Estimating harm in competition law damages proceedings: Recent developments in Germany

Damages actions in competition disputes before German courts are frequently criticised for proceeding too slowly, costing too much, and resulting in too few judgments awarding compensation.[1] In the final two months of 2025, three prominent examples illustrated differing judicial approaches to addressing these issues in cartel and abuse of dominance cases. The Regional Court of Munich I in the Trucks cartel, the Regional Court of Berlin II in a Google Shopping damages action, and the Higher Regional Court of Stuttgart in the bathroom fittings & fixtures cartel each adopted distinct procedural and substantive approaches to estimating harm.[2] This article sets out the methodologies employed by these courts (I.) and offers initial reflections on how the quantification of damages in competition law disputes could – and should – develop in the near future (II.).

I. Recent experiences from competition law damages proceedings in Germany

1. Oral Hearing of Regional Court of Munich I – Trucks cartel

At the end of November 2025, the Regional Court of Munich I convened a major expert hearing spanning five days in more than 35 consolidated, parallel, trucks cartel damages cases.[3] While that format may be more efficient than trying each case separately,[4] it came with a hefty price tag: for five days, 130 lawyers and economists were occupied solely with the hearing.[5]

This phase was preceded by an already lengthy process. The experts were instructed in 2019, they delivered their reports at the end of 2022, and supplemental reports in early 2025.

A first instance judgment is expected in 2026 for at least some of the cases. The court will first have to evaluate the evidentiary record in further hearings across the individual cases. For most of the cases, a substantive judgment is likely years away, not least because many plaintiffs purchased trucks not only in Germany but also in other European countries. The expert reports to date – and the oral hearing that followed – covered only the German market. Comparable reports for other markets will likely take years to produce.[6]  

Despite the well organised proceedings, the experience of the Regional Court of Munich I suggested that this approach is unlikely to meaningfully accelerate the timeline of these cases.

2. Judgment of Regional Court of Berlin II – Google Shopping Damages

By contrast, in two parallel Google Shopping damages cases, the Regional Court of Berlin II adopted a markedly leaner approach. It quantified damages on its own – dispensing with the parties’ expert reports and without appointing a court expert.[7] The judgments concerned actions brought by the German comparison shopping services (CSS) idealo and Producto against Google, following the European Commission (EC)’s Google Shopping decision of 27 June 2017.[8] In that decision, the EC found that Google had abused its dominant position in the market for general search services by favouring its own CSS in the display and positioning on Google’s general search results page, thereby diverting traffic that would otherwise have gone to competing CSSs to Google’s own service. The General Court (GC) and the European Court of Justice (CJEU) upheld the EC’s decision.[9]

The court held that Google continued the infringement even after the introduction of a compliance mechanism on 28 September 2017, at least until the end of February 2024.[10] Both claimants submitted damages reports. Put simply, both damages reports derive the respective claimant’s lost profits from the loss of traffic that was diverted by Google through its conduct. To determine each CSS’s share of the traffic diverted by Google, the reports rely on the actual development of the market shares of competing CSS (excluding Google Shopping).[11] The central counterfactual assumptions were that the overall market would have been the same size and that, counterfactually, Google would not have captured any portion of the diverted traffic.[12]

The court rejected this methodology because, first, the actual market shares were themselves tainted by the infringement and, second, it could not determine with sufficient certainty whether the claimants’ core counterfactual assumptions held.[13] Given the significant uncertainty as to how search results pages would have looked in the counterfactual world, the court considered a detailed counterfactual model infeasible.[14] It likewise rejected Google’s approach, which yielded zero damages.[15] Instead, the court applied its own methodology, in the form of a comparator market exercise, estimating damages by reference to the e-commerce market growth. In applying that methodology, the court[16]:

1. Determined the annual growth rate of e-commerce for the infringement and damages period.[17]
2. Established the baseline for the estimate: the claimant’s actual traffic in 2008, reduced by the average annual growth over the entire damages period.[18]
3. Projected that baseline forward based on e-commerce growth rates in subsequent years.[19]
4. Calculated hypothetical revenue by multiplying the average cost per click with the hypothetical traffic, then subtracted actual revenue.[20]
5. Deducted incremental costs as submitted by the claimant.[21]

On the one hand, the court’s approach is understandable – and welcome – in that, once it had found that harm must have occurred, it moved quickly and confidently to estimate the amount.[22]

On the other hand, it contains methodological flaws. Most notably, it disregards the CSSs’ actual performance except for the initial year. That penalizes CSSs that performed relatively well despite the adverse conditions created by Google’s conduct.

