カルテルにおける損害賠償額の推定（ドイツ国内審）

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

UPDATE on #cartel damages claims in Germany 🇩🇪: Is a court in Germany revolutionising follow-on damages actions?

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

On 30 Sep. 2020, the regional court in Dortmund handed down a judgment concerning the "rails cartel". pic.twitter.com/OclhNay4ie

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Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

Background: In 2013, the German competition authority @Kartellamt fined a total of 8 firms for participating in an illegal cartel concerning sales of rails to rail companies and public transport authorities.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

One such public transport authority sued several cartelist before the regional court in Dortmund, which is competent to hear antitrust matters in the area.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

The claimant had purchased rails from the cartelists for its railroad system when the cartel was active and claimed that prices had been excessive because of the cartel.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

One of the main obstacles in these cases is the calculation of the cartel overcharge. By how much (if at all) have purchasers been overcharged? According to general principles, the claimant must prove the quantum of damages and thus the cartel overcharge.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

There are hundreds of civil litigation cases pending where the question of cartel overcharges is hotly disputed between claimants and defendants.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

In the case at hand, the claimant presented to the court an economic expert report to prove the cartel surcharge - and the defendants replied with their own expert report to show that there was no overcharge.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

The solution applied by the court is novel and stunning: Based on recent case-law from Germany's Supreme Court, it finds that the cartel must have resulted in damages because this is what cartels generally do.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

After this finding, the court proceeds to estimate the amount of damages.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

In this regard, it finds that none of the established methods for calculating the quantum of damages appear suitable in the case at hand – and, in any event, their cost are not worth it. Therefore, it needs to estimate the damages itself.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

"The court must make use of the possibility of estimating the amount of damages according to its own free conviction if the complete clarification of all relevant circumstances is associated with difficulties that are disproportionate to the disputed claim." pic.twitter.com/fFmI4qkUsW

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Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

What did the court do? It looked at the general purchasing conditions used by the claimant that impose a contractual penalty of 15% on a seller who is found out to be a member of a cartel.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

The court's reasoning is: If a cartelist freely accepts such a contractual penalty of 15%, the cartel surcharge must be at least that high.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

"The assumption of 15% is based on an objective value, since the contracting party involved in the cartel has, with the intention of violating antitrust law during the transaction and possibly forfeiting the agreed contractual penalty of 15% …

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

… in the event of discovery, exposed itself to the risk of having to pay damages in this amount." pic.twitter.com/0cWNM8MNaW

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Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

There you have it: The court has calculated the amount of damages in one paragraph without the need for expensive economic export reports! / END

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

@ruppe_p Great report! Pity I did not see this before writing my own thread.

Till Steinvorth 🇪🇺 (@antitrust@eupolicy.social) @TSteinvorth

Deutsche Bahn and ThyssenKrupp have reached an out-of-court settlement in their antitrust damages dispute regarding the rail cartel (where TK had been fined by @Kartellamt for cartelising the sale of rails) handelsblatt.com/unternehmen/in…