Antitrust Damages and Litigation

Antitrust damages in Germany: an overview

Antitrust damages claims in Germany allow anyone harmed by a cartel or another infringement of competition law to recover compensation. The legal basis is § 33a(1) of the Act against Restraints of Competition (GWB): whoever intentionally or negligently commits an infringement of German or EU competition law must compensate the resulting damage (§ 33a GWB).

The rules implement the EU Damages Directive and give claimants significant procedural advantages: authority decisions are binding on the civil courts, cartels are presumed to cause harm, claimants can demand disclosure of evidence, and limitation periods are long. Germany has become one of the main jurisdictions for cartel damages litigation in Europe, with specialised chambers at the regional courts and an established body of case law of the Federal Court of Justice.

Most claims are follow-on actions, brought after the Federal Cartel Office or the European Commission has found an infringement, typically a price or quota cartel. Stand-alone actions, where the claimant must prove the infringement itself without the benefit of a binding decision, are rarer but increasing, particularly in abuse of dominance cases involving digital platforms. Claimants include public bodies and private companies alike: direct purchasers, indirect purchasers further down the supply chain, suppliers harmed by buyer cartels and competitors excluded by abusive conduct.

This page explains the requirements of a claim, the binding effect of decisions and the presumption of harm, the quantification of damage and the passing-on defence, disclosure, limitation, claim vehicles and litigation funding, and defence strategy. It is written for in-house counsel and finance teams of potential claimants and for companies facing claims. For the authority side, see cartel investigations.

Requirements, binding effect and presumption of harm

A claimant must establish an infringement of competition law, fault, damage and causation. In follow-on cases, the infringement is established by the authority's decision: a civil court hearing a damages claim is bound by the finding of an infringement in a final decision of the Federal Cartel Office, the European Commission or a competition authority or court of another member state (§ 33b GWB). The binding effect covers the infringement as described in the decision, including its participants, duration and scope, but not the damage. Fault is generally inferred from the infringement.

For cartels, the law presumes that the cartel caused harm (§ 33a(2) GWB). The presumption relates to the existence of harm, not its amount; the claimant must still show that it was affected by the cartel and must quantify the damage, which the court can estimate under § 287 of the Code of Civil Procedure. The Federal Court of Justice has also developed factual presumptions that purchases from cartel members during the cartel period were affected, which ease the claimant's burden. Infringers can rebut the presumptions, for example by showing that their prices were not affected.

Courts and jurisdiction

Regional courts have exclusive jurisdiction for civil disputes involving the application of German or EU competition law, regardless of the amount in dispute (§ 87 GWB), and the federal states have concentrated these cases at a limited number of specialised regional courts with experienced chambers. Appeals go to the Higher Regional Courts and, on points of law, to the cartel senate of the Federal Court of Justice, which has shaped antitrust damages law in a series of decisions on affectedness, quantification, passing-on and claim vehicles.

Within the EU, claimants can often choose to sue in Germany where one of the defendants is domiciled here and bring claims against the other cartel members as co-defendants under the Brussels Ia Regulation, which makes German courts a frequent forum for European cartel claims.

Abuse of dominance and platform claims

Antitrust damages are not limited to cartels. Customers and competitors can claim damages for abuses of dominance, such as exclusionary rebates, refusals to supply or exploitative pricing, and for infringements of the EU Digital Markets Act, which the GWB expressly brings within the damages regime. These claims are usually stand-alone or follow decisions that do not quantify harm, and they require more complex proof, because the presumption of harm applies only to cartels.

Quantifying antitrust damages and passing-on

The main component of damage is the overcharge: the difference between the price actually paid and the price that would have been paid without the cartel. Quantifying it requires an economic counterfactual, usually based on comparisons with periods before or after the cartel, with other markets or with other products, using econometric analysis. Courts in Germany regularly appoint court experts to assess the parties' economic reports, which makes the process lengthy and expensive. Interest accrues from the time the damage occurred, which can substantially increase the amount in long-running cartels and can exceed the original overcharge where the cartel ended many years before judgment.

If the direct purchaser passed the overcharge on to its own customers, its damage is reduced accordingly, and the indirect purchasers have their own claims (§ 33c GWB). For indirect purchasers, there is a rebuttable presumption that the overcharge was passed on to them under specified conditions. The infringer bears the burden of proving passing-on as a defence against a direct purchaser. Courts recognise that passing-on often has volume effects, so a purchaser that passed on price increases may still have suffered lost profits. The interplay between claims at different levels of the supply chain is one of the most complex aspects of antitrust damages in Germany.

Interest and costs

Interest on antitrust damages runs from the time the damage occurred, at a statutory rate above the base rate, and in cartels that lasted many years and were discovered late, interest can account for a large part of the total claim. Court fees and lawyers' fees in Germany are calculated on the value in dispute under statutory scales, and the losing party reimburses the winner's statutory fees and court costs. Expert costs can be considerable. Third-party funders, who finance claims in exchange for a share of the proceeds, and after-the-event insurance are available for larger claims.

