Damages claims for abuse of dominance – A German perspective on effective private enforcement

I. Introduction

While follow-on damages claims in cartel cases are commonplace in Germany[1], damages claims based on abuse of dominance are rarely pursued in court[2]. This imbalance should not be mistaken for an indication that abuse of dominance causes less harm. Rather, the imbalance is likely driven by historical enforcement priorities. Cartels have long been the primary focus for competition authorities, while abuse of dominance cases have received less attention. This enforcement practice is, however, reversing. The number of cartel investigations has declined in recent years, likely driven in large part by a drop in leniency applications[3]. Abuse of dominance investigations have, in turn, sharply increased, particularly in digital markets. Both the European Commission (EC) and the national competition authorities such as German Federal Cartel Office (FCO) are increasingly active in this space.

While Big Tech is at the center of attention – see the cases against Google[4], Amazon[5], Facebook[6], Apple[7], Microsoft[8], abuse of dominance investigations also occurred in non-digital sectors. The EC has brought numerous cases across various industries: beverages (AB InBev, Coca-Cola)[9], sweets and snacks (Mondelēz)[10], waste collection systems (Tomra)[11], semiconductors and microchips (Intel, Qualcomm)[12], provision of digital payment services (PayPal)[13], telecommunications and infrastructure (Vodafone, Vantage Towers)[14], smartphone cover glass (Corning)[15], and pharmaceuticals (Teva)[16].

For the digital economy, the introduction of the Digital Markets Act (DMA), which establishes a system of ex ante regulation and per se rules, was a game-changer. While it will catch cases that would have otherwise triggered an abuse of dominance investigation, enforcement of Article 102 TFEU will not disappear in the digital sector. It will fill the gaps where the DMA is not applicable as a firm is not designated as a “gatekeeper”, where the service does not qualify as a “core platform” service, or where the conduct falls outside the DMA’s per se rules (see, e.g., Microsoft’s alleged tying of Teams to its Office365 and Microsoft 365 suite[17]).

As public enforcement gains pace, private follow-on actions are likely to pick up in its wake. Several actions are already pending, including the case brought by idealo and other comparison shopping services against Google following the EC’s Google Shopping decision[18]. Stand-alone claims – those filed without an underlying infringement decision – are also increasing[19]. In the future, cases based on DMA infringements will follow as the EC is carrying out non-compliance proceedings (it recently imposed fines on Meta and Apple) and the DMA allows injured parties to bring damages claims[20].

Despite the trend toward private damages litigation in abuse of dominance case, guidance in case law, guidelines, journals and text books, remains scarce – especially when compared to the abundance of material available on cartel follow-on litigation[21]. This article wants to address this gap. As a starting point, in section II, it takes a closer look at the huge potential for harm caused by the abusive behavior of dominant firms. Then, in Section III, it discusses what proof claimants must provide to establish the elements of a damages claim based on abuse of dominance – namely, proof of the infringement, fault, the occurrence of harm, and a reasonable quantification of harm. While the analysis is rooted in German law, many of its underlying considerations should be relevant for other jurisdictions in- and outside of the EU. In Section IV, the article finishes with a short conclusion.

II. The Huge Potential for Harm in Abuse of Dominance Cases

As a starting point, it is important to keep in mind that the nature of anti-competitive effects in abuse of dominance cases can differ substantially from those in cartel cases. While cartels typically result in higher prices (cartel overcharge), abuses often lead to anti-competitive foreclosure as they marginalize competitors or drive them out of the market altogether. Accordingly, the injured parties are often competitors, who may claim compensation for lost profits. Customers may, however, also suffer harm where foreclosure reduces competition in the market and thereby leads to higher prices.

The anti-competitive effects of cartels have been subject to several empirical studies. The most influential assessment of harm caused by cartels was set out in 2009 in an Oxera Report commissioned by the EC, which put the average price increase caused by cartels between 10% and 20%, with a median of 18%[22]. Although no empirical studies on the harm caused by abuses of dominance exist, the potential for harm resulting from abusive behavior is huge and likely matches or even exceeds the potential for harm in cartel cases.  Multiple reasons point to this conclusion.

First, the high level of fines imposed on dominant firms for abuses of dominance indicates that such infringements cause massive harm, as fines are typically based on the infringement’s potential of harm[23]. Four of the five largest fines the EC imposed between 2001 and 2018 were for abuses of dominance[24]. The €4.34 billion fine against Google in the Android case (2018) remains the highest on record – larger even than the total fine in the Trucks cartel[25].

Globally, the picture is similar. Between 2021 and 2023, fines for abuse of dominance reached about €7 billion – nearly on par with the €7.1 billion imposed in cartel cases over the same period[26].

Second, abuse cases necessarily involve firms with high market shares and anti-competitive effects therefore typically cover a large part of the market. Notably, market coverage of cartels (that according to empirical studies produce substantial harm) can vary. In some instances, like the Trucks cartel, the market coverage was over 90%[27], while in other cases the market coverage may be lower – such as in the Quarto plates cartel, where it was about 55%[28]. By contrast, dominance cases typically begin at a 40-50% market share threshold[29] and often involve much higher levels. For instance, Google’s share of online search exceeded 90% across Europe[30], and Intel held between 70% and 80% of the relevant markets during the relevant period[31]. In addition, dominant firms necessarily possess (significant) market power (whether defined structurally[32] or economically[33]) – an element that may also be present in cartel cases (as joint market power), but not necessarily.

Third, unlike cartels, dominant firms do not need to coordinate. The so-called “cheating problem” may make cartels more unstable. Each participant has an incentive to cheat by undercutting the others[34]. Cheating threatens the effectiveness of cartels and, thus, reduces their potential for anti-competitive effects. Dominant firms, conversely, do not need to worry that co-conspirators will (secretly) undermine their efforts. They can act unilaterally and implement their exclusionary or exploitative strategies. Accordingly, the effects of their anti-competitive effects are not restrained by the cheating problem.

Finally, anti-competitive effects of abuses may last substantially longer than those of cartels. Prices following the end of a cartel may return to a competitive level within a relatively short period of time (e.g., a year[35]). In exclusionary abuses, however, it typically takes much longer for competitors to restore their market position after an abuse of dominance has ceased. This holds particularly true in markets with strong network effects. There, anti-competitive effects of an infringement can carry on years after the infringement has ended resulting in substantial additional harm[36].

All of these aspects indicate that abuse of dominance can cause severe – and in some cases lasting – harm at least equivalent to that caused by cartels. Considering this huge damage potential, full compensation of injured parties is not only justified as a matter of competition policy but also mandated under the EU principle of effectiveness. While it is up to the Member States to create a set of rules that allows injured parties to claim damages for violations of Art. 102 (and Art. 5 to 7 of the DMA), these rules must not be construed as to render damages practically impossible or place unreasonable hurdles on plaintiffs. This overarching consideration impacts the assessment of all elements of damages claims for abuse of dominance.

