Dietze, Philipp von; Brödermann, Eckart --- "Germany" [2010] ELECD 758; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 18

Section Title: Germany

Author(s): Dietze, Philipp von; Brödermann, Eckart

Number of pages: 16

Extract:

18 Germany
Philipp von Dietze and Eckart Brödermann1


Introduction
Private enforcement of antitrust law is both a long-standing practice and a new phe-
nomenon in German case law. The reason for such an astonishing statement is simple.
Antitrust law in Germany covers three areas: prohibition of cartels, prohibition of the
abuse of a dominant market position and merger control. In the past, German courts
have had many opportunities to deal with private actions of companies claiming that
other companies have abused their dominant position by, for example, refusing to
supply, refusing access to an essential facility or predatory pricing, while actions against
members of cartels have been very rare. The public has seen several such actions in
German courts: against the vitamin cartel (Hoffmann-La Roche), which was settled out
of court; against a cartel of cement manufacturers, which is still pending, and recently a
new action filed against the members of a hydrogen peroxide cartel.
Actions for damages have significant hurdles to overcome. The reform of the German
Act against Restraints of Competition (i.e. the Gesetz gegen Wettbewerbsbeschränkungen,
hereinafter referred to as GWB) in 2005 lowered some of these hurdles. However, in
Germany and other European countries, the legal framework still does not provide for
an effective legal regime of private enforcement of damages claims against members of
cartels. For this reason, the European Commission in 2005 issued the Green Paper on
Damages Actions for Breach of EC Antitrust Rules2 and, after in-depth consultation, ...