By: Gerhard Klumpe (D’Kart)
This article is part of the D’Kart Spotlights: AGENDA 2025, in which experts from academia and practice comment on aspects of the Competition Policy Agenda presented by the Federal Ministry of Economic Affairs and Climate Action (BMWK). The contributions already published can be found here.
The competition policy agenda of the Federal Ministry for Economic Affairs and Climate Action (BMWK) up to 2025, in its ten-point paper “for sustainable competition as a pillar of the socio-ecological market economy”, treats the aspect of antitrust damages actions, which is highly relevant in current court practice, rather shabbily. Only in the explanation to item 9 is a reform of the Cartel Damages Directive 2014/104/EUmentioned.
Cartel damages were already the subject of only minor corrections in the 10th amendment of the Act against Restraints of Competition (GWB), prompted by the case law handed down until then (see (in german) the overview by Klumpe in Bien/Käseberg/Klumpe/Körber/Ost, Die 10. GWB-Novelle, Überblick vor Kapitel 4, Rn. 2). This, like the Commission’s report of 14 December 2020, which considered an evaluation to be premature, inter alia, due to a lack of case material, should not obscure the fact that the need for further reforms is already openly apparent.
This is particularly evident with regard to the information and disclosure claims, which were introduced as one of the core points of the 9th GWB amendment in the course of the implementation of the Damages Directive in German law. The introduction of these claims, sometimes referred to as “discovery light”, which were previously unknown in this form to Germany and most continental European legal systems, was intended to solve the well-known problem of information asymmetry between the parties involved in cartel damages proceedings. In particular, potential plaintiffs were to be given an instrument to meet their burden of presentation and proof [Darlegungs- und Beweislast]. However, the performance so far has remained extremely limited, although many of the cartel damages actions currently pending before the courts would fall within the time frame of application drawn by § 186 (4) GWB.
One of the reasons for this is that the concept of disclosure claims in many respects fails to meet the needs of potential injured parties and is hardly usable in practice due to its specific design. In other words: The disclosure claims are proving to be a very blunt sword that is also difficult to wield…
Featured News
CVS Health Explores Potential Breakup Amid Investor Pressure: Report
Oct 3, 2024 by
CPI
DirecTV Acquires Dish TV, Creating 20 Million-Subscriber Powerhouse
Oct 3, 2024 by
CPI
South Korea Fines Kakao Mobility $54.8 Million for Anti-Competitive Practices
Oct 3, 2024 by
CPI
Google Offers Settlement in India’s Antitrust Case Regarding Smart TVs
Oct 3, 2024 by
CPI
Attorney Challenges NCAA’s $2.78 Billion Settlement in Landmark Antitrust Cases
Oct 3, 2024 by
nhoch@pymnts.com
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh