Volume 30 (2007) / Issue 4
Christian Andrelang, 'Damages for the Infringement of Art. 81 EC by Cartel Agreements According to sec. 33(3) GWB: The Changes of Law Concerning “Protective Law” Requirement and the “Passing-On” Defence' (2007) 30 World Competition, Issue 4, pp. 573–593
On 1 July 2005, the German legislator amended 33 GWB [Act against Restrictions of Competition] and introduced a specific statutory basis for the private enforcement of European Competition Law.
This article focuses on damages claims for the infringement of Art. 81 EC by cartel agreements in German courts and highlights the legal changes to the eligibility to damages. Previously, German courts were forced to utilize general tort law when awarding damages for the infringements of Art. 81 EC. However, some German courts were very reluctant to award damages. Only a person who was the direct target of cartel was considered to be eligible for damages. The article establishes that this jurisdiction, to which some courts might still resort when judging on damages claims for cartel agreements prior to 1 July 2005, is inconsistent with European Law principles and irreconcilable with the ECJ’s decision in Courage Ltd. v. Crehan.
Furthermore, the article addresses the statutory exclusion of the “passing on“ defence. Cartel members are now prevented from arguing that applicants passed higher prices on to their customers and did not suffer any economic loss. Yet, as far as cartel-inflicted prices of processed goods are concerned the exclusion of the “passing on“ defence can prove to be irrelevant depending on the method of assessing damages.
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