Under German law, a plaintiff does not only have to prove the unlawful behaviour of a liable party (ie, in the case of cartel damages, a competition law infringement such as a cartel) and any damage caused by this behaviour. The German law on cartel damages also requires a plaintiff to be "affected" by unlawful behaviour (Sections 33(1), 33(3) and 33a(1) of the Act Against Restraints of Competition).
This requirement of being affected by unlawful behaviour to claim cartel damages is found in no other German tort laws. However, recent case law shows that, although it is a somewhat common understanding of German courts that a plaintiff claiming cartel damages must have been affected, opinions on the interpretation of this requirement differ from court to court. In recent years there have been some fundamental decisions on the interpretation and level of proof required from plaintiffs, including those of the Federal Court of Justice (Decision KZR 26/17 of 11 December 2018) and the Dusseldorf Higher Regional Court (VI-U (Kart) 18/17 of 23 January 2019) in relation to quota cartels.
A recent impulse for the interpretation of this requirement of being affected by unlawful behaviour came from an EU law perspective. In December 2019 the European Court of Justice (ECJ) held that any party can claim damages if there is a causal connection between the damages and a cartel pursuant to Article 101 of the Treaty on the Functioning of the European Union (TFEU) (Otis, C-435/18).
The ECJ underlined that the right to claim compensation for damages caused by a cartel is provided directly by Article 101 of the TFEU. This position correlates with the court's earlier decisions in (for example) Courage and Crehan (C-453/99), Manfredi (C-295/04) and Skanska (C-724/17). Under EU law, no further requirements exist as regards a specific causal connection with the objective under Article 101 of the TFEU.
The plaintiff in the case at hand complained that it had suffered losses caused by a cartel, although it was not active as a supplier or customer on the market affected by the cartel. Rather, it complained that it suffered losses as a municipality for granting too high subsidies for construction projects, which were more expensive because of an elevator cartel. The ECJ largely followed the plaintiff's line of reasoning, but referred to a national court the final decision on whether the plaintiff had suffered such loss and whether the causal link between the damage and the cartel had been proved.
According to the ECJ, damage claims can be justified even if injured persons are not active on the market affected by a cartel – parties need only prove a causal connection between a cartel and the damages. The ECJ again underlined in its ruling that the national laws of EU member states cannot oppose this, because a plaintiff's right to claim damages follows directly from Article 101 of the TFEU.
As a result, significantly more plaintiffs could claim damages for antitrust infringements in Germany in the future. So far, direct customers of cartel members or customers of direct customers have typically made such claims. More claims of indirect customers are expected following an amendment of the law. The ECJ has expanded the potential for plaintiffs which are not active on markets affected by a cartel to claim damages. According to Section 33(3) of the Act Against Restraints of Competition, "competitors and other market participants" affected by infringements are "affected" in the sense of Section 33(3) of the Act Against Restraints of Competition. The broad wording of the Act Against Restraints of Competition could still be too restrictive in light of this decision and will therefore have to be amended or reinterpreted.
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