Cartel Damages and Causation—The Landmark ‘Schienenkartell II’ Judgment

Abstract

In its second ruling in connection with the so-called rail cartel,1 the German Federal Court of Justice (in German: ‘Bundesgerichtshof’, short ‘FCJ’) partly upheld and partly refined its previous stance on causation in the context of cartel damages cases. A little over a year had passed since the FCJ handed down its first rail cartel ruling in December 2018.2 Ever since, courts of lower instance appeared to be uncertain about how to apply the requirements regarding the assessment of evidence the FCJ set out in that first case. The Higher Regional Court (‘HRC’) of Dusseldorf even openly defied the FCJ’s strict position on the standard of proof on the causation of damages in cartel damages cases.3 In contrast, practitioners have commended the FCJ’s second rail cartel ruling as a much-needed course correction. The FCJ...