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

The German Federal Court of Justice’s (in German ‘Bundesgerichtshof’, short ‘FCJ’) last ruling 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.

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 FCJ’s judgement raises the question of how claimants will have to present evidence in court regarding causation in the years to come – and what defendants might be able to counter such evidence. On the face of it, it seems that by waving prima facie evidence goodbye and merely relying on the ‘weaker’ factual presumption, Germany’s highest court raised the bar for claimants – at least for the time being and until the rebuttable presumption of sec 33a (2) GWB kicks in.

All in all it seems that the FCJ’s judgement boils down to a very simple and certainly not revolutionary truth: the party whose submissions and evidence are most deeply rooted in the facts will have the best chances to use the FCJ’s judgement to their advantage.

Please click here to read our latest publication in the Journal of European Competition Law & Practice.


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