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Dortmund 3 : 1 München – der deutsche Clásico der freien richterlichen Schätzung

Within a very short time, the Dortmund Regional Court presented three times its free judicial assessment of the cartel damage under Section 287 (2) ZPO.1 Now the Munich I Regional Court countered and scored the next goal. Who will prevail? Uncertain! The final in Karlsruhe may decide. A match report.

DIE FRÜHE FÜHRUNG

In three recent decisions, the LG Dortmund stormed forward on the question of free estimation. Initially, this estimate was limited to a price surcharge of 15%, which in the specific case of the purchase of rail superstructure materials (8 O 115/14) could be derived from a flat-rate damage allowance in the general terms and conditions. In two other judgments on the same cartel complex (8 O 26/16 and 8 O 116/14), this value was not only transferred to reference transactions at the same or later times that did not contain an express damage clause with this value, it was also postulated that a lower value of 10% was appropriate at earlier times.

The Regional Court of Dortmund saw the (more usual) possibility of an expert assessment of the cartel damage as being associated with “considerable difficulties and imponderables” 2 , since there was no comparable market and, due to the complexity of possible market changes, a "Time-consuming and costly investigation effort" was to be expected. Alternative methods of damage assessment are also clearly unsuitable.

DER ANSCHLUSSTREFFER

With its judgment on the truck cartel (37 O 10526/17), the LG Munich I, which has received far less attention so far, makes its own contribution to the debate about the possible uses of free judicial estimation.

In this procedure, the plaintiffs requested an estimate of the amount of damage according to § 287 Para. 2 ZPO - and specifically invited the court to quantify a damage of 12.5%.

The LG Munich I rejected this. In contrast to the LG Dortmund, the LG Munich I considers the obtaining of an expert opinion to be “essential” 3 for the judicial formation of convictions, at least in the case of the truck cartel . Only in this way can market developments be taken into account and the indications presented by the parties acknowledged. In particular, the long duration of the cartel and the heterogeneity of the markets (or the “complex economic relationships and developments” 4 ) justify the need for a thorough economic analysis.

The LG Munich I also contradicts the LG Dortmund with regard to the "notoriously horrendously high costs" 5 of expert reports and thus starts to go back and forth. The court had “already issued evidence orders to determine damage by means of an economic analysis in more than 50 proceedings and commissioned experts” 6. This is a “necessary prerequisite” for the “effective enforcement of any claims” . The costs incurred by such an expert opinion should not deter "a rational-economically thinking party from continuing the proceedings" . 7For classification: As far as can be seen, the parties before the LG Munich I requested reimbursement of damages in the amount of at least approx. EUR 186,000, whereas the parties before the LG Dortmund claimed damages in the amount of at least EUR 385,000.

The free estimate, as claimed by the plaintiff and "as carried out by the Dortmund Regional Court in proceedings in the rail cartel" is out of the question, given the complexity of the economic relationships and developments, an expert report is a "secured basis for the judicial damage assessment [...] ] indispensable” 8 . In addition, "reasonable alternatives" to free estimation would also be on the bench - here in particular the approximate determination of the counterfactual price using regression analysis, the top scorer of the previous season and the public's favorite among economist ultras. 9

Against this background, a free estimate is “arbitrary” 10 under the given circumstances and is “therefore out of the question” when standing on the sidelines . 11

DER VIDEOBEWEIS: META-STUDIEN

However, the LG Munich I does not accept the antitrust equivalent of video evidence, which is to derive the damage from more or less closely observed price increases of historical cartels if necessary. These are "not suitable" for determining the price increase in a specific legal dispute. 12 A consideration of these studies and in particular the medians of the presented price increases was used by the LG Dortmund to check the freely estimated price increases, but - as explained in Rinnen/Wandschneider - not sufficiently differentiated. However, the LG Dortmund rightly denied that damage could be derived from this in another recent judgment. 13

FAZIT

A final decision is still pending. After mandatory victories in the semi-finals against the OLGs in Düsseldorf and Munich, the final decision in Karlsruhe should soon come, if necessary on penalties.

[1] See in particular Rinnen/Wandschneider, NZKart, 2021.
[2] LG Dortmund, judgment of September 30, 2020 - 8 O 115/14, para. 97, BeckRS.
[3] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 147, BeckRS.
[4] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 150, BeckRS.
[5] LG Dortmund, judgment of September 30, 2020 - 8 O 115/14, para. 101, BeckRS.
[6] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 147, BeckRS.
[7] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 148, BeckRS.
[8] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 150, BeckRS.
[9] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 151, BeckRS.
[10] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 152, BeckRS.
[11] LG Munich I, judgment of February 19, 2021 – 37 O 10526/17, para. 152, BeckRS.
[12] The work of Coppik/Heimeshoff (WuW 2020) is cited here as justification. A detailed description of the shortcomings of these studies can be found in Rinnen/Wandschneider.
[13] LG Dortmund, judgment of July 8, 2020 − 8 O 75/19, para. 56, NRWE.

Any opinions expressed in this communication are personal and are not attributable to Competition Economists Group

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