Prima Facie Evidence In Cartel Damages Litigation Landmark Decision By The German Federal Court Of Justice In The Rail Cartel Case

Author:Mr Christian Ritz, LL.M. (USYD) and Carolin Marx
Profession:Hogan Lovells

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...

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