Contractual protection for purchasers

Large purchasers increasingly include cartel damages clauses in their supply contracts, providing for liquidated damages of a percentage of the contract value if the supplier participated in a cartel affecting the contract, without prejudice to proof of higher damage. The Federal Court of Justice has examined such clauses under the law on standard terms, and they can be effective if appropriately drafted. Purchasers should also check whether supply contracts contain arbitration or jurisdiction clauses that might apply to damages claims, and whether limitation provisions in the contract could affect claims.

Disclosure and evidence

German civil procedure traditionally offers limited disclosure, but competition damages claims are an exception. Anyone in possession of evidence necessary to bring a damages claim must disclose it to a person who plausibly shows that it has such a claim, subject to proportionality and the protection of confidential information (§ 33g GWB). The same right is available to defendants who need evidence to defend themselves, for example on passing-on. Leniency statements and settlement submissions are protected and cannot be disclosed. Courts can take measures to protect business secrets, including confidentiality orders, and access to the authority's file can be requested through the court.

Disclosure claims can be asserted in separate proceedings or within the damages action, and they often lead to procedural disputes about the scope of documents and the protection of third parties' interests. In practice, the authority's decision, published versions of it and documents from the authority's file are the main sources of evidence, supplemented by the claimant's own data and economic analysis. Defendants, for their part, often need data from claimants on their own resale prices and margins to establish passing-on, and courts have recognised that disclosure obligations apply in both directions. Early agreement on a confidentiality regime and on the format of data exchange can save months of procedural argument.

Limitation and joint and several liability

Claims become time-barred five years after the end of the year in which the claim arose, the claimant knew or should have known of the circumstances giving rise to the claim and the identity of the infringer, and the infringement ended (§ 33h(1), (2) GWB).

Regardless of knowledge, claims become time-barred after ten years from when the claim arose and the infringement ended, and in any event after 30 years from the infringement (§ 33h(3), (4) GWB). Limitation is suspended while a competition authority investigates the infringement and for a period after the final decision. Transitional questions for older cartels, which may be subject to earlier rules, have been addressed in case law and must be analysed carefully.

Cartel members are jointly and severally liable for the entire damage caused by the cartel, so a claimant can sue one member for all its losses, including purchases from other cartel members. The defendant can then seek contribution from the other members. Exceptions apply to immunity recipients under the leniency programme and to small and medium-sized enterprises under specific conditions, which are liable only to their own direct and indirect purchasers in principle. Settlements with individual cartel members reduce the claim against the others by the settling member's share.

Contribution among cartel members

A cartel member that has paid more than its share of the damage can claim contribution from the other members. The shares are determined by the relative responsibility of the members, in particular their market shares and roles in the cartel, which leads to complex disputes among co-defendants. Settlements with claimants must be structured carefully so that the settling member is protected against contribution claims and the remaining defendants' liability is reduced appropriately. Defendants should notify co-cartelists of claims in good time to preserve contribution rights and avoid limitation issues.

Arbitration and cross-border issues

Arbitration clauses in supply contracts can cover antitrust damages claims if they are broad enough, and the Court of Justice of the European Union has held that jurisdiction clauses referring to disputes arising from the contract do not necessarily cover cartel claims unless they expressly do so. Claims involving several jurisdictions raise questions of applicable law, which for claims arising after the Rome II Regulation took effect generally follows the market affected. German courts apply foreign law where necessary, often with expert opinions.

Claim vehicles, funding and strategy

Claims for antitrust damages in Germany are often bundled. Assignment models, in which many purchasers assign their claims to a claim vehicle that sues in its own name with third-party funding, have been tested in the courts, and the Federal Court of Justice has accepted such models under the Legal Services Act in principle, subject to conditions. Collective redress under the Consumer Rights Enforcement Act is available for consumer claims through qualified entities; see our page on collective actions. Large purchasers frequently sue individually or in groups with coordinated counsel and economic experts.

Defendants focus on challenging affectedness, the quantification of the overcharge, passing-on, limitation and the admissibility of claim vehicles. They must also manage contribution claims among cartel members and coordinate their defence with the regulatory proceedings, because positions taken before the authority can affect the civil case. For both sides, settlements are common, often after the court has given an indication or appointed an expert. Mediation and settlement negotiations with several cartel members at once can resolve large portfolios of claims more efficiently than litigation through all instances. Our page on commercial litigation explains German civil procedure more generally.

• Claimants: secure data early and track limitation periods for each cartel.
• Assess whether to sue individually, in groups or through a claim vehicle.
• Defendants: coordinate regulatory and civil strategy from the start.
• Consider settlement windows after court indications or expert reports.
• Review supply contracts for cartel damages clauses and jurisdiction clauses.

How TRW & Co helps

We advise claimants and defendants on antitrust damages in Germany. For companies harmed by cartels or abusive conduct, we assess claims, secure evidence and data, work with economists on quantification, assert disclosure claims and bring actions before the specialised regional courts. For companies facing claims, we develop defence strategies on affectedness, quantum, passing-on and limitation, manage contribution claims among co-defendants and negotiate settlements. We coordinate damages litigation with regulatory proceedings and compliance measures. To discuss a potential claim or defence, please contact us.