Not only direct customers of the cartel participants can claim damages for cartel violations, but also customers following them in the sales chain. However, the cartel participant can object to the claim that the claimant passed on the cartel-related price increase to its own customers. This was decided yesterday by the Cartel Panel of the Federal Supreme Court.
In the case underlying the decision, the plaintiff claimed damages from the defendant on the basis of the assigned right of a printing company for cartel agreements. The defendant had participated in a price cartel of carbonless paper manufacturers (carbonless paper) from January 1992 to September 1995. This is established on the basis of a decision of the EU Commission, which it unsuccessfully challenged (see ECJ, judgment of 26 April 2007 - T 109/02; ECJ, judgment of 3 September 2009 - C-322/07 P), which therefore imposed a fine of approximately € 33 million on the defendant. During this period, the printing company purchased carbonless paper at cartel-related inflated prices from wholesalers who, in turn, were supplied by manufacturers participating in the cartel. The Court of Appeal partially upheld the action. The Federal Supreme Court set aside the contested judgement and referred the case back to the Higher Regional Court, as further findings must still be made.
With its decision that indirect customers following in the sales chain may also be entitled to damages due to cartel-related price increases, the Federal Supreme Court takes into account the fact that the adverse consequences of a price cartel are not necessarily realised by the direct customers of the cartelists, but - because they can pass on the price increases - are often shifted to subsequent market levels. However, according to the meaning and purpose of cartel and damages law, it is necessary that those market participants also receive compensation for their damages at whose expense a conduct prohibited by cartel law is ultimately practised. This is also the opinion of the Court of Justice of the European Union, which has already ruled that everyone is entitled to claim compensation for the damage he has suffered which is causally attributable to a cartel prohibited under Union law.
As the Federal Court of Justice has further ruled, the cartel participant is, however, in principle entitled to counter the customer claiming damages with the fact that the latter has passed on to its own customers the cartel-induced excessive prices paid by it and has therefore ultimately suffered no more damage ("passing-on defence"). This benefit sharing avoids a disproportionate multiple claim against the cartelist for a damage that has only occurred once, as well as an unjust enrichment of direct customers, insofar as they have not actually suffered any economic damage.
Participants in the cartel are also liable for the damage caused to customers by the fact that they have purchased from other cartel participants via the wholesale trade.
The basis of the claim for damages in the dispute is § 823 (2) BGB in conjunction with Art. 81 EC (now Art. 101 TFEU). The action could not be based on Section 33 GWB, as this norm did not yet apply at the time of the relevant deliveries of goods. However, the Federal Supreme Court clarified that no fundamentally different assessment results under the applicable law.
Judgment of the BGH of 28 June 2011 - KZR 75/10 -
Lower courts:
OLG Karlsruhe, judgement of 11 June 2010 - 6-U 118/05 (Kart)
LG Mannheim, judgement of 29 April 2005 - 22 O 74/04
Source: Press release of the BGH
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