3. Judgment of Higher Regional Court of Stuttgart – bathroom fittings & fixtures cartel

The case concerned a price-fixing agreement among 17 manufacturers of bathroom fittings between 1992 and 2004 in various European countries. Taking a decisive approach, the Higher Regional Court of Stuttgart independently quantified damages in the bathroom fittings & fixtures cartel case, awarding the claimant €2.9 million plus interest, thereby exceeding the original claim value of at least €2.2 million.[23]

At the outset of its damages assessment, the Higher Regional Court of Stuttgart emphasised its broad margin of discretion. It stated that it had to adopt an approach that also complies with Article 17 of the Cartel Damages Directive, according to which “neither the burden nor the standard of proof required for the quantification of harm renders the exercise of the right to damages practically impossible or excessively difficult.”[24] The court highlighted that it was not obliged in every case to obtain expert evidence even if the parties had adduced such evidence.[25] The court rejected the claimant’s expert report as an insufficient basis due to an unreliable data base.[26] It also deemed further evidence-taking disproportionately burdensome for the case in hand.[27]

The court set out a five-step damages framework that can be applied in other cartel damages claims.

First, it articulated three steps for assessing the claimant’s damages:

1. Establish a cartel-related price effect (the occurrence of harm):

In the first step, the court determined whether the competition law infringement generally led to a noticeable price increase. This assessment established whether a price effect existed or whether the cartel remained ineffective.[28]

2. Set a benchmark range for typical cartel overcharges:

Where an effect is likely, overcharges typically would fall within a 5-25% margin according to the court. For this purpose, the court relied on the results of so-called meta studies on cartel damages. However, the court also examined whether special circumstances made a lower or higher price effect appear likely.[29]

3. Narrow the range based on the facts of the individual case:

For this exercise, the court particularly examined: the nature and duration of the collusion; the organisation of the cartel, including coordination, alignment of interests, and cartel discipline; the prevailing market conditions (market power, market concentration, and market dynamics); and the reaction on the demand side (including the market position of cartel outsiders, the international coverage of the cartel, the price elasticity of demand, and buyer power).[30]

These first three steps were followed by two further steps assessing pass-on effects:

4. Consider pass-on to the claimant:

The claimant was an indirect purchaser, so the court assessed whether, and to what extent, the overcharge was passed on to the claimant.[31]

5. Assess downstream passing-on:

Finally, the court examined whether further passing-on occurred downstream; in the case at hand, normative deterrence-related considerations precluded downstream passing-on.[32]

At first glance, the Higher Regional Court of Stuttgart’s estimate appears to fall within a line of discretionary, “freehanded” assessments by German courts – including the Regional Court of Dortmund – that have followed the Federal Court of Justice’s call for greater confidence in estimating damages.[33] On closer inspection, however, the Stuttgart court goes further. By employing a multi‑step, empirically grounded approach, it provides a higher degree of certainty.[34]

Especially in cases like the one decided by the Higher Regional Court of Stuttgart, where the claim volume is comparatively modest, such a pragmatic approach seems sensible, as it can address almost all of the criticisms against damages actions in competition disputes before German courts set out above. That said, in most cases it will scarcely be defensible to dispense entirely with expert evidence. While courts possess a broad margin of discretion in the quantification of damages, they remain under a duty to take all reasonable measures to secure probative evidence and to employ appropriate investigative tools where necessary. In competition damages actions – where quantifying damages typically hinge on complex economic relationships and effects – recourse to economic expert evidence will, as a rule, add material probative value. Given that such specialist expertise is seldom represented on the bench, the appointment or reliance on suitably qualified economic experts will be warranted in most cases.[35]

II. Outlook: Further reflections on quantification of damages in competition law damages actions

The recent judgments and the hearing show that there is no single, uniform method for quantifying antitrust damages, but three practical conclusions can be drawn.

First, courts should rarely decide competition law damages cases without economic expert evidence. There may be narrow exceptions – such as when the sums at stake are modest, as the Higher Regional Court of Stuttgart has suggested – but, in general, the added probative value of independent economic analysis will weigh heavily against dispensing with it.[36] This is underscored by the Regional Court of Berlin II’s Google Shopping judgment: in complex assessments and estimations, robust economic expertise is essential, and errors can be costly for both sides.

Second, courts have discretion to determine the level of effort they consider appropriate for the estimation of damages, and they should make use of it. Practice ranges from the Regional Court of Munich I’s weeklong hearing of a court expert to the Regional Court of Berlin II delivering its judgment on the day of the hearing. In between those extremes, courts can use procedural tools – such as engaging experts in an advisory role, as is often done in patent cases – to steer the process early, indicate what is and is not necessary, and save time and cost, potentially avoiding the need for a fully independent court estimate.

Third, every case is different and calls for a tailored approach; there is no universal solution. Within statutory limits, continually refined by higher-court jurisprudence, courts remain under a duty to develop methods that enable the swift and fair award of damages to victims of competition law infringements suited for the specific case. In this spirit, the approach of the Higher Regional Court of Stuttgart is particularly commendable.

