In a judgment of 26 March 2014, the Higher Regional Court of
Düsseldorf has rejected an appeal by Danish hearing-aid
manufacturer GN Store Nord A/S against a judgment by the Regional
Court of Cologne that rejected GN Store's action for damages in
the amount of more than € 1.1 billion against the German
Federal Cartel Office (FCO).
In the first German case in which the FCO was the target of an
action for damages, GN Store sought compensation for damages
resulting from the FCO's 2007 prohibition of the merger of GN
Store's hearing-aid business with Phonak Holding AG. In its
judgment of 26 February 2013, the Regional Court confirmed that the
FCO officials had breached their official duties because the
prohibition decision had been unlawful. However, the Court held
that GN Store had not demonstrated the required intent or
negligence on the part of the FCO officials as there had been no
indication that they had arrived at their conclusions without
careful examination of the legal and factual bases (see VBB on
Competition Law, Volume 2013, No. 4, available at
The Higher Regional Court has now confirmed the Regional
Court's reasoning. The FCO's prohibition decision had been
the result of an extensive examination of the facts involving
numerous difficult legal and factual questions. According to the
Higher Regional Court, the legal view taken by the FCO in its
prohibition decision had been defensible at the time of the
decision. The Court notes that, if an official takes a view after
careful examination, and this view is legally defensible, the
official cannot be considered at fault if this view is later
overturned by the courts. At the time of the prohibition decision,
the interpretation of the German provisions on collective dominance
had not yet been clarified by the German Federal Court of
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