BGH to the requirements for proving a cartel damage
Judgment of 12. July 2016 – KZR 25/14 – Lottoblock II
The Cartel Division of the Federal Court has dealt with it, how far the binding effect on the determination of an antitrust infringement in the cartel administration proceedings, if compensation is sought for this offense later, and what requirements are to be set at the detection of a defect.
The applicant, a commercial lottery broker, requires the defendant, the lottery company of North Rhine-Westphalia, Damages for an antitrust infringement.
The holding of lotteries is basically reserved in Germany the Lottogesell-unions of the states, which the German Lotto- and Toto Block (DLTB) have joined. Ab April 2005 tried the applicant with various partners, establish a mediation for stakes in state lotteries. These outlets should be constructed in retail stores such as supermarkets or gas stations (“terrestrial distribution”). Revenue was achieved by the applicant from fees, the game player and commission payments of lottery companies. The Legal Committee of DLTB called the lottery companies on, reject sales from the terrestrial distribution of commercial gaming agents. The Federal Cartel Office prohibited the then DLTB and the lottery companies of countries, such a request and the implementation of the decision of the Legal Committee; this was available from by decision of the Bundesgerichtshof 14. August 2008 legally confirmed (CAR 54/07, WuW / E DE-R 2408 – Lottoblock I; s. Press release of the Federal Court No.. 155/2008 from 14. August 2008).
The applicant seeks compensation for loss of profit for the year 2006 to 2008. It argues, because of antitrust infringement of lottery companies they have not been able to build as planned the placement work and develop.
The Court of Appeal, the defendant about to pay damages in the amount of 11,5 My. convicted € plus interest. On appeal by the defendant the cartel division of the Federal Court annulled that decision and remanded the case to the Court of Appeal.
Due to the decision “Lottoblock I” is according to § 33 Abs. 4 GWB * for the compensation process firmly bound, have that the lottery companies followed the decision of the Judicial Committee of DLTB and violated by their tuned in this manner behavior with antitrust. Unlike adopted by the Court of Appeal, not due to the fact, however,, how long lasted this anti-competitive behavior.
However, the Court of Appeal was not wrong, that the concerted practice to 2008 has had an impact on the market behavior of lottery companies. Anyway, in a single anti-competitive agreement, which is applied to perpetual competition effects, speaks a presumption, that it is permanently observed by the parties and affected the market situation constantly, as long as the relevant circumstances do not change much. This assumption is not, as the appeal says, dispensed with the delivery of the Bundeskartellamt. Rather, for the rebuttal of the presumption in such a case required, that a party to the antitrust infringement company distanced itself and distinct from the vote. According to the findings of the Oberlandesgericht this has not happened.
However, this is not fixed yet, whether and to what extent the applicant has suffered damage through the collusion of the lottery companies. Although For this evaluation, the burden of proof of § 287 Abs. 1** Code of Civil Procedure, in which § 252 Set 2 BGB *** grants the injured to the presentation and proof of loss of income an additional burden of proof in the form of a rebuttable presumption. The Higher Regional Court but when be made in compliance with this scale test, whether and to what extent the applicant has suffered damage, not taken into account all relevant circumstances.
So it seems possible absence of other findings, that the lottery companies have completed despite existing economic incentive to cooperate with the applicant, even without anti-competitive coordination in autonomous economic decision not or only slowly and to a lesser than planned by the applicant scope intermediation contract with the applicant and paid commissions to them. But could a wish, to protect the existing distribution system for lotteries, and speak the uncertainty about the future gambling law, since the Constitutional Court had declared at the time realignment of gambling law to the goal of preventing addiction in constitutionally commanded. In addition, the Court of Appeal has between 2005 and 2008 not take sufficient account of the lottery companies incurred revenue and narrower temporarily in force in several new states and Berlin statutory commission bans for commercial game intermediation for damage calculation.
OLG Dusseldorf – Judgment of 9. April 2014 - VI-U Map 10/12 (WuW / E DE-R 4394)
LG Dortmund – Judgment of 24. April 2012 – 25 The 5/11
Karlsruhe, the 12. July 2016
* § 33 GWB injunctive, Liability for damages
(4)If for breach of a provision of this Act or Article 101 or 102 called the Treaty on the Functioning of the European Union damages, the court is bound by the finding of the infringement, as in a final decision of the Antimonopoly Committee, the European Commission or by the competition authority or acting as such court was taken in another Member State of the European Union. The same applies to corresponding findings in final court decisions, the result of challenging decisions to set 1 handed down. (…)
** § 287 ZPO Schadensermittlung; Amount of the claim
(1)Is among the parties in dispute, if damage has occurred and how high amount of the damages or interests to be compensated, so here on the court decides taking all the circumstances of free conviction. (…)
*** § 252 BGB Lost profits
(…) When escaped applies the profit, which in the normal course of things or to the particular circumstances, in particular those adopted institutions and arrangements, could be expected with probability.