[1] Examples of this criticism can be found, for instance, in Huttenlauch/Dengler/Voges, WuW 2022, 202 et seq.; 259 et seq.

[2] For a report on the proceedings before the Regional Court of Munich I, see Petrasincu, WuW 2026, 24. Author Richter participated in the hearing before the Regional Court of Munich I in the Trucks cartel as counsel for certain claimants. The judgments of the Regional Court of Berlin II concern damages actions brought by the comparison shopping services (CSS) idealo and Producto regarding Google’s continued infringement of Article 102 TFEU: Regional Court of Berlin II, judgement of 13.11.2025, 16 O 195/19, WuW 2026, 45 (idealo) and judgement of 13.11.2025, 16 O 275/24 (Producto). Both authors act for CSSs in parallel proceedings. The judgment in the bathroom fittings & fixtures cartel is Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38.

[3] See the report by Petrasincu, WuW 2026, 24 and the interview with Oldehaver in WuW 2026, 60.

[4] Oldehaver, WuW 2026, 60; Petrasincu, WuW 2026, 24.

[5] Petrasincu, WuW 2026, 24.

[6] Petrasincu, WuW 2026, 24.

[7] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 195/19, WuW 2026, 45 (idealo) and judgement of 13.11.2025, 16 O 275/24 (Producto). The two judgments contain essentially identical reasoning on the estimation of damages. For ease of reference, the paragraph citations that follow refer only to the Regional Court of Berlin II’s judgment in Producto.

[8] EC, decision of 27.06.2017, AT.39740 – Google Search (Shopping).

[9] GC, judgement of 10.11.2021, T-612/17, ECLI:EU:T:2021:763; CJEU, judgement of 10.09.2024, C-48/22 P, ECLI:EU:C:2024:726.

[10] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 71 et. seq.; 131 et. seq.; 158 et. seq.

[11] See the description of the respective claimant’s damages report Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), para. 274 and Regional Court of Berlin II, judgement of 13.11.2025, 16 O 195/19, WuW 2026, 45 (idealo), para. 299.

[12] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 274 et. seq.

[13] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 274 et. seq.; 236 et seq.; 244 et. seq.

[14] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 236 et. seq.

[15] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 218 et. seq.; 277.

[16] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 229 et. seq.; 278 et. seq.

[17] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 280 et. seq.

[18] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 284 et. seq.

[19] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 285 et. seq.

[20] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 287 et. seq.

[21] Regional Court of Berlin II, judgement of 13.11.2025, 16 O 275/24 (Producto), paras. 298 et. seq.

[22] Kersting concurs with this assessment, albeit without the criticism set out below in the text, WuW 2026, 27.

[23] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38. See for a summary and comment also Petrasincu, WuW 2026, 24, 25 and Galle, BB 2026, 276; Weitbrecht, NZKart 2016, 15 et. seq.; the claim is based on an infringement found by the EC in EC, decision of 23.06.2010, AT.39092 – Bathroom fittings & fixtures.

[24] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 82 et seq.

[25] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, para. 84.

[26] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 89, 92.

[27] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, para. 94.

[28] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 103, 108 et seq.

[29] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 104, 113 et seq., 128.

[30] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 105, 130 et seq., especially para 134.

[31] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 106, 225 et seq.

[32] Higher Regional Court of Stuttgart, judgement of 20.11.2025, 2 U 263/21, WuW 2026, 38, paras. 107, 265 et seq. According to the Federal Court of Justice, the passing-on defence is excluded for reasons of deterrence where downstream purchasers are unlikely to assert claims against the infringer. This particularly applies to dispersed, low-value losses, where purchasers are rationally disinclined to litigate. To prevent an unwarranted windfall for the infringer, the passing-on defence does not apply in such circumstances, Federal Court of Justice, judgement of 23.09.2020, KZR 4/19, para. 51 – Schienenkartell V.

[33] Federal Court of Justice, judgement of 28.01.2020, KZR 24/17, WuW 2020, 202, paras. 47 et. seq. – Schienenkartell II; Regional Court of Dortmund, judgement of 30.09.2020, 8 O 115/14 (Kart), WuW 2020, 619, paras. 143 et. seq.

[34] Petrasincu, WuW 2026, 24, 25.

[35] Regional Court of Munich I, judgement of 19.02.2021, 37 O 10526/17, WuW 2021, 303, para. 193: “Given the complex economic interrelationships and developments set out above, an expert report is, however, indispensable as a reliable basis for the court’s assessment of damages”, see also Petrasincu, WuW 2026, 24, 25.

[36] Galle, BB 2026, 276.