III. The elements of damages claims for an abuse of dominance

To bring successful damages claims for abuse of dominance under German law, claimants must establish three key elements: an infringement (1.), fault (2.), and harm (3.) – harm can be subdivided in ‘occurrence of harm’ and ‘quantum’. In general, the same legal standards apply as in cartel damages cases[37]. In practice, the assessment of harm is the most contentious issue, particularly with regard to the relevant counterfactual and the quantification of loss.

1. Infringement

The claimant bears the burden of proof for the infringement. In follow-on actions, this burden is significantly reduced. Under Article 16(1) of Regulation 1/2003 and Sect. 33b German Act on Restraints of Competition (ARC), final decisions by the EC and competition authorities of the Member States are binding with respect to the infringement. More precisely, the binding effect extends to those findings that form the essential basis for the operative part, support it, or are necessary to define its scope [38]. This also includes the finding of a dominant position, which is a necessary element for an abuse case[39]. The scope of the binding effect in any given case largely depends on the content and level of detail of the authority’s reasoning in its decision. The more detail it contains, the better for the plaintiff.

Under German law, it is also possible to bring a case where there is no prior infringement decision (stand-alone action). There, claimants must prove the abuse independently and, as a rule, carry the full burden of proof. However, they can benefit from certain evidentiary rules. For example, German courts sometimes (partially) shift the burden of proof to the defendant. Disclosure obligations can also play a critical role. Although German civil procedure does not provide for discovery proceedings – some disclosure obligations exist but relate only to specific documents and apply only in very limited circumstances – there is an exception for competition law cases. Under Section 33g(1) ARC, plaintiffs can claim access to documents or other evidence held by the defendant, provided that they can establish a prima facie damages claim and show that the evidence is necessary to substantiate it. The disclosure obligation is not limited to harm (in particular, quantification of damages), but also applies to the infringement itself[40]. Despite these helpful tools, the evidential burden remains substantial in stand-alone actions and, accordingly, the infringement will often be a battleground between the parties and, as such, decisive for the outcome of the case.

2. Fault

Fault is the second element of a damages claim. While the burden of proof also rests on the plaintiff, claimants are not required to prove intent. Negligence suffices. Fault also merely relates to the infringement and does not need to comprise harm (foreseeability). In practice, fault is rarely a decisive factor in abuse damages cases. Courts routinely find it, even where abusive behavior does not fit squarely in the established categories or involves a novel theory of harm. Once the infringement is shown, fault tends to follow.

In follow-on actions, plaintiff can rely largely on the findings in the prior decision of the competition authority. While the binding effect of the authority’s decision doesn’t formally extend to fault[41], infringement findings typically include reasoning that supports a finding of at least negligent conduct. Civil courts tend to follow the simple logic that if there has been sufficient evidence to find fault for a fine, then it should be treated as a given in a civil follow-on action.

Where fault is contested – typically in stand-alone cases – this is seldom successful. Courts are generally reluctant to accept defenses that it was legally uncertain whether the conduct at stake would qualify as an abuse of dominance. Courts set the bar high and require the defendant to show reliance on clear and settled case law from a court of last instance[42]. It is not sufficient that there was legal uncertainty and a reasonable argument could be made that the conduct at stake would not qualify as an abuse of dominance[43]. In such cases, the risk of error rests with the dominant firm[44]. Even legal advice from outside external counsel offers no safe harbor; dominant undertakings are expected to critically assess such advice and develop their internal legal expertise[45].

3. Occurrence of harm

The occurrence of harm is the third key element in damages cases. It requires that the abuse caused any harm to the plaintiff. Quantification of the harm follows at a later stage. In abuse of dominance cases, harm can take many different forms. Unlike cartel claims – which typically center on overcharges – abuse cases often involve harm to competitors or, as far as harm to customers is concerned, rely on more complex market dynamics.

To assess whether harm occurred, courts apply a counterfactual test: would the claimant have been better off but for the abusive conduct? If the answer is yes, then harm is established. This standard applies across all forms of abuse, though the type of harm varies with the conduct at issue. The below table outlines five common categories of abuse under German law, each with examples and the primary type of harm they tend to cause. Needless to say, the table is not exhaustive, further types of harm may occur.

Exclusionary abuses typically result in the foreclosure of rivals. Fringe players could either be forced to exit the market or be (further) marginalized, which reduces their sales and may also increase per unit costs, especially where scale matters. Thus, the primary harm is lost profits. In some markets, weakened competition may also result in higher prices for customers, particularly where fixed costs are high, or network effects are strong.

Price discrimination, though often targeted to exploit customers that are less price-sensitive, can also be used as a tool to foreclose rivals – especially by conditional rebates that lead to de facto exclusivity. In these cases, price discrimination can have similar anti-competitive effects as other exclusionary practices[46].

Exploitative abuses, by contrast, closely resemble harm caused by cartels. These typically lead to inflated prices or unfair terms, making customer harm easier to quantify using tools developed in cartel damages analysis[47].

a. Proving the Occurrence of Harm

Claimants bear the burden of proving that harm occurred. Unlike in cartel follow-on damages cases, there is no statutory presumption that abuse causes harm[48]. In some cases, harm can be directly inferred from the infringement. In follow-on damages cases of exploitative abuses, competition authorities or courts will have already found that the price charged by the abusive company was excessive. To this end, they typically establish a counterfactual with a competitive market price and compare it with the actual market price charged by the dominant firm. This competitive price can be taken to assert that the plaintiff would have also paid this lower price in the absence of the infringement and has therefore suffered harm.

Harm may also be relatively easy to establish in other situations. For instance, in refusal-to-deal cases involving a terminated supply relationship, the resulting loss of profits is usually self-evident. Similarly, discriminatory pricing often results in certain customers paying more than others. It is very likely that the customer paying the higher price would have paid less in the absence of the abuse, even if the exact counterfactual price remains uncertain and is highly contested between the parties.

Demonstrating the occurrence of harm in exclusionary cases, which are particularly relevant in practice, may be less straightforward. Dominant firms will often argue that a rival’s decline was caused by other factors and present numerous reasons (management mistakes, poor product portfolio, lack of innovation, competitive pressure from rivals, etc.) to explain the competitor’s loss of market share, claiming that it is entirely unrelated to the abuse. Notably, these objections resemble standard arguments from cartelists, who often contend that price increases during the cartel were caused by external market conditions (increased input costs, lower market demand, etc.). In such cartel cases, German courts have rejected these arguments and established a rebuttable presumption that direct purchasers were harmed by the cartel[49].

