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Damages for the Infringement of Art. 81 EC by Cartel Agreements in German Courts: Eligibility, the “Protective Law” Requirement

2008 / Vol. 20, No. 2, (68)
Digital Edition

Damages for the Infringement of Art. 81 EC
by Cartel Agreements in German Courts:           
Eligibility, the “Protective Law” Requirement
and the “Passing On” Defence

Christian Andrelang

Associate in the law firm Heisse Kursawe Eversheds in Munich, Germany

Emmanuel Maganaris

Director of Research and Programmes, European Public Law Center, Senior Lecturer, Division of Law, Glasgow Caledonian University, UK


Private enforcement of EC Competition law has virtually been non-existent in Ger­many. There is more than one reasons for that. The former monopoly of the Com­mis­sion for the application of Art. 81 (3) EC gave national courts only a marginal role in the enforcement of Art. 81 EC. Litigants often faced difficulties in proving economic loss and causation between financial damage and an infringement of Art. 81 EC. Furthermore, until the 1st of July 2005, no statutory remedy for dam­ages for infringements of Art. 81 EC had been available in the German legal sys­tem. Ger­man tort law, which was the legal instrument utilised for that purpose, proved to be an inadequate legal basis for the award of damages and was at the same time sub­jected to an overly narrow interpretation by German courts. The changes effected in the enforcement of Arts. 81 and 82 EC as a result of the intro­duction of Reg. 1/2003, motivated the German legislator to introduce sec. 33 GWB as the new le­gal statutory basis for damages for the infringement of Arts. 81 and 82 EC. This ar­ticle deals with the changes in the German legal system in relation to the private en­forcement of Art. 81 EC before German courts and specifically the is­sue of the award of damages as a result of infringement of the latter provision. It discusses the weaknesses of the old regime and comments on whether the newly in­troduced changes, concerning the eligibility to damages and the relevance of the “passing on” defence for the assessment of damages, could be considered an im­provement in terms of efficiency.

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