Der Schadensnachweis bei Hardcore-Kartellen

Private enforcement against hardcore cartels has meanwhile become legal reality in Germany. After eliminating the substantive law obstacles for filing cartel damage claims in the course of the 7th amendment to the ARC, the key problem remains of having to prove damage suffered. This frequently raises complex questions spanning both economic and legal issues. The starting point for assessing damage caused by a cartel is the increase in prices resulting from the cartel’s activities; this requires reconstructing what the situation on the market would have been had the cartel not existed. To this end, information is often needed that is not readily accessible to the plaintiff, who bears the burden of proof. In addition, there is uncertainty as to the requirements for demonstration and proof of cartel-related price increases in civil proceedings. The author examines these issues as part of an integrated analysis, which connects the legal requirements for proof with the economic insights into cartel damages and their calculation. The study focusses exclusively on the damage suffered by direct cartel buyers as a result of price increases. Possible implications of the recently adopted Directive 2014/104/EU on antitrust damages actions under national law are taken into consideration in this regard.