This presumption should logically also apply to claims of rivals on the affected markets seeking damages for exclusionary abuses as the rationale underlying the presumptions of harm in cartel cases also applies here[50]. In the cartel context, the idea is simple: firms expose themselves to the risk of severe fines only if they expect to obtain financial gains – typically through inflated prices. The same logic applies to abuse cases: a dominant firm will only take the risk of a substantial fine for exclusionary conduct if it is very likely to obtain substantial benefits from the infringement. These benefits – namely a higher market share – are the flip side of the rivals’ loss (i.e. their declining market share)[51]. Moreover, unlike cartels, exclusionary abuses are unilateral and require no coordination. This presumably makes foreclosure strategies easier to execute, harder to detect and thus more successful.  Given these weaker restraints on their conduct, dominant firms can more easily pursue their objectives to the direct detriment of their competitors.

Some argue that, in the absence of empirical studies on the effects of abusive behavior, there is no basis for a presumption that harm occurred. Others point to the Directive 2014/104/EU (Damages Directive), which limits the presumption of harm to cartels. However, while empirical evidence is certainly helpful to establish such a presumption, it is not strictly necessary. Experience, sometimes simple common sense, may suffice[52]. The Federal Court of Justice (BGH) has acknowledged such presumptions even in the absence of empirical evidence. In Schlecker, it extended the presumption to per-se impermissible price-related information exchanges, whose anti-competitive effects are likewise not yet supported by empirical studies[53]. Moreover, the decision to limit the presumption in the Damages Directive to cartels was made by the legislature and thus constitutes a political decision. The rebuttable presumption in the German case law on cartels was judge-made and more likely to be based on practical legal experience. Courts remain free to extend it to abuse cases and – for the reasons outlined above – should do so in exclusionary abuse cases. This would also be in line with the principle of effectiveness as it prevents situations in which unreasonable hurdles are placed on plaintiffs seeking compensation for an infringement of Art. 102 TFEU.

b. Defenses: Lawful Alternative Conduct and Passing-On

Dominant firms often argue that the claimant would have suffered the same harm if the dominant firm would have used permissible means. For example, they might argue that a similar foreclosure effect would have occurred if it had implemented permissible rebates instead of impermissible conditional rebates. Under German law, this objection is known as the Einwand rechtmäßigen Alternativverhaltens (defense of lawful alternative conduct). It is treated as an issue of attribution, not causation,[54] and has already been rejected in civil damages claims concerning an abuse of dominance. The the highest German civil court, the Bundesgerichtshof (BGH) has determined that allowing such a defense would undermine the deterrent effect of competition law[55].

Similar arguments may arise in other jurisdictions. Even when courts take a less categorical view on this objection, they should reject hypothetical lawful alternatives that lack any basis in the actual market behavior of the dominant undertaking. Accepting such counterfactuals would weaken the effectiveness of private enforcement. Courts should therefore approach such arguments with caution and dismiss them regularly right away.

In excessive pricing cases, dominant firms may also raise the passing-on defense, arguing that a customer passed the overcharge on to downstream purchasers. This defense is permissible under Section 33c(1) ARC and applies to abuse cases under the same conditions as in cartel damages claims. The BGH has classified passing-on as a form of benefit offset[56], which is subject to corresponding limitations. Where overcharges are spread across numerous end customers who are unlikely to pursue damages individually (scattered damages) invoking the passing-on defense would unduly benefit the infringer and is therefore barred as a matter of law[57]. Even where indirect purchaser claims are feasible, the burden of proof lies with the defendant; under certain circumstances, the plaintiff, however, needs to proffer evidence on the issue[58].

4. Quantification of Damages

Quantifying damages in abuse of dominance cases hinges on a sound counterfactual – an estimate of what the claimant’s economic position would have been in the absence of the infringement. Because the counterfactual is hypothetical by nature, damages cannot be calculated precisely. Courts must rely on approximations, supported by available evidence, economic reasoning, and expert input[59].

As noted above, in certain abuse cases – such as excessive pricing or refusal to deal – the quantification of loss is often straightforward. Exploitative conduct tends to cause direct and measurable harm to customers. In exclusionary cases, where rivals’ harm usually takes the form of lost profits, estimating damages may be more complex. Yardstick (comparator-based) approaches – standard methods for estimating damages in cartel cases – are typically unavailable in abuse of dominance cases due to the lack of comparable market data[60]. Pre-infringement data may be unavailable[61], post-infringement data may either be unavailable (e.g. due to the plaintiff’s market exit) or unreliable as the foreclosure effects carry on[62].

Designing a robust counterfactual in such scenarios may be challenging, especially where uncertainty remains as to how the dominant firm may have compliantly behaved in the absence of the infringement[63]. However, courts are entitled – indeed required under the principle of effectiveness – to make reasonable estimates, even in the face of uncertainty[64]. A rough approximation of the most likely outcome is sufficient[65]. Claimants are not expected to determine the specifics of the but-for conduct of the dominant firm[66]. Instead, the burden of proof must remain reasonable for the injured party to discharge – especially in complex or fast-moving markets, where robust data is rarely available[67].

Notably, under German law, courts are not limited to applying yardstick methods. They are required to explore all other avenues and even consider estimating damages with or without the assistance of a court-appointed expert. Moreover, the EU principle of effectiveness calls on them to employ all available tools to ensure enforcement is not made practically impossible. One valuable tool under German procedural rules is the estimation of minimum harm[68]. If courts can only find a range of possible damages, they should award the lower bound as minimum damages. This ensures that claims are not dismissed simply because it is impossible to precisely quantify harm. This idea has gained traction in German cartel follow-on damages claims and could be applied with equal rigor to abuse cases[69].

Another option, recognized under Sect. 33a (3) sentence 2 ARC, but seldomly used in practice so far, is to base damages on the profit the dominant firm generated through the infringement. This option is common in intellectual property cases[70] and serves both compensatory and deterrent goals. The law allows courts to consider the share of profit derived from the unlawful conduct as a proxy for the harm suffered[71]. In cartel damages cases – where the infringer’s profit often mirrors the customers’ harm[72] – this provision has seen little practical use to date. It remains to be seen whether this provision may be more broadly applied in abuse of dominance cases. However, using profit as a proxy comes with challenges in some scenarios. In abuse cases, especially those involving predatory pricing or long-term exclusion strategies, the dominant firm may sacrifice short-term profits for longer-term strategic gains[73]. The abusive behavior may also involve costs – such as payments to distributors (Intel[74]) or the removal of infrastructure (Lietuvos geležinkeliai AB[75]), which lower the profits. These circumstances must be factored in when evaluating a profit-based estimate. Moreover, intellectual property cases, where this method is taken from, differ significantly from competition cases. The former typically only involve two parties, the IP holder and the infringer, whereas abuse cases typically affect multiple parties (competitors and/or customers). This gives rise to a specific challenge: each injured party can claim compensation only for the share of harm that each individually sustained.

In any event, courts have both the tools and the responsibility to make damage estimates work in practice. The guiding principle is not perfect precision, but fairness – and the assurance that firms cannot escape liability under civil law for their abusive conduct merely because its effects are difficult to measure.

