High costs for economic expert opinions and complex proceedings deter many injured parties, despite overall losses amounting to billions. This restraint, described as rational apathy, means that infringements of competition law frequently remain without consequences for the infringers. Bundling the damages claims of several injured parties could provide an effective solution, but until now this has often failed due to legal hurdles.
The recent CJEU ruling and its significance
In its most recent ruling on the bundling of damages claims, the Court of Justice of the European Union (CJEU) (judgment of 28 January 2025, C-253/23) has now set important guidelines. The Court held that national provisions – specifically the German Legal Services Act (Rechtsdienstleistungsgesetz, RDG) – may not result in a general prohibition of the fiduciary assignment of cartel damages claims to specialised debt collection service providers. According to the Court, the permissibility of such bundling depends crucially on whether national law provides other effective mechanisms for collective enforcement or whether individual proceedings are genuinely practicable for the injured parties.
Up to now, German courts have regularly rejected fiduciary assignments to debt collection providers on the grounds that they infringed the RDG. Following the CJEU’s ruling, such blanket rejections are no longer possible. Courts must now examine in concrete terms whether effective legal protection is otherwise available. If such alternatives are lacking, EU law no longer stands in the way of the bundled enforcement of cartel damages claims through debt collection companies.
Consequences for practice
The CJEU’s decision obliges German courts to carry out a differentiated review. As a result, it will in future be significantly easier for companies to assert damages claims in bundled form, since at present there are no comparably effective alternatives. This opens the door in particular for small and medium-sized enterprises to participate in damages actions without being exposed to disproportionate cost risks.
For potential claimants, the prospects for litigation funding also improve considerably. Bundled claims are far more attractive for specialised litigation funders, since they involve larger claim volumes and thus better justify litigation costs. At the same time, the individual cost risk for the participating companies is substantially reduced.
Conclusion and outlook
Companies should act at an early stage when a possible cartel infringement by their suppliers comes to light. It is essential first of all to document and preserve potentially cartel-related losses with care, for example by collecting relevant invoices, price lists and contractual documents. This will make the burden of proof much easier later and significantly increase the chances of successful recovery.
In addition, it should always be considered whether litigation funding is feasible and worthwhile. Specialists in this field enable companies to enforce their rights without risk, as they assume costs and risks in return for a success-based share.
The CJEU’s decision provides new legal clarity for the bundling of cartel damages claims. In particular, the previously much-rejected models of collective claim assignment could now be more readily enforceable. Companies should take advantage of this new legal opportunity and no longer forgo the enforcement of their damages claims.
It remains to be seen how the German courts will implement the CJEU’s guidance in detail. It is already apparent, however, that the bundling of damages claims through specialised providers will gain new momentum. Companies that act early and with proper preparation will have far better chances of obtaining effective compensation for their losses.
For individual advice and support in assessing your claims and in selecting appropriate legal strategies, our firm is of course available to you at any time.