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. 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:
|1||BGH 23 September 2020, KZR 4/19 – OLG Düsseldorf LG Dortmund.|