IV. Conclusion

As public enforcement against abuses of dominance is on the rise across Europe, private damages actions will increase in both number and size. While cartel damages claims have long shaped the landscape of private enforcement and many legal issues have been settled, abuse of dominance cases present novel and distinct challenges. It is for the courts to tackle these challenges and to safeguard effective private enforcement in this area as well. Their role in providing effective redress is crucial, particularly given that the potential for damage that abuses can cause is huge and likely matches or even exceeds the potential for harm in cartel cases. Yet the legal and economic framework for pursuing compensation in abuse cases remains less developed than that applicable to cartel cases, resulting in parties navigating complex questions of infringement, fault, and harm – often without the benefit of binding decisions or empirical benchmarks.  Given the rising number of follow-on damages actions in abuse of dominance cases, courts and legal commentary can be expected to gradually develop and sharpen the applicable standards –  much like in cartel cases.

As in cartel follow-on damages cases, the most sensitive element is the assessment of harm, and parties will fiercely contest both its occurrence and quantum. With respect to the occurrence of harm, the rebuttable presumption of harm should also apply to damages claims of rivals in exclusionary abuses. The rationale that led to the adoption of such presumptions in cartel damages cases applies with equal force to abuse cases and should be extended accordingly. Quantifying harm will often require difficult estimations. However, uncertainty cannot justify denial of justice. Courts must make use of all available tools, including use of court-appointed experts, estimate damages based on the profits of the dominant firm and/or award minimum damages. This is not only consistent with German civil procedural rules but also mandated under the EU principle of effectiveness. In doing so, private damages actions will complement public enforcement, deter unlawful conduct, ensure redress for victims, and help safeguard the integrity of competitive markets.

Footnotes:

* The authors are attorneys at Hausfeld's Hamburg office. For a more detailed discussion of damages actions for abuse of dominance before German courts, see their earlier article in WuW 2025, 73 et seq. (available in German only).

[1] A particularly prominent example is the trucks cartel, which triggered a wave of litigation across Europe: See European Commission (EC), Decision of July 19, 2016, Case AT.39824 – Trucks. About the rise of follow-on actions, see Beutelmann/Scherzinger, NZKart 2021, 153; Weiss/Lesinska-Adamson, IR 2019, 56. As of November 12, 2024, over 100 Judgments of German courts on damages due to the Trucks cartel have been published on Juris (German case law database).

[2] In Germany, most abuse-related private enforcement consists of injunctive or performance claims – often in the form of interim relief – rather than damages actions. Interim injunction proceedings are common in distribution antitrust disputes (e.g. Higher Regional Court (OLG) Frankfurt a.M., Judgment of June 13, 2023, 11 U 14/23 (Kart), WuW 2023, 561 – Kfz-Vertragshändler) or in cases involving access to events or online platforms (e.g. OLG Hamburg, Judgment of August 31, 2023, 15 U 18/23 Kart, WuW 2023, 628 – Vignettenwerbung). An example of an injunctive relief case is Federal Court of Justice (BGH), Judgment of December 10, 2019, KZR 57/19, WuW 2020, 151 – Werbeblocker. In addition, proceedings under license antitrust law often involve the FRAND objection. See, for example, BGH, Judgment of May 5, 2020, KZR 36/17, WuW 2020, 478 – FRAND-Einwand. For examples of damages claims, see BGH, Judgment of October 29, 2019, KZR 39/19, WuW 2021, 209 – Trassenentgelte and BGH, Judgment of July 9, 2019, KZR 110/18, WuW 2019, 583 – Fernwärmerabatt.

[3] On the development of leniency applications, see OECD, Competition Trends 2023, https://www.oecd.org/en/publications/oecd-competition-trends-2023_bcd8f8f8-en.html (last accessed May 20, 2025); von Schreitter/Matt, NZKart 2024, 144.

[4] EC, Decision of June 27, 2017, Case AT.39740, summarized in WuW 2018, 83 – Google Search (Shopping); Decision of July 18, 2018, Case AT.40099 – Google Android; Decision of March 20, 2019, Case AT.40411 – Google Search (AdSense).

[5] EC, Decision of May 4, 2017, Case AT.40153 – E-book MFNs and related matters (Amazon); Decision of December 20, 2022, Case AT.40462 – Amazon Marketplace; Decision of December 20, 2022, Case AT.40703 – Amazon - Buy Box; Federal Cartel Office (FCO), Case B2-881/18 (discontinuation decision of July 17, 2019, following Amazons adjustments).

[6] EC, Decision of November 14, 2024, Case AT.40684 – Facebook Marketplace; FCO, Decision of February 6, 2019, B6-22/16, WuW 2019, 167 (case report) – Facebook. The FCO has since concluded the proceedings following the introduction of a package of measures by Facebook; see case report of October 9, 2024, on the implementation of the 2019 decision WuW 2024, 681.

[7] Ongoing proceedings: Case AT.40652 – Apple - App Store Practices (e-books/audiobooks); EC, Decision of March 4, 2024, Case AT.40437, cited in WuW 2024, 411 – Apple - App Store Practices (music streaming); EC, Decision of July 11, 2024, Case AT.40452 – Apple - Mobile Payments.

[8] EC, Decision of March 24, 2004, Case AT.37792, WuW/E EU-V 931 = WuW 2004, 673 – Microsoft; Decision of December 16, 2009, Case AT.39530 – Microsoft (tying). Ongoing proceedings: Case AT.40721 – Microsoft Teams and Case AT.40873 – Microsoft Teams II.

[9] EC, Decision of May 13, 2019, Case AT.40134 – AB InBev beer trade restrictions; FCO, Press Release of November 14, 2023, Bundeskartellamt initiates abuse proceedings against Coca-Cola, https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2023/14_11_2023_Cola.html?nn=55030 (last accessed May 20, 2025).

[10] EC, Decision of May 23, 2024, Case AT.40632 – Mondelez trade restrictions.

[11] EC, Decision of March 29, 2006, Case AT.38113 – Prokent-Tomra.

[12] EC, Decision of May 13, 2009, and September 22, 2023, Case AT.37990 – Intel; EC, Decision of January 24, 2018, Case AT.40220, summarized in WuW 2018, 205 – Qualcomm (Exclusivity payments); Decision of July 18, 2019, Case AT.39711 – Qualcomm (predation).

[13] FCO, Press Release of January 23, 2023, Bundeskartellamt initiates proceedings against PayPal, https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2023/23_01_2023_PayPal.html (last accessed May 20, 2025).

[14] FCO, Press Release of June 2, 2023, Bundeskartellamt examines potential anti-competitive impediment of 1&1 by Vodafone and Vantage Towers, https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2023/02_06_2023_Vodafone_1_1.html?nn=55030 (last accessed May 20, 2025).

[15] EC, Press Release of November 6, 2024, Commission opens antitrust investigation into possible anticompetitive practices by Corning over cover glass for electronic devices, https://ec.europa.eu/commission/presscorner/detail/en/ip_24_5681 (last accessed May 20, 2025).

