Prima Facie Evidence in Cartel Damages Litigation - Landmark Decision by the German Federal Court of Justice in the Rail Cartel Case

Click here to read the full article online

The German Federal Court of Justice’s (in German ‘Bundesgerichtshof’, short ‘FCJ’) last ruling1 on a competition law case of 2018 attracted a lot of attention and some surprise amongst practitioners. On 11 December 2018, the FCJ’s Cartel Panel handed down a landmark decision regarding private competition law enforcement. The decision dealt with the applicability of the principle of prima facie evidence (in German ‘Anscheinsbeweis’) regarding causation of damages. The FCJ reversed a decision of the Higher Regional Court (‘HRC’) Karlsruhe2 on legal grounds and sided with the defendant on the issue of causation. The HRC Karlsruhe, acting as Court of Appeal, had upheld the decision of the lower court in Mannheim. Both lower courts had applied the principle of prima facie evidence in favour of the claimant. It is the first time that Germany’s highest civil court dealt in depth with the principle of prima facie evidence in the context of cartel damages litigation. The lower courts had previously established a long-standing regime of applying said principle – it will remain to be seen how they will approach these cases in the future. The judgment also covers a range of further hot topics in cartel damages cases, such as the necessary standing for declaratory actions, limitation periods, calculation of interest and questions of contributory negligence – which are not dealt with for the purposes of this focused case review.