1 Legal framework
1.1 Which laws regulate competition in your jurisdiction?
German competition law is governed by the Act on Restraints of Competition. In addition, EU competition law – notably Articles 101 and 102 of the Treaty on the Functioning of the European Union – is directly applicable. In some sectors (eg, energy, healthcare, media, agriculture), sector-specific rules may apply.
1.2 Which authorities are responsible for enforcing the competition legislation? What is their general approach to enforcement?
German competition law is mainly enforced by the Federal Cartel Office (FCO). The FCO is an independent federal authority with approximately 400 employees, based in Bonn. Its tasks include merger control, cartel enforcement and abuse of dominance proceedings. In addition, there are regional competition law authorities on a federal level. However, the relevance and enforcement activities of these regional authorities is very limited.
2 Private claims
2.1 What types of private claim may be brought for breach of competition law in your jurisdiction?
A claimant can request that:
- the harm caused by an alleged competition law infringement be rectified;
- the infringer desist from committing further infringements; and
- it be compensated for the damage caused by the infringement.
In addition, a claimant can argue that a contract infringes competition law and that the contract or parts thereof are therefore null and void and not enforceable.
2.2 What is the legal basis for bringing a claim for breach of competition law?
The legal basis for claims aimed at rectifying the harm caused by an infringement, and claims aimed at injunctive relief is Section 33 of the Act on Restraints of Competition. The legal basis for damages claims is Section 33(a) of the act. The invalidity of contracts infringing competition law is based on Section 134 of the Civil Code, in combination with the competition law provisions of the Act on Restraints of Competition or the Treaty on the Functioning of the European Union.
3.1 Who has standing to bring a claim for breach of competition law?
Any natural or legal person that is negatively affected by a competition law infringement has standing to bring a competition law claim. The negative impact can be direct or indirect (eg, both direct and indirect purchasers of a cartelised product). Whether indirect purchasers are entitled to bring a claim used to be subject to intense discussion by the lower courts, but was confirmed in 2011 in a landmark decision by the Federal Court of Justice.
3.2 Can a claim for breach of competition law be brought against parties outside the jurisdiction?
Yes. Claimants can bring competition law claims against non-German natural or legal persons in the German courts based on the place of the competition law infringement. The place of the infringement may be:
- the place where the infringement was agreed (eg, the place where a cartel was agreed);
- the place where the infringement took effect (eg, the country/region where cartel members allocated markets or customers); or
- the place where the infringement caused harm (eg, the place where a customer suffered damage).
Additionally, in cartel cases, claims against all cartel members can be brought in Germany if one member of the cartel (‘anchor defendant') is based in Germany.
3.3 Can a claim for breach of competition law be brought against individuals, or only companies?
Claims can be brought against both individuals and companies.
4 Collective actions
4.1 Is it possible to bring a collective action for breach of competition law in your jurisdiction? If so, what is the applicable regime?
German law does not provide specific instruments (eg, class actions) for bringing collective actions in competition law matters. However, despite the lack of specific instruments, there are options allowing for collective actions.
Under the general procedural law, different claimants can bring their claims jointly in a single action (‘Prozessgenossenschaft'). This is admissible if the claims are similar and based on the same facts (eg, damage claims against a member of a specific cartel). Formally, the action by each claimant remains independent from the actions by the other claimants. However, all actions are treated procedurally together – that is:
- all claims are presented in a joint statement of claims;
- there are joint hearings and joint hearing of evidence; and
- the court issues a joint decision.
Streitgenossenschaft is aimed at enhancing procedural economy and allows both claimants and defendants to reduce costs. However, the practical use of Streitgenossenschaft in competition law matters is often limited. For example, some claimants may hope for quick settlement, while others may be seeking the highest possible return; or some claimants may have access to high-quality evidence for their claims, while others may not.
In practice, the ‘assignment model' has become the prevalent method in Germany to bundle claims. Under the assignment model, claimants assign their claims to a third party, which subsequently brings these claims in its own name. The assignment model is notably offered and used by specialised competition law claims companies and litigation funding firms. However, the assignment model has encountered a number of procedural hurdles in practice. Some courts have argued that assigning claims might unfairly shift the cost risks to the defendants; while others have held that the assignment model infringed the Legal Services Act. Following a judgment by the Federal Court of Justice in 2021 and legislative amendments to the Legal Services Act, most of the legal issues appear to be resolved. The assignment model is thus clearly an option to bundle claims. Whether it is a practical option – notably in comparison to the options available in other jurisdictions – remains to be seen.