[16] EC, Press Release of October 31, 2024, Commission fines Teva €462.6 million over misuse of the patent system and disparagement to delay rival multiple sclerosis medicine, https://ec.europa.eu/commission/presscorner/detail/en/ip_24_5581 (last accessed May 20, 2025).

[17] EC, Press Release of June 25, 2024, Commission sends Statement of Objections to Microsoft over possibly abusive tying practices regarding Teams, https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_24_3446/IP_24_3446_EN.pdf (last accessed May 21, 2025).

[18] See on the idealo proceedings: idealo, Press Release of April 12, 2019, idealo verklagt Google auf Schadensersatz wegen Missbrauchs seiner marktbeherrschenden Stellung, https://www.idealo.de/unternehmen/pressemitteilungen/idealo-verklagt-google-auf-schadensersatz-wegen-missbrauchs-seiner-marktbeherrschenden-stellung?msockid=0fdf78c2155b6ddf097d6df914aa6c10 (last accessed May 20, 2025). In Europe, several follow-on damages actions have been brought in the wake of the EC’s Google Shopping decision. Sweden: PriceRunner filed a €2.1 billion claim against Google before the Stockholm Patent and Market Court. See https://www.reuters.com/technology/pricerunner-sues-google-21-billion-after-eu-shopping-fine-2022-02-07/ (30.04.2025). France: LeGuide.com SAS filed a damages action before the Paris Commercial Court in 2017. The case resumed following the European Court of Justice’s (ECJ) September 2024 ruling. See https://www.billhartzer.com/google/leguide-com-sas-vs-google-u-s-court-grants-motion-to-lift-stay-denies-judicial-assistance-application/ (last accessed May 20, 2025). Italy: 7Pixel s.r.l., operator of Trovaprezzi.it, filed a follow-on claim in the Milan Tribunal. See https://www.clearyantitrustwatch.com/2021/01/the-court-of-milan-rejects-a-request-for-an-experts-preliminary-assessment-of-damages-based-on-the-2017-google-search-shopping-decision-of-the-european-commission/ (last accessed May 20, 2025). Netherlands: Compare Group, Kieskeurig.nl, and others filed a follow-on action using Google Netherlands as anchor defendant. See https://competitionlawblog.kluwercompetitionlaw.com/2023/06/28/jurisdictional-ruling-against-google-confirms-sumals-liability-test-setting-a-precedent/ (last accessed May 20, 2025). Poland: Ceneo (a subsidiary of Allegro) filed a 2.33 billion złoty (€557 million) damages claim. See https://about.allegro.eu/news-releases/news-release-details/ceneopl-sp-z-oo-filed-lawsuit-against-google-0/ (last accessed May 20, 2025). Czech Republic: Heureka Group filed a €15 million follow-on claim in Prague in June 2020. See https://www.heureka.group/en/press/heureka-files-a-lawsuit-against-google (last accessed May 20, 2025). United Kingdom: Kelkoo and Foundem brought follow-on claims pending before the UK Competition Appeal Tribunal. See https://www.catribunal.org.uk/cases/14245721-t-kelkoocom-uk-limited-others (last accessed May 20, 2025).

[19] A prominent example of a partly stand-alone claim is the class action brought by Nikki Stopford against Google before the UK Competition Appeal Tribunal. The claim challenges the revenue-sharing agreement between Google and Apple, which allegedly ensured that Google Search remained the default option across all search access points on Apple devices. The case is being brought by Hausfeld & Co. LLP. See https://www.hausfeld.com/news/multi-billion-google-search-claim-certified-by-uk-competition-appeal-tribunal (last accessed on April 30, 2025).

[20] On the private enforcement of the Digital Markets Act (DMA), see Galle/Richter, 1st Anniversary of the Digital Markets Act (DMA): Lessons Learned and Road Ahead, Hausfeld Competition Bulletin (March 2025), https://www.hausfeld.com/en-us/what-we-think/competition-bulletin/1st-anniversary-of-the-digital-markets-act-dma-lessons-learned-and-road-ahead/ (last accessed May 20, 2025); Galle/Dressel, EuZW 2024, 107; Lahme/Ruster, in: Podszun (ed.), DMA, 1st ed. 2023, Art. 39 para. 1 et seq.; Richter/Gömann, NZKart 2023, 208. In some cases, parallel enforcement under Art. 102 TFEU and the DMA may also be considered. This could apply, for instance, to damages arising after March 7, 2024, in cases following the DMA-Google Search proceedings. The Commission has initiated non-compliance proceedings under the DMA against Google for a breach of the prohibition on self-preferencing under Art. 6 (5) DMA. See Commission, opening Decision of March 25, 2024, Case DMA.100193 – Google Search - Art. 6(5). The EC issued a statement of objection on March 19, 2025, see EC, Press Release of March 19, 2025, Commission sends preliminary findings to Alphabet under the Digital Markets Act, https://ec.europa.eu/commission/presscorner/detail/en/ip_25_811 (last accessed May 20, 2025).

[21] EC, Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Articles 101 and 102 TFEU (hereinafter: Practical Guide), with guidance on damages for exclusionary conduct in paras 180-216. For commentary from a German perspective see the concise comments by Inderst/Maier-Rigaud/Schwalbe, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 paras 91 et seq.; Boos, in: Kamann/Ohlhoff/Völcker (eds), Kartellverfahren und Kartellprozess, 2nd ed. 2024, § 31 paras 29 et seq.

[22] Komninos et. al, Quantifying antitrust damages: Towards non-binding guidance for courts, p. ix and p. 90, https://www.oxera.com/wp-content/uploads/2018/03/Quantifying-antitrust-damages-3.pdf (last accessed May 20, 2025). For critical views see Hellmann/Schliffke, WuW 2022, 83, 86; Inderst/Thomas, Schadensersatz bei Kartellverstößen, 2nd ed. 2018, p. 90 et seq.; and Coppik/Heimeshoff, WuW 2020, 584, 590 (generally critical of the usability of meta-studies in the quantification of cartel damages,). The BGH acknowledged the Oxera Study in Schienenkartell VI and held that the lower courts had rightfully relied on it. According to the BGH, economic objections did not prevail "in the absence of better findings". See BGH, Judgment of February 2, 2021, KZR 63/18, juris, para. 43 et seq. (not printed in WuW 2021, 355 – Schienenkartell VI). On the ability to consider the Oxera study in damage estimations, BGH, Judgment of July 9, 2024, KZR 98/20, WuW 2024, 607 paras 24 f. – LKW Kartell IV.

