispute Resolution practices.

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions