On 12 July 2016, the German Federal Supreme Court (Bundesgerichtshof) clarified the binding effect of decisions of the Federal Cartel Office (FCO) concerning antitrust violations following private competition law actions. In the case at hand, several lottery companies decided in an anticompetitive manner not to accept stakes by commercial agents. Under German and European competition law the lottery companies’ conduct constitutes an anti-competitive agreement, an illegal call for a boycott and an abuse of a dominant position.

Generally and not only in Germany, private law enforcement is of increasing importance in combatting anti-competitive behaviour. Next to considerable fines imposed by the FCO, companies involved in a cartel are also subject to damage claims by market participants affected by that cartel.

To support this, Sec. 33 (4) of the German Act against Restraints of Competition (GWB) states that where damages are claimed for an infringement of a provision of the GWB or Articles 101, 102 of the TFEU, the Court shall be bound by a finding that an infringement has occurred, to the extent that such a finding was made in a final and non-appealable decision by the Competition Authority, the European Commission or court acting as such – in another Member State of the EU. The same applies to such findings in final and non-appealable judgments on appeals against decisions.

In his abovementioned decision, the Bundesgerichtshof clarified the positive scope of Sec. 33 (4) GWB, but also ruled on which circumstances are not subject to the binding effect of the provision and therefore subject to possible follow-on processes.

According to the decision, a finding under Sec. 33 (4) GWB binds the court of a follow-on process regarding its tenor and the principle legal and factual grounds of the conclusion. Therefore, with a regulator’s finding of infringement, it is set if and to what extent antitrust violations have taken place.

Nevertheless, also against the background of Sec. 33 (4) GWB, the court of the follow-on process is not bound regarding if, and to what amount, the cartel has caused damages and has to consider the issues itself.

Insofar the burden of proof lies with the claimant, although it is presumed that the profit achieved by the cartel is evidence of damage suffered by the victims of the behaviour. The claimant still has to present concrete facts based on which the court can determine possible damages (Sec. 287 Civil Procedural Code).

Legal practice shows that this task constitutes a major obstacle for the claimant, as individual damages caused by cartels are difficult to calculate and even more difficult to substantiate. Here lies a source of significant legal uncertainty, which frequently raises problems regarding the prospects of success of an action.

On the other hand, the decision of the Bundesgerichtshof allows defendants to provide counterevidence concerning the alleged damages and therefore enables them to at least diminish the amount of possible compensation. In the case at hand, the Bundesgerichtshof found that the Higher Regional Court of Düsseldorf had insufficiently taken into account the duration of the underlying antitrust violation, the generally declining revenues in the market through the duration and special market conditions in the lottery market at that time, which means that even without the cartel agreement the lottery companies would not have entered into business relations with the suing lottery agents.