4.2 Do collective actions proceed on an ‘opt-in' or an ‘opt-out' basis?
4.3 Do collective actions require certification? If so, what requirements must be met to obtain certification?
5.1 In what forum(s) are claims for breach of competition law heard in your jurisdiction?
Competition law-related claims must be brought before a district court. Most federal states have designated, within their territory, up to three specialised district courts. A district court has jurisdiction within Germany if there is a local nexus. This might be, among other things:
- the defendant's domicile;
- the place where the competition law infringement was agreed; or
- the place where the damage caused by the infringement materialised.
6 Bringing a claim
6.1 What is the limitation period for claims for breach of competition law in your jurisdiction?
The standard limitation period for competition law-related claims is five years. The five-year limitation period starts at the end of the calendar year in which three conditions are (cumulatively) met:
- The claim has arisen (eg, damage has been caused);
- The claimant knows or could be expected to know the facts underlying the infringement and the claim; and
- The infringement has ended.
Claimants are unlikely to be considered to have knowledge based on (speculative) press reports about an alleged infringement. The assessment might be different with respect to press releases by the Federal Cartel Office (FCO) or the European Commission announcing that an infringement decision has been adopted, even if the actual decision is not yet available.
Further applicable limitation periods are:
- a 10-year limitation period (beginning once the claim has arisen and the infringement has ended, regardless of whether the claimant had knowledge of the infringement); and
- a 30-year limitation period (beginning with the infringement, regardless of termination and knowledge).
The limitation periods are suspended during investigations by the FCO, the European Commission or competition authorities in other member states. The suspension period ends one year after the authorities have adopted a non-appealable decision. If the infringer appeals an infringement decision by a competition authority, the limitation period is suspended until one year after the courts have issued a final, binding decision.
6.2 What are the formal requirements for bringing a claim for breach of competition law?
To bring a claim, the claimant must submit a written statement of claim to the district court. The statement of claim should specify:
- the parties;
- the actual claim; and
- the facts on which the claim is based.
As with all claims brought before a district court, the statement of claim should be submitted by an attorney at law admitted in Germany.
The court will formally serve the statement of claim to the defendant. However, the court will initiate service only once it has received the court fee (see question 6.7).
6.3 What are the procedural and substantive requirements for bringing a claim for breach of competition law?
As long as the formal requirements (see question 6.2) are met, there are no further procedural or substantive requirements for bringing the claim.
6.4 What are the implications if a public enforcement action in relation to the same behaviour is pending? Can a claim still be brought?
A claim can be brought even if the alleged infringement is still being investigated by the FCO, the European Commission or any other competition law authority. However, if the investigation is still ongoing, the claimant cannot benefit from the ‘binding effect' which applies in case of follow-on litigation based on a non-appealable decision by a competition authority (see question 10.5 for further details).
6.5 How is jurisdiction over the claim determined?
The court before which the claim has been brought is assumed to have jurisdiction as long as the defendant does not challenge its jurisdiction. If the court does challenge the court's jurisdiction, the court will assess whether it has jurisdiction. If the court concludes that it does not have jurisdiction, it will refer the claim to the German court that it considers has jurisdiction. If the court concludes that the German courts do not have jurisdiction, it will dismiss the claim. The court's decision to refer the claim to another court is binding on both the parties and the court to which the claim has been referred.
6.6 How is the applicable law determined?
In practice, the applicable law in competition litigation cases follows the forum. German courts will usually apply German law or EU law which is directly applicable in Germany (eg, EU competition law). In theory, German courts could also apply non-German or non-EU competition law – notably in cross-border cases. However, there are very few reported cases where this has happened and the practical relevance is extremely limited.
6.7 Under what circumstances must security for costs be provided?
The court will serve the statement of claim only once the claimant has paid the court fee. The level of the court fee depends on the amount in dispute and must be calculated based on an index provided by statutory law. For example, the court fee (first instance) for a damage claim over €1 million is approximately €18,000. For the purposes of calculating the court fees, the amount in dispute will be considered to amount to at most €30 million (even if the actual claim is higher), resulting in a court fee (first instance) of up to approximately €360,000.
