On September 30, 2020, the Dortmund Regional Court issued a ruling in a follow-on damages action related to the so-called Rail Cartel (“Schienenkartell”). It is one of the still very few cartel follow-on damages cases in which a German court awarded damages.
While the 2017 (9th) Amendment of the ARC introduced a presumption of liability for companies engaged in certain anticompetitive agreements or conduct, the legislature refrained from setting a presumption as to the (minimum) amount of damages. Courts have been reluctant to take matters into their own hands and have, in the very few cases that have reached the stage at which damages are calculated to date, generally relied on economic experts for the overcharge calculation.
This time, however, the Dortmund Regional Court noted that the legislature as well as the FCJ had encouraged the judiciary to show a “courage to estimate” damages. The Dortmund Regional Court, which is known for being rather plaintiff-friendly in follow-on damages cases, indeed considered itself in a position to estimate the amount of damages on its own. A signification element that prompted the Court to estimate the damages itself was the rather low amount of the asserted damages of approx. €62,000. In such a case, the Court found commissioning economic experts to determine the exact amount of the damages disproportionate in light of the substantial costs of such opinions, which were noted to regularly be at least in the low six figures.
The Dortmund Regional Court estimated the damages in the present case to amount to a 15% overcharge, taking into account the duration of the cartel, its market coverage, the degree of its organization, and the cartel discipline of its participants. An additional important factor was a clause in the plaintiff’s general terms and conditions that governed the contractual relationship between plaintiff and defendant and foresaw a contractual penalty of 15% for the sale of cartelized products. The Court noted that other studies on average cartel-related price overcharges as well as decisions of other European courts would confirm the adequacy of a 15% overcharge.
The decision marks a significant—yet not uncontroversial—step in the further facilitation of damage claims actions. To date, the quantification of the incurred damages poses significant challenges for plaintiffs and requires substantial time and resources—with each party as well as the court commissioning economic experts (often each with a proprietary calculation method and, thus, different results). It remains to be seen whether this approach will be taken in future cases—particularly where the potential damages are higher and there is no contractual penalty clause. An appeal against the decision has been lodged with the Dortmund Higher Regional Court.
 See Schienenkartell II (KZR 24/17), FCJ decision of January 28, 2020, only available in German here. For more details, see our German Competition Law Newsletter February – April 2020, pp. 3-4, available here, as well as our German Competition Law Newsletter March – April 2019, pp. 3-5, available here.