[23] According to the FCO's Guidelines on the Calculation of Fines in Cartel Infringement Proceedings, the standardised profit and loss potential of 10 percent of the infringement-related turnover, together with the size of the company, "forms the basis for determining the initial value of the assessment". See FCO, Guidelines on the Calculation of Fines in Cartel Infringement Proceedings, 2021, Note 4, p. 7. In the EU, however, fines are capped at 10 % of the undertaking’s worldwide turnover in the last financial year preceding the fine and can be further reduced (leniency and settlement bonus) may, therefore, fall short to capture the full harm caused by the infringement.

[24] This assessment remains valid when considering the period after 2018. In the same order of magnitude as the fines listed in the table, the EC imposed a fine of EUR 1.49 billion on Google (Alphabet) for a violation of Art. 102 TFEU (EC, Press Release of May 20, 2019, Case AT.40411 – Google Search (AdSense); however, overturned by the General Court (GC), Judgment of September 18, 2024, ECLI:EU:T:2024:624, WuW 2024, 657 – Google Ad Sense for Search), against Facebook (Meta), imposed a fine of EUR 797 million on Facebook (Meta) (EC, Press Release of November 14, 2024, Case AT.40684 – Facebook Marketplace) and a fine of EUR 463 million on Teva (EC, Press Release of October 31, 2024, Case AT. 40588 – Teva). It also imposed fines for a breach of Art. 101 TFEU against Mastercard in the amount of EUR 570 million (EC, Press Release of January 22, 2019, Case AT.40049 – Mastercard); against UBS, Barclays RBS, HSBC and Credit Suisse in the total amount of EUR 344 million (EC, Press Release of December 2, 2021, Case AT.40135 – Forex (Sterling Lads)) and against Mondelēz in the amount of EUR 337 million (EC, Press Release of May 23, 2024, Case AT.40632 – Mondelez Trade Restrictions).

[25] On Google Android, see EC, Press Release of July 18, 2018, Case AT.40099; however, the GC later reduced the fine to approximately EUR 4.13 billion (GC, Judgment of September 14, 2022, T-604/18, ECLI:EU:T:2022:541, WuW 2022, 608 – Google Android). On the Trucks cartel, see EC, Press Release of July 19, 2016, Case AT.39824 – Trucks; Press Release of September 27, 2017, Case AT.39824 – Trucks – Scania. Of the total fines imposed, approximately EUR 1.09 billion was attributable to Daimler, EUR 880 million to Scania, EUR 753 million to DAF, EUR 670 million to Renault/Volvo and EUR 495 million to Iveco. MAN received full immunity as the leniency applicant.

[26] See Galle/Steinhaeuser, CCZ 2024, 162, 164 (Fig. 2). The reference study was based on data from 30 jurisdictions.

[27] EC, Decision of July 19, 2016, Case AT.39824, para. 24 – Trucks.

[28] See FCO, Case Report of August 3, 2020, Case B12-25/16, WuW 2020, 560, https://www.bundeskartellamt.de/SharedDocs/Entscheidung/DE/Fallberichte/Kartellverbot/2020/B12-25-16.pdf?__blob=publicationFile&v=1 (last accessed May 20, 2025).

[29] Although there is no formal legal presumption in EU antitrust law, the ECJ regularly infers a dominant market position from a market share of 50% or more. See Bechtold/Bosch/Brinker, EU-Kartellrecht, 4th ed. 2022, Art. 102 TFEU para. 28, with further references. However, the market share of a dominant undertaking does not necessarily match the market coverage of the abuse. For example, it is conceivable that the dominant firm only enters into exclusivity agreements with only some market participants – as was the case of the prohibition of CTS Eventim's exclusivity agreements by the FCO, Decision of December 4, 2017, Case B6-132/14, para. 262, not printed in WuW 2018, 164 – CTS Eventim.

[30] EC, Decision of June 27, 2017, Case AT.39740, para. 279 – Google Search (Shopping); EC, Decision of July 18, 2018, Case AT.40099, para. 681 – Google Android; most recently reaffirmed in merger control proceedings EC, Decision of March 28, 2023, Case M.10796, paras 72, 78 ff. – Google/Photomath.

[31] EC, Decision of May 13, 2009, Case AT.37990, para. 852 – Intel.

[32] See for the concept of a dominant position United Brands (Judgment of February 14, 1978, Case 27/76, ECR 1978, 207, para. 65, WuW/E EWG/MUV 452 = WuW 1978, 653), in which the ECJ defined a dominant position as the "position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers". The German Act against Restraints of Competition (ARC) definition of a dominant market position in Section 18 (1) ARC similarly contains no explicit reference to price.

[33] This refers to the Lerner Index, which defines market power as the ability to raise prices above marginal costs. The formula is L = (p - MC) / p, where p denotes the price and MC the marginal costs. The index ranges from 0 and 1; a value of 0 indicates no market power, while a value of 1 indicates full market power. The rationale behind the Lerner Index is that, under conditions of perfect competition, prices equal marginal costs, whereas in less competitive markets – and in particular in monopolies – prices exceed marginal costs due to the presence of market power. For the economic definition of market power and the Lerner index, see: Schwalbe/Zimmer, Kartellrecht und Ökonomie, 3rd ed. 2021, p. 65 et seq.

[34] On the importance of a credible punishment mechanism to prevent deviation and ensure the stability of the cartel, Kerber/Schwalbe, in: Münchener Kommentar zum Wettbewerbsrecht, vol. 1/1, 4th ed. 2023, Grundlagen des Wettbewerbsrechts, paras 325 et seq.; see also Schwalbe/Zimmer, Kartellrecht und Ökonomie, 3rd ed. 2021, p. 462 et seq.

[35] In ORWI, the BGH instructed the court of appeal to consider the after-effects of the cartel as a factor increasing the amount of damage. It suggested calculating the after-effect damages as the difference between the cartel price at its end and the lowest price achieved within the following year. See BGH, Judgment of June 28, 2011, KZR 75/10, WuW/E DE-R 3431 = WuW 2012, 57, para. 84 – ORWI. Following this ruling, many courts have assumed an after-effect period of generally one year. See, for example OLG Karlsruhe, Judgment of November 9, 2016, 6 U 204/15 Kart (2), juris, headnote 6, para. 66, not printed in WuW 2017, 43 – Grauzementkartell; BGH, Judgment of June 12, 2018, KZR 56/16, WuW 2018, 405, para. 36 – Grauzementkartell II; OLG München, Judgment of March 8, 2018, U 3497/16 Kart, WuW 2018, 486, para. 81 – Schienenfreunde; OLG Celle, Judgment of August 12, 2021, 13 U 120/16 (Kart), WuW 2021, 591, para. 166.

[36] EC, Practical Guidance, para. 206; Hauser/Haas, in: Stancke/Weidenbach/Lahme (eds), Kartellrechtliche Schadensersatzklagen, 2nd ed. 2021, Chapter I para. 204; Inderst/Maier-Rigaud/Schwalbe, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 para. 56

[37] The Damages Directive applies unless a provision is explicitly limited to cartels: Directive 2014/104/EU, OJ 2014 L 349, p. 1-19. The same applies to national provisions such as Section 33a ARC.

