Myths and Untold Stories - Private Antitrust Enforcement in Germany

The paper offers an empirical analysis of private antitrust enforcement in Germany based on cases that were decided by courts between 2005 and 2007. The study presents information about the magnitude and nature of civil antitrust actions in Germany. The data includes inter alia, information about the courts involved in litigation, the relationship of the parties, affected industries, the remedies sought, the outcome of the claim, the alleged anticompetitive conduct, the proportion of stand-alone and follow-on litigation, and the length of proceedings before a given court. The study shows that a large number of private cases were concluded even when compared with public investigations in Germany. It seems that private antitrust actions complement rather than duplicate public enforcement efforts because of the overwhelming proportion of stand-alone claims and the amount of actions based on the abuse of market power. Only a small number of litigants asked for the compensation of loss suffered from anticompetitive conduct. Interpreting the results from the study cautiously, the paper suggests that the European Commission and other stakeholders may have misunderstood the nature of private actions in Germany (and maybe Europe) and, consequently, asked the wrong question, focusing on compensation. Expensive damages actions for the breach of the antitrust rules might not be as important as commonly assumed.