On May 12, 2020, the Frankfurt am Main Court of Appeals found drugstore chain Anton Schlecker e.K. i.I.’s (“Schlecker”) insolvency estate was not entitled to cartel follow-on damages.[1] In the Court of Appeals’ view, Arndt Geiwitz, Schlecker’s insolvency receiver acting on behalf of the estate, did not prove the estate incurred damages as a result of the cartel’s information exchange.

Geiwitz had claimed damages of €212 million plus interest from several drugstore product manufacturers involved in an anti-competitive information exchange regarding personal care products, detergents, and cleansers. In the first instance, the Frankfurt am Main District Court dismissed Geiwitz’s claims based on a lack of standing and the statute of limitations.[2]

The Frankfurt am Main Court of Appeals ruled that Geiwitz did not prove to the requisite standard that Schlecker had suffered any damage as a consequence of the anti-competitive information exchange. Geiwitz cannot rely on prima facie evidence in this regard. Given that the FCJ recently held that at least in relation to quota fixing and customer allocation cartels, there is no prima facie evidence that prices were higher than they would have been without the cartel[3], the Court of Appeals held that this must apply all the more in relation to a non-hard core cartel infringement in the form of a mere information exchange. The Frankfurt am Main Court of Appeals left open whether for information exchanges, generally a factual presumption of damage could apply. Rather, in the case at hand, there were numerous indications that the information exchange did not have a price-increasing effect (including the market conditions, the practice and subject matter of the information exchange and the legal objectives of the working group, the lack of cartel discipline, and Schlecker’s strong countervailing negotiation power).

Geiwitz has lodged an appeal against the Frankfurt am Main Court of Appeals’ decision with the FCJ.

[1]      Frankfurt am Main Court of Appeals decision (11 U 98/18) of May 12, 2020, only available in German here. See the Press Release, May 20, 2020, only available in German here.

[2]      Frankfurt am Main District Court decision (2-03 O 239/16) of August 10, 2018, only available in German here.

[3]      See more on this topic in the German Competition Law Newsletter March – April 2019, p. 3 et seq., available in English here.