In the rail cartel case KZR 26/17, the German Federal Supreme Court did not permit the prima facie evidence applied by the lower courts. Thus plaintiffs must lead the full proof.
The applicability of the prima facie evidence leads to a substantial facilitation of evidence for the plaintiffs because they only have to prove the prima facie evidence. This shifts the burden of proof to the defendants, who must shake the appearance and prove themselves freely.
The Federal Supreme Court has decided that the plaintiff-friendly prima facie evidence is not applicable, but that the plaintiffs must provide full evidence. This leads to a substantial increase in the costs for plaintiffs.
The written version of this judgment has not yet been published and is eagerly awaited by antitrust damages lawyers.
This decision may also affect cases in Austria to which Section 37 c (2) KartG does not apply because either the damage occurred before 26 December 2016 (Section 86 (9) KartG) or the cartel did not exist between competitors.
We will keep you informed as soon as the written copy of the judgment has been published.