Edited by Albert A. Foer and Jonathan W. Cuneo
Philipp von Dietze and Eckart Brödermann1 Introduction Private enforcement of antitrust law is both a long-standing practice and a new phenomenon in German case law. The reason for such an astonishing statement is simple. Antitrust law in Germany covers three areas: prohibition of cartels, prohibition of the abuse of a dominant market position and merger control. In the past, German courts have had many opportunities to deal with private actions of companies claiming that other companies have abused their dominant position by, for example, refusing to supply, refusing access to an essential facility or predatory pricing, while actions against members of cartels have been very rare. The public has seen several such actions in German courts: against the vitamin cartel (Hoffmann-La Roche), which was settled out of court; against a cartel of cement manufacturers, which is still pending, and recently a new action filed against the members of a hydrogen peroxide cartel. Actions for damages have significant hurdles to overcome. The reform of the German Act against Restraints of Competition (i.e. the Gesetz gegen Wettbewerbsbeschränkungen, hereinafter referred to as GWB) in 2005 lowered some of these hurdles. However, in Germany and other European countries, the legal framework still does not provide for an effective legal regime of private enforcement of damages claims against members of cartels. For this reason, the European Commission in 2005 issued the Green Paper on Damages Actions for Breach of EC Antitrust Rules2 and, after in-depth consultation, in April 2008 published a subsequent White...
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