AGENDA 2025: THE BLUNT SWORD

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…

CONTINUE READING…