On 23 September 2020, the highest court of Germany, the Bündesgerichtshof (“BGH“), annulled two interim judgments stating that the reasons given did not justify the finding that the cartel members concerned were in principle liable for the damages suffered. The annulment decisions were published in Q1 2021 and concern interim judgments of the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf.
- The interim judgement of the Higher Regional Court of Stuttgart was rendered in a damages lawsuit brought by two construction companies against truck manufacturer Daimler for its participation in the truck cartel. In this case, the Higher Regional Court had ruled that Daimler was in principle liable for the damages claimed by the claimants. The BGH considered that although the court was right in presuming that a cartel leads to an increase of the market prices of the purchased goods or services and therefore to damage, such presumption must be made on a case-by-case basis and taking into account the specific circumstances of the cartel. According to the BGH, the Higher Regional Court had not done so in full. The BGH was therefore concerned that the Higher Regional Court had reversed the burden of proof and had required the cartel member to proof that no damage had been suffered – thus placing an excessive burden of proof on the defendants.
- The interim judgment of the Higher Regional Court of Düsseldorf was rendered in a damages lawsuit brought against Shreck-Mieves, Balfour Beatty Rail and ThyssenKrupp GfT Gleistechnik because of their participation in the train-tracks cartel. It found that it could be assumed that the claimants had suffered damage. The BGH annulled this decision for similar reasons as it did the aforementioned decision of the Higher Regional Court of Stuttgart. The BGH found also in this case that the Higher Regional Court had not considered all specific circumstances of the case and that there was a risk that the court had reversed the burden of proof. It made it clear that such reversal would be an error in law.
The two cases have been referred back to the Higher Regional Court of Stuttgart and the Higher Regional Court of Düsseldorf, respectively, to be examined again.
 OLG Stuttgart Decision of 4 April 2019, 2 U 101/18.
 OLG Düsseldorf Decision of 23 January 2019, VI-U (Kart) 17/17.