With respect to lawyers' costs – which, like the court fees, are determined based on the amount in dispute and the statutory fee index – neither an advance payment nor provision of security is required.
6.8 Are interim remedies available in competition litigation? If so, how are they obtained?
Interim measures are available. To obtain interim measures, the claimant must demonstrate that without the interim measures, there is an immediate risk that it will suffer significant harm. The claimant cannot request an interim measure which prejudges the outcome of the main proceedings. In practice, interim measures based on competition law are notably used to ensure the continued supply of certain products or services (eg, following the actual or threatened immediate termination of a distribution contract).
Interim measures should be requested through a separate written brief submitted to the court which is competent to hear the main proceedings. The claimant must argue and provide prima facie evidence that the interim order is urgent and required to prevent the alleged harm. Depending on the circumstances and urgency, the court may decide to issue an interim order without a prior public hearing.
7 Disclosure and privilege
7.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?
German law generally does not provide for disclosure or discovery rules comparable to those in common law jurisdictions. However, in 2017, the German legislature introduced new provisions allowing requests for disclosure.
The first new provision applies only to damages claims based on alleged competition law infringements and allows both claimants and defendants to request disclosure of evidence. Disclosure of evidence can be requested from the opposing party as well as from third parties. The claimant can request disclosure prior to or together with bringing the actual damages claim. The defendant can request disclosure of (exculpatory) evidence only once the claimant has brought a damages claim in court. The disclosure request is excluded if disclosure would be disproportionate. To assess proportionality, the courts will balance the legitimate interests of all parties involved, as well as the type and scope of evidence that is requested. The courts must ensure that adequate mechanisms are in place to protect confidential information and business secrets. The disclosure of leniency applications and declarations made as part of settlement discussions with competition law authorities cannot be requested.
The second new provision allows the court, on the application of either party, to request a competition authority to disclose evidence from its file. Again, the court must take into account the interests of the affected parties and the request must be proportionate. Leniency application and settlement declarations must be excluded.
So far, there is limited case law on the new disclosure provisions. A number of courts have disagreed on the question of whether they can be applied to infringements committed prior to the provisions entering into force in 2017. This will become less relevant as time progresses, and the discussions will focus increasingly on whether the newly introduced provisions actually allow for effective disclosure in damages claim proceedings.
7.2 What rules on third-party disclosure apply in your jurisdiction?
The recently introduced new disclosure provisions (see question 7.1) allow for disclosure to be requested from third parties and from the files of the competition authorities. Third parties can reject the request for disclosure if the applicable substantive or procedural law would allow them to refuse to provide testimony. This right to refuse disclosure applies, among other things, to the external counsel of both the claimant and defendant.
7.3 What rules on privilege apply in your jurisdiction?
German civil procedure does not include specific rules on legal privilege. Under the newly introduced disclosure rules for damages claims, both the external counsel and in-house counsel (to the extent they are qualified lawyers) of the claimant and the defendant are explicitly entitled to reject a request for disclosure (see question 7.1). However, the applicable rules do not explicitly exempt advice provided by external counsel or in-house counsel but in the possession of others (eg, non-legal employees of the claimant or the defendant), from disclosure. Such advice could become subject to disclosure, assuming that the court finds that this would not be disproportionate (see question 7.1).
In addition, a disclosure request may well include advice provided by external counsel or in-house counsel in the file of the Federal Cartel Office (FCO). In administrative proceedings, under German law, such advice is legally privileged only if the advice was prepared for the purposes of defending an alleged competition law infringer in ongoing proceedings. If the advice was prepared prior to the initiation of proceedings, legal privilege does not apply. The FCO can seize and use such advice; it thus may end up in the FCO's file and become subject to disclosure in damages claim proceedings.
8.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?
The permissible types of evidence under German procedural law include the following:
- on-site inspections;
- documents; and
- with restrictions, the hearing of the parties.
In competition law damages claim proceedings, witnesses, documents and experts are most relevant.
The parties can designate a witness by providing his or her name and address. In addition, the designating party should specify the facts on which the witness should be heard. The court will interview the witness and include questions suggested by the parties. German procedural law does not recognise the instrument of ‘cross-examination'. However, external counsel to the parties can address the witness directly with questions.