[38] Art. 16(1) sentence 1 of Regulation 1/2003 (unlike Section 33b ARC) does not require the decision to be final, meaning that it takes effect earlier. However, German courts often suspend proceedings in whole or in part under Section 148 (1) German Code of Civil Procedure (ZPO) due to anticipated effect of the decision, insofar as the EC’s fining decision is not yet final. For the extent of the binding effect see ECJ, Judgement of January 28, 2004, Case C-164/02, ECLI: EU:C:2004:54, paras 21 et. seq. – Netherlands v Commission; for German Law see BGH, Judgement of July 12, 2016, KZR 25/14, WuW 2016, 488, paras 18 et. seq. – Lottoblock II.

[39] Bechtold/Bosch, GWB, 11th ed. 2024, Section 33 ARC para. 46 with further references.

[40] See BGH, Judgment of April 4, 2023, KZR 20/21, WuW 2023, 549, para. 112 – Vertriebskooperation im SPNV. See also Preuß, in: Loewenheim/Meessen/Riesenkampff/Kersting/Meyer-Lindemann (eds), Kartellrecht, 4th ed. 2020, Section 33g ARC para. 61; and Hempel, in: BeckOK Kartellrecht, 14th ed. October 1, 2024, Section 33g ARC para. 16, who argues – restrictively – that submitting evidence of an infringement of antitrust law should generally not be required in follow-on proceedings.

[41] On the German provision in Section 33b ARC, see Franck, in: Immenga/Mestmäcker (eds), Wettbewerbsrecht, vol. 2, 7th ed. 2024, Section 33a ARC para. 27; BT-Drucks. 15/3640 p. 54; Hempel, in: BeckOK Kartellrecht, 14th ed. October 1, 2024, Section 33b ARC para. 35. Following the Schlecker ruling of the BGH, Hempel differentiates that while the determination of fault is not subject to the binding effect, the underlying facts on which that assessment is based are. See BGH, Judgment of November 29, 2022, KZR 42/20, WuW 2023, 99, para. 25 – Schlecker.

[42] See for example BGH, Judgment of December 16, 1986, KZR 36/85, WuW/E (BGH) 2341, 2345 = WuW 1987, 525 – Taxizentrale Essen; ECJ, Judgment of June 18, 2013, Case C-681/11, ECLI:EU:C:2013:126, WuW EU-R 2754 = WuW 2013, 893, para. 33 et seq. – Schenker & Co. et al; see also Franck, in: Immenga/Mestmäcker, Wettbewerbsrecht, vol. 2, 7th edition 2024, Section 33a ARC para. 50 to 56; Lübbig, in: Münchener Kommentar zum Wettbewerbsrecht, vol. 2, 4th edition 2022, Section 33a ARC para. 28.

[43] OLG Düsseldorf, Judgment of September 30, 2009, VI-U (Kart) 17/08 (V), WuW/E DE-R 2763, 2767 f. = WuW 2010, 81 – Postkonsolidierer; Franck, in: Immenga/Mestmäcker (eds), Wettbewerbsrecht, Vol. 2, 7th ed. 2024, Section 33a ARC para. 52.

[44] BGH, Judgment of December 16, 1986, KZR 36/85, WuW/E (BGH) 2341, 2345 = WuW 1987, 525, para. 23 – Taxizentrale Essen; Franck, in: Immenga/Mestmäcker, Wettbewerbsrecht, Vol. 2, 7th ed. 2024, Section 33a ARC para. 55.

[45] BGH, Judgment of January 27, 1966, KRB 2/65, WuW/E BGH 726, 734, paras 48-56 = WuW 1966, 664 – Klinker; Franck, in: Immenga/Mestmäcker (eds), Wettbewerbsrecht, vol. 2, 7th ed. 2024, Section 33a ARC para. 54.

[46] The overlap becomes particularly clear in the case of fidelity rebates, which can have both exclusionary and discriminatory effects. In Michelin (ECJ, Judgment of November 9, 1983, Case C-322/81, ECLI:EU:C:1983:313, WuW/E EWG/MUV 642 = WuW 1985, 166, para. 64, 75 ff. and 87 ff. – Michelin v. Commission), the binding effect of the rebates was addressed under the general clause of Art. 102(1) TFEU (then Art. 86 EC) while the unequal treatment of distributors was found to fall under Art. 102(2)(c) TFEU. In the EC’s enforcement priorities for Art. 102 TFEU, OJ 2009 C 45/02, para. 37 et seq. (also in the draft guidelines of August 1, 2024, para. 138 et seq.), fidelity rebates are assessed solely in terms of their exclusionary (crowding-out) effect with the discriminatory aspect left unaddressed.

[47] Inderst/Maier-Rigaud/Schwalbe, in: Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 para. 53; Roth, in: Frankfurter Kommentar zum Kartellrecht, vol. 5, 109th ed. 2024, § 33a ARC para. 141; but see Boos, in: Kamann/Ohlhoff/Völcker (eds), Kartellverfahren und Kartellprozess, 2nd ed. 2024, Section 31 para. 32 (taking a different view). On exploitative abuse, see also the detailed analysis by Maier-Rigaud for the OECD, Competition Committee, Excessive Prices, 2012, pp. 23 et seq.

[48] Article 17 of the EU Damages Directive establishes a rebuttable presumption that cartel infringements cause harm. Germany implemented this presumption through Section 33a(2) ARC. However, like the Directive, Section 33a(2) ARC is limited in scope to cartel cases.

[49] BGH, Judgment of December 11, 2018, KZR 26/17, WuW 2019, 91, para. 55 – Schienenkartell.

[50] Such an echo can also be found in the Schienenkartell Judgment of the BGH (para. 55), where it states: "According to economic principles, cartels will often result in a cartel return. If companies enter into such agreements despite the considerable risks involved, there is a factual presumption that the prices achieved in the context of a cartel are on average higher than those that would have been formed without the restrictive agreement (BGH, Judgment of January 8, 1992, 2 StR 102/91, BGHSt 38, 186, 194; Judgment of June 28, 2005, KRB 2/05, WuW/E DE-R 1567, 1569 – Berliner Transportbeton I; Judgment of February 26, 2013, KRB 20/12, WuW/E DE-R 1567, 1569 – Grauzementkartell I; BGH, Judgment of June 12, 2018, KZR 56/16, NZKart 2018, 315, para. 35 – Grauzementkartell II; see also BGH, Judgment of December 5, 2023, KZR 46/21, WuW 2024, 108, paras 40 f. – LKW-Kartell III; Schweitzer/Woeste, ZWeR 2022, 46, 70; see also LG Dortmund, Judgment of September 27, 2021, 8 O 4/18 (Kart), paras 16 et seq.; Haucap/Heimeshoff, ZWeR 2022, 80, 98; Huttenlauch/Dengler/Voges, WuW 2022, 259, 262.

