Another sensational decision of the Regional Court of Dortmund in the rail cartel
After it affirmed in a decision of 8 July 2020 (Az.: 8 O 75/19 Kart) a liability of sister companies for cartel violations and dealt with questions of active legitimation in its decision of 9 September 2020 (Az.: 8 O 42/18 Kart), the next sensational ruling of the Regional Court of Dortmund (ruling of 30 September 2020, Az.: 8 O 115/14 Kart) now comes to the question of the amount of damages in cartel damage compensation proceedings. And the path that the Regional Court of Dortmund has taken in this respect is remarkable and certainly forward-looking.
Subject of the proceedings: Cartel damages due to rail cartel
In the proceedings, the Regional Court of Dortmund had to deal with a claim for damages by a public corporation against the members of the rail cartel. In addition to questions regarding the claim's cartel-involvement, active legitimation, and the permissibility of passing on defence, the Regional Court of Dortmund also had to deal with questions regarding the cartel damage itself. Here, the Regional Court of Dortmund essentially had to clarify three questions:
- Has damage been incurred?
- How is the damage incurred calculated?
- How high is the damage incurred?
Did the rail cartel cause damage?
The question whether the plaintiff has suffered damage due to the rail cartel is addressed by the Regional Court of Dortmund in paragraphs 85 to 126 of the decision. With recourse to the binding effect of the decision of the Federal Cartel Office according to § 33 (4) GWB a.F. and with recourse to an actual presumption, it was clear to the Regional Court of Dortmund that the committed infringement of the cartelists had led to damages for the plaintiff. The objections of the defendants were taken up and evaluated individually by the Regional Court of Dortmund, but were not able to overturn the actual presumption.
How is the cartel damage calculated?
After the Regional Court of Dortmund came to the conclusion that the rail cartel had led to cartel damages for the plaintiff, it had to clarify the question of how the cartel damages are to be calculated. It is noteworthy that the Regional Court of Dortmund considers that in the case to be decided, the way has been opened for the court to estimate the damage in accordance with § 287 ZPO. It explains this in paragraph 133:
"In this respect, the judge has rather the option to assess, according to his dutiful discretion, whether according to § 287 ZPO at least the estimation of a minimum amount is possible; such an estimation is only excluded if it would be completely out of the air and therefore arbitrary due to lack of any concrete evidence (BGH, U.v. 17.12.2014, VIII ZR 88/13, NJW 2015, 934 ff. mwN; Kühnen, ibid.)"
A prerequisite for an estimation by the court, however, is that "the complete clarification of all circumstances relevant for this [the calculation of damages, the author] is connected with difficulties which are out of proportion to the significance of the disputed part of the claim" (paragraph 132).
In the following, the court explains which methods of calculation can be considered in the case to be decided - and for what reasons they are unsuitable for the calculation. In detail, the court deals with the comparative market analysis, the cost-based comparison based on pricing factors, and the market-internal comparative analysis. In addition to the unsuitability for the present case, the court also explicitly mentions the costs for experts and appraisers associated with such calculations, which would as well have to be included in the decision whether the court may estimate the damage.
What is the amount of the antitrust damages incurred?
After the Regional Court of Dortmund came to the conclusion that, due to the lack of suitable alternatives, it was able to freely estimate the damages incurred, it turned its attention to the concrete effects of the case. In order to determine the amount of damages, the Regional Court of Dortmund is of the opinion that "the nature, content and scope of the cartel agreement in dispute and the details of its implementation could provide sufficient starting points for estimating the cartel-related price mark-up, coupled with an overall view of other aspects of the facts" (paragraph 143).
In the following assessment of the facts of the case (in paragraphs 146 to 155 of the decision), the Regional Court also considered the defendant's objections and, where justified, took them into account accordingly. After all this, it came to the conclusion that a minimum damage in the amount of a 15 % cartel-related price mark-up had been incurred.
In assessing the value, the Regional Court of Dortmund was guided not only by the circumstances of the specific individual case (in particular an agreement by the cartel members to pay a 15 % contractual penalty for violation of the rules of the cartel), but also by studies on the average amount of damages for cartel violations. The court emphasizes in paragraphs 164f. that the minimum damage of 15% is "slightly below the average of the medians of known studies (...) and therefore does not disadvantage the defendant side". It also states that "the value is exactly on the median of other cartel premiums found in decisions of European courts".
Conclusion & Outlook
With the decision to allow the court to estimate the damage caused by the cartel, the Regional Court of Dortmund has considerably strengthened the rights of plaintiffs. The few restrictions it makes in the context of this decision will lose importance with regard to the explicit regulation of § 33a paragraph 2 sentence 1 GWB. Because, differently than in the case at hand which had to be judged in accordance with an older version of the GWB, § 33a exp. 2 sentence 1 GWB states that the measurement of the cartel damage can be accomplished in accordance with § 287 ZPO - thus the damage can be measured by a free estimate of the court.
All this should make it much easier for cartel victims to enforce their claims for damages in future. Under certain circumstances, it may not even be necessary to calculate the damages themselves, provided that the conditions set out by the Regional Court of Dortmund are met.
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