‘Expert evidence' is evidence provided by a court-appointed expert. The court can choose and appoint an expert if it lacks the required expertise itself. Expert opinions commissioned by and prepared for the parties may be useful to substantiate the arguments provided by the parties. The parties may also involve these experts when the court-appointed expert is heard. However, the evidence provided by experts appointed by the parties does not qualify as expert evidence within the meaning of German procedural law.
8.2 What is the applicable standard of proof?
The generally applicable standard of proof is that the court must be certain that a particular fact as presented by one party and disputed by another party is true. ‘Certainty' does not mean absolute certainty or require ‘mathematic-scientific evidence'. However, simple likelihood is not sufficient; there must be a high degree of likelihood. The court must believe that the relevant facts are true and must not have any ‘reasonable doubts'.
For damages claims, a different and lower standard of proof applies as to the amount of damage caused by a cartel. The court can estimate the amount of damage at its own discretion, taking into account all relevant circumstances. The certainty required under the usual standard of proof is not required; it is sufficient if the court considers it more likely than not that the amount of damage established corresponds to the damage actually caused.
8.3 On whom does the burden of proof rest?
The basic principle, which also applies to competition law claims, is that the claimant must prove all disputed facts on which the claim is based. However, with respect to competition law damage claims, various exceptions apply.
If the claim is based on an infringement that has been established by a non-appealable decision by the European Commission, the Federal Cartel Office or a competition authority in another EU member state, the claimant need not prove the infringement (‘follow-on litigation'). The court is bound by the competition authority's findings and must consider the infringement to have happened as established by the competition authority.
If the alleged infringement is a cartel, the applicable law assumes that the cartel caused damage. The presumption does not apply to the amount of damage caused (however, see question 8.2 with respect to the applicable standard of proof regarding the amount of damage). The defendant can rebut the presumption, which essentially means that the burden of proof as to whether the cartel caused a damage shifts to the defendant.
Finally, the law assumes that a price increase caused by a cartel was passed on from direct purchasers of the cartel of indirect purchasers. The presumption applies, under certain circumstances, to the benefit of indirect purchasers bringing a claim. The presumption is not available for defendants in a dispute with the direct purchaser – that is, in these cases the burden of proof for passing on of damages remains with the defendant.
8.4 What defences are typically available in competition litigation?
Most competition law damages claims in Germany are brought as follow-on litigation. The damages claims are based on binding infringement decisions and the claimants need not prove the infringement (see question 8.3). The defendants do not have the option of successfully challenging the infringement and must focus on other defences. Key defences include the following:
- The infringement did not cause damage; or
- The claimant passed on any damage it may have suffered to others.
In practice, claimants often have difficulties in substantiating and proving the amount of damages caused by the infringement. Despite the lowered standard of proof (see question 8.2), there is considerable uncertainty among the courts as to how much detail and evidence is required.
Another potential and frequently used defence in the context of damages claims is that the claim is outside the applicable limitation period. In that respect, the point in time at which the claimant knew or should have known of the infringement, as well as the duration of any suspension periods (see question 6.1), tend to be the focus of the litigation.
In competition litigation relating to unilateral conduct (eg, abuse of dominance), defendants can and usually do argue that the conduct in question did not constitute an abuse and, in any event, was ‘objectively justified'.
9.1 Can the proceedings be discontinued without a full trial? If so, how; and what are the implications?
The parties can settle court litigation at any time during the proceedings and are free to discontinue the entire litigation or only parts thereof. The court need not consent to any settlement. The parties can reach agreement within or outside the actual court proceedings. The law assumes that the parties have agreed to offset their respective costs against each other, unless something else has been explicitly agreed. In case of an out-of-court settlement, either the claimant should withdraw the claim or the parties should declare the litigation in court as settled. In case of either withdrawal or declaration of settlement, the court will adopt a decision on costs.
9.2 In the case of collective actions, is collective settlement possible? If so, how; and what are the implications?
German law does not allow for class actions.
10 Court proceedings
10.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?
The hearings and the taking of evidence are public. Exceptions are possible only in very specific circumstances. The written documents (eg, the statement of claim, rejoinder, briefs) cannot be accessed by third parties. Judgments will be published, but anonymised and with confidential information redacted.
10.2 How do the court proceedings unfold in your jurisdiction?
The claimant starts the proceedings by submitting a written statement of claim and paying the court fee (see question 6.2). The court serves the statement of claim on the defendant and requests the defendant to indicate (usually within two weeks) whether it intends to defend itself against the claim. In addition, the court sets a date by which the defendant should submit its response to the claim and a date for the public hearing.
As most competition litigation is relatively complex, the parties will usually exchange several rounds of briefs before the public hearing takes place. The public hearing starts with the parties setting out their arguments. Subsequently, the court may hear witnesses (see question 8.1). If, following the hearing, the court considers itself to be in a position to adopt a decision, it will do so. If not, the court may invite the parties to present additional arguments and may hold one or more additional hearings.
10.3 What is the typical timeframe for proceedings?
The length of the proceedings will depend on:
- the type of claim;
- the complexity of the case;
- the number of parties involved;
- the court dealing with the case; and
- the judge(s) to whom the case has been allocated.
A timeframe of a few months between bringing the claim and judgment would be very quick (and unusual); proceedings tend to take a year or longer. In damages claims, where both parties and courts tend to struggle with establishing the level of damages (see question 8.4), proceedings may well take two or more years.
10.4 What rules apply to the joinder of third parties?
Third parties can ‘intervene' in an ongoing dispute on behalf of the claimant or the defendant. In practice, much more relevant is that the parties to a dispute can serve notice on a third party about pending litigation and request it to intervene on behalf of the party serving notice. The notice of dispute is admissible if the party requesting intervention believes it potentially has, if it loses in the pending litigation, a claim against the third party. For example, a defendant in a damages claim which is alleged to have participated in a cartel may want to seek compensation from other cartel members if the damages claim is successful; or it may want to involve indirect purchasers to prevent both direct and indirect purchasers from claiming damages.
If the notice of dispute is admissible, the notified third party cannot object to the outcome of the pending litigation in subsequent proceedings. This applies regardless of whether the third party actually intervenes in the litigation.
Third-party interventions on behalf of the defendant increase the cost risk for the claimant. Under general procedural law, the claimant must reimburse the lawyers' costs of both the defendants and all third parties intervening on behalf of the defendants. As this was widely perceived as deterring claimants from bringing competition law (notably damage) claims, the German legislature has capped the maximum amount of the interveners' costs to be reimbursed by the claimant.
10.5 To what extent do the decisions of national or foreign competition authorities influence the court's decision?
If a claim is based on an infringement which has been established by a non-appealable decision of the European Commission, the Federal Cartel Office or a competition authority in another EU member state, the claimant need not prove the infringement. In these instances of follow-on litigation, the court is bound by the competition authority's findings and must consider the infringement to have happened as established by the competition authority. The binding effect extends to the facts established by the authority, the infringement and the participants in the infringements.
11.1 What remedies are available in competition litigation in your jurisdiction?
The available remedies are:
- payment of damages;
- rectification of the harm caused by the infringement – for example, by:
- continuing to supply the claimant;
- supplying the claimant on non-discriminatory terms; or
- granting access to an essential facility; and
- a commitment to desist from committing further infringements (see question 2.1).
11.2 Are punitive damages awarded in your jurisdiction?
Punitive damages are not an available remedy. With regard to the scope of damages that can be awarded, see question 11.3.
11.3 Will the courts consider any fines imposed by the competition authorities in deciding on the quantum of damages? What other factors will it consider in this regard?
Damages are calculated based on the difference between the claimant's (financial) position prior to the infringement and the hypothetical situation that would have existed without the infringement. Under the hypothetical scenario, ‘lost profits' – that is, profits which would have been likely under the ordinary course of business – must be taken into account for the benefit of the claimant. Fines imposed by competition authorities only affect the defendant's financial situation and have no impact on the damages calculation.
Although a lower standard of proof applies, and although the courts can estimate the amount of damages caused by the infringement (see question 8.2), the quantification of damages is in practice the most disputed issue. Different courts have suggested or adopted different, often contradictory approaches and there does not appear to be a consistent practice. For example, while some courts have suggested that a ‘well-informed' estimate by the court is possible without having to rely on expert evidence, others have taken the view that quantification is not possible without quantification studies by economic experts. The Federal Court of Justice may have clarified individual issues, but it has not provided actual guidance for the lower courts on how to deal with these often complex cases.
