On February 10, 2021, the FCJ declared liquidated damages clauses for cartel damages of up to 15% admissible in its sixth ruling in connection with the so-called “rail cartel”.
In the case at hand, the plaintiff was a public transport company in Berlin that had purchased railway equipment from members of the rail cartel. The purchase was subject to the buyer’s general terms and conditions, which contained a clause obligating the supplier to pay 5% of the purchase price as liquidated damages if it was found that the seller had engaged in anti-competitive behavior.
The FCJ found this liquidated damages clause to be valid as it did not unreasonably disadvantage the supplier. The clause provided for an amount which, in view of the hypothetical “typically to be expected” market price, “makes under- compensation and over-compensation of the damage appear equally likely”. According to the FCJ, the “general findings of empirical economic research” available at the time of the conclusion of the contract can be used to determine this typical damage. In contrast, the proof of an average damage typical for the industry was dispensable, at least as long as no empirical findings on such industry-typical damages are available. In the absence of such findings, the FCJ approved a clause of 5% in the specific case and indicated in an obiter dictum that it was also prepared to accept clauses of up to 1.