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