On July 8, 2020, the Dortmund Regional Court for the first time considered a group liability of all companies forming an economic unit for cartel damages. The court concluded—in line with the Court of Justice of the European Union’s (“CJEU”) recent case law—that the broader notion of an “undertaking” (in the sense of the economic unit) under EU law also applies in damages actions under national law. In Skanska, the CJEU recently held that if an entity had acquired all shares and continued the economic activity of an entity involved in the cartel, the acquiring entity will also be liable for civil damages caused by the cartel. In the past, German courts have not adhered to this reasoning and rejected the liability of entities belonging to the same “undertaking” within the meaning under EU law. Under the German principle of personal responsibility, an entity is only liable for its individual conduct and, in principle, German law does not allow for the allocation of liability from another entity’s infringement.
The Dortmund Regional Court—although only in an obiter dictum—noted that the EU “undertaking” doctrine also applies in competition damages actions and thus argued in favor of a general group lability for entities that form part of a single economic entity. Even though the court ultimately dismissed the case, it considered the question sufficiently important to take a position on group liability in cartel damages cases.