Q4 saw the publication of a judgment from 23 September 2020 in which the Bundesgerichtshof ruled in favour of members of the German train tracks cartel. ^[1]BGH 23 September 2020, KZR 4/19 – OLG Düsseldorf LG Dortmund. The case was between unidentified cartel members and the transport operator for the city of Essen. The highest court referred the case back to appeal because it found that the appeal court had erred in applying the burden of proof, specifically by reversing the burden of proof when establishing whether the claimant had suffered damage. The judges held that there is a (rebuttable) presumption that prices affected by a cartel will be higher than those under normal market conditions, but that the burden of proof when assessing damage should not be reversed. This presumption is only one of the factors to be considered by the court.

This case is important because the highest court referred the case back, supplying detailed guidance on how to quantify damages, as well as helpful instructions and clarification on how to assess the defence that damage was passed on. The judges held that:

• A cartel member that wants to invoke the passing-on defence must present tangible evidence to support the contention that the damage was passed on, whereby the level of detail required depends on the specific circumstances of the case, in particular the complexity of the economic context.
• If – particularly in cases of scattered damages – there are a relatively small number of damages claims, which are by indirect cartel victims and difficult to quantify, the court should not accept the passing-on defence because that would involve the risk of the defendants being awarded unfair relief.