The railway construction cartel also brought about three judgments of the German Federal Court of Justice (Bundesgerichtshof) of 13 April 2021. These concerned antitrust damages cases initiated by two (anonymous) regional transport operators from Dortmund, Duisburg and Cologne against (anonymous) railway construction companies.[1] The lower courts ruled in both cases that the price cartel created a suspicion of damage, that the cartelists had not sufficiently refuted that suspicion and therefore that they must compensate the damage. The Federal Court of Justice held that this was an interpretation of the burden of proof rule that is not in line with previous case law from the highest court. The rule that damage is suspected in a cartel case is a rule based on experience, but it does not automatically mean that the burden of proof is reversed.  The Federal Court of Justice found: “Taking such a principle of experience into account does not, however, lead to reversal of the burden of proof. The principle of experience in question should rather be taken into account in the context of the general assessment of all circumstances that argue in favour of or against the occurrence of the damage“. Consequently, the rule of suspicion of damage may only alleviate the claimants’ obligation to provide substantiation, but cannot lead to a different division of the burden of proof. The Federal Court of Justice therefore referred the cases back to the relevant appellate courts, as the Federal Courts of Justice cannot rule on the facts and circumstances. These judgments were only published on 19 July 2021 and 27 August 2021[2] and may have consequences for all previous judgments rendered by lower courts in relation to the railway construction cartel.

[1] Federal Court of Justice 13 April 2021, case KZR 98/18 and Federal Court of Justice 13 April 2021, case KZR 95/18 and Federal Court of Justice 13 April 2021, case KZR 40/19.

[2] “German transport operators’ train-tracks cartel damages suits sent back for review”, MLex 19 July 2021; “Cologne mass-transit operator’s train-tracks cartel damage lawsuit referred back to lower court”, MLex 27 August 2021.