[51] In addition, the dominant company could benefit from higher prices.

[52] Over time, the BGH has gradually expanded the scope of the factual presumption of harm. In the Trucks cartel case (BGH, Judgment of September 23, 2020, KZR 35/19, WuW 2021, 109 para. 39 et seq.) the court applied the presumption to collusion on gross list prices. In Schlecker (BGH, Judgment of November 29, 2022, KZR 42/20, WuW 2023, 99 paras 45 et seq.), it extended it to an exchange of price information. Most recently, in the Liefersperre (supply stoppage) case (BGH, Judgment of September 12, 2023, KZR 39/21, WuW 2024, 30 para. 48), the presumption was applied in a vertical restraints context. In that case, however, the presumption related specifically to the causal link between the vertical price maintenance and the harm resulting from the refusal to supply. See also the case comment by Galle, NZKart 2024, 91.

[53] BGH, Judgment of July 9, 2024, KZR 98/20, WuW 2024, 607, paras 11 and 16 et seq., 25 – LKW Kartel IV.

[54] In Jutefilze (Judgment of October 24, 1995, KZR 3/95, WuW/E BGH 3017, paras 19 et seq. = WuW 1996, 127) the BGH clarified that the defence of lawful alternative conduct is conceptually distinct from standard conditio sine qua non causation. The defence applies where the defendant’s own conduct is substituted, rather than simply omitting the unlawful act. This distinction becomes more difficult in cases involving pure financial loss – as opposed to personal injury or property damage – since the hypothetical course of events is harder to reconstruct. In abuse cases, some form of alternative behaviour by the dominant firm must still be assumed. Past conduct prior to the infringement may serve as a reference point. However, to avoid circumventing the normative exclusion of the lawful alternative conduct defence, hypothetical lawful behaviour that would otherwise be barred must not be imputed.

[55] BGH, Judgment of August 8, 2022, KZR 111/18, WuW 2022, 621, para. 131 f. – VBL Gegenwert III, see also BGH, Judgment of February 8, 2022 KZR 8/21, WuW 2022, 34, paras 47 and 59 – Trassenentgelte Sachsen/Thüringen.

[56] See generally BGH, Judgment of June 28, 2011, KZR 75/10, WuW/E DE-R 3431 = WuW 2012, 57 para. 57 – ORWI.

[57] BGH, Judgment of February 8, 2022, KZR 8/21, WuW 2022, 34 para. 58 Trassenentgelte Sachsen/Thüringen.

[58] See generally BGH, Judgment of June 28, 2011, KZR 75/10, WuW/E DE-R 3431 = WuW 2012, 57 paras 64, 70 seq. – ORWI.

[59] While the EC’s Practical Guide offers guidance on estimating damages in exclusionary abuse cases (paras. 180-216), its practical value – much like in cartel damages litigation – appears limited at first glance.

[60] Inderst/Maier-Rigaud, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 para. 99; Fuchs, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 6 para. 87.

[61] Data from the pre-infringement period may be available but unusable, for example, if the market was still emerging, rapidly expanding, or undergoing significant structural change at the time.

[62] Inderst/Maier-Rigaud, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 para. 98 fn. 99; see for the distortion by remedies Fuchs, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 6 para. 87.

[63] Inderst/Maier-Rigaud, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 paras 100 f.

[64] BGH, Judgment of September 21, 2021, KZR 8/21, WuW 2022, 34, para. 54 – Trassenentgelte II, concerning a price-related exploitative abuse. The Court’s reasoning applies even more strongly to exclusionary abuses, where determining the counterfactual scenario is typically subject to greater difficulties.

[65] EC, Practical Guide, paras 194, 197.

[66] See for the counterfactual analysis in the assessment of the infringement in the United Kingdom: Competition Appeal Tribunal, Decision of June 5, 2024, Ad Tech v Google [2024] CAT 38, para. 25 ("Google's suggestion [...] that it is necessary for Ad Tech to specify how the non-discrimination could have been avoided by Google is not, in our judgment, something that needs to be pleaded by Ad Tech. In our view, the authorities above support the contention that there is no requirement for a counterfactual to take a particular form."); Competition Appeal Tribunal, Decision of November 22, 2024, Nikki Stopford v. Google [2024] CAT 67, para. 18.

[67] Especially if there is competition for the market, Inderst/Maier-Rigaud, in: Fuchs/Weitbrecht (eds), Handbuch der privaten Kartellrechtsdurchsetzung, 1st ed. 2019, § 7 para. 98.

[68] See Topel, in: Wiedemann (ed), Handbuch des Kartellrechts, 4th ed. 2020, § 50 para. 91 (with reference to BGH, Judgment of May 22, 1984, III ZR 18/83; BGHZ 91, 243, 257; BGH, Judgment of June 24, 2009, VIII ZR 332/07, WM 2009, 1811, para. 16).

[69] See, for example, Klumpe/Paha, WuW 2024, 522; Milde, WuW 2023, 531; Hellmann/Schliffke, WuW 2022, 83; in overview Huttenlauch/Dengler/Voges, WuW 2022, 259, 264 et seq. Klöppner/Preuße, NZKart 2021, 663, 669; Schweitzer/Woeste, NZKart 2021, 677; Hornkohl, NZKart 2020, 661; Kersting, WuW 2020, 619; Thole, NZKart 2021, 5; fundamentally Kühnen, NZKart 2019, 515; BGH, Judgment of July 9, 2024, KZR 98/20, WuW 2024, 607, paras 20 et seq. – LKW Kartell IV.

[70] See Section 97(2) sentence 2 of the German Copyright Act (UrhG); Section 139(3) of the Patent Act (PatG); Sections 14(6) and 15(5) of the Trade Mark Act (MarkenG); Section 42(2) sentence 2 of the Design Act (DesignG); and Section 24(2) sentence 2 of the Utility Model Act (GebrMG).

[71] One example of its application in intellectual property law is the claim for disgorgement of profits earned by a company from the sale of counterfeit goods.

[72] If non-participating suppliers (outsiders) also increase their prices in the wake of the cartel (so-called umbrella pricing), the cartel damage will exceed the cartelists' profits.

[73] See, for example, Google's annual payments to Apple, among others, which ensured that Apple pre-installed Google Search on all devices as the default setting for all search access points. The D.C. District Court has classified the agreement as an exclusive agreement in violation of Section 2 of the Sherman Act, D.C. District Court, Opinion v. 05.08.2024, Case No. 20-cv-3010 (APM), p. 197 et seq.

[74] EC, Judgment of May 13, 2009, Case AT.37990, paras 580 et seq. – Intel.

[75] For the facts of the case and the accusation, see ECJ, Judgment of January 12, 2023, Case C-42/21 P, ECLI:EU:C:2023:12, WuW 2023, 153 paras 22 et seq. and paras 33 et seq. – Lietuvos geležinkeliai AB v Commission.