12.1 Can the decision of the court or tribunal be appealed? If so, on what grounds and what is the process?
Decisions of the district court can be appealed to the higher regional court which is responsible for the region where the district court is located. The appeal can be based on both factual and legal arguments.
Decisions of the higher regional court can be appealed to the Federal Court of Justice. An appeal to the Federal Court of Justice is possible if the higher regional court allows the appeal or if the Federal Court of Justice, following an application against denial of an appeal, allows the appeal to proceed. On appeal, the Federal Court of Justice will only review whether the higher regional court applied the law correctly; there is no further review of facts and/or taking of evidence.
13 Costs, fees and funding
13.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?
Litigation in Germany notably entails court fees and lawyers' fees. The fees are calculated based on the amount in dispute and a statutory fee index (see question 6.7), and depend on:
- the number of plaintiffs;
- the number of defendants; and
- whether the litigation involves one or several appeal proceedings.
For example, the fees for a first instance damages claim against one defendant of over €1 million amount to approximately €52,000 (court fee: €17,500; plaintiff's lawyer: €19,500; defendant's lawyer: €15,000). With two appeals (higher regional court and Federal Court of Justice), the fees increase to approximately €187,000. The participation of third parties can further increase the fees (see question 10.4); as can the involvement of court-appointed experts.
With respect to the lawyers' fees, the parties can (and usually do) enter into separate fee arrangements with their respective advisers. In complex competition law cases, the actual lawyers' fees are usually significantly higher than the statutory fees.
The winning party can recover the statutory fees, but not the individually agreed fees. Claimants can therefore calculate their (maximum) cost risk in advance (at least with respect to the court fees and the defendant's lawyer's fees).
13.2 Are contingency fees and similar arrangements permitted in your jurisdiction?
As a general rule, German law does not allow contingency fees. Lawyers involved in litigation must charge at least the statutory fees (see question 13.1). In exceptional circumstances – notably, if otherwise the claimant would be prevented from effectively bringing a claim – contingency fees may be permissible.
13.3 Is third-party funding permitted in your jurisdiction?
Litigation funding is permitted. Litigation funding firms are actively involved in litigation in Germany, including competition law litigation. However, the actual strategy as to how litigation funding firms are involved in the litigation has frequently been challenged – notably with respect to the model through which claimants assign their competition law claims to the litigation funding firm (see question 4.1).
14 Trends and predictions
14.1 How would you describe the current competition litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Over the last couple of years, the competition litigation landscape has been mostly shaped by follow-on litigation in relation to the ‘truck cartel'. In 2016 and 2017 the European Commission imposed severe fines on various truck manufacturers which had allegedly operated a cartel between 1997 and 2011. Following the decisions, damages claims were brought in various jurisdictions, including Germany. In the meantime, various district courts, higher regional courts and the Federal Court of Justice have adopted decisions in relation to the truck cartel litigation, dealing with a multitude of legal issues (eg, assignment to litigation funding firms, statute of limitations, standard of proof). However, as of October 2022, not a single court has adopted a decision actually quantifying the damages caused by the infringement. The truck cartel litigation clearly emphasises that quantifying the damages remains the biggest challenge for both courts and claimants under the German competition litigation regime. There have been attempts – including by the Federal Court of Justice – to find ways to facilitate damage quantification. However, recent judgments confirm that in particular lower courts continue to struggle to find a manageable approach.
In terms of legislation, there are no major reforms in the works.
15 Tips and traps
15.1 What would be your recommendations to parties facing competition litigation in your jurisdiction and what potential pitfalls would you highlight?
The upside of competition litigation in Germany is that the costs of litigating are fairly predictable and – at least compared to Anglo-Saxon jurisdictions – relatively moderate. The process is transparent and most decisions can be appealed twice. A key downside is that proceedings tend to progress slowly.
In terms of tips and traps, plaintiffs should be aware that quantifying damages – which is obviously crucial to successfully claiming damages – is a major and in large part unresolved issue. Similarly, while there are possibilities to bring collective (damages) claims, the available options appear to be more complex to handle than in some other jurisdictions. Defendants should take into account that even if they ultimately prevail, they may still end up having to bear large parts of the defence costs. Also, settlement can potentially backfire, as the joint and several liability of cartel members may allow other cartel members, despite the settlement, to seek recourse from the defendant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.