
The saw on the Legal Services Act
Christian Kersting, director of Heinrich Heine University’s Institute for Competition Law, analyses the ECJ ruling in case C-253/23 – ASG2 (ECLI:EU:C:2025:40). The case, originating from the Landgericht Dortmund, deals with an issue in competition law damages claims: Under what circumstances can plaintiffs assign their claims to a third party? The matter became relevant in a stand-alone action brought by sawmills in Germany against the Land of North-Rhine Westphalia – they seek damages after an (alleged) infringement of antitrust rules.
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- Background
Cartel damages litigation is complex and costly, so that it is hardly worthwhile to sue for small amounts of damages individually. Just think of the cartels that have affected almost everyone: Sugar, coffee, beer. Which end consumer has claimed damages here? The trucks cartel is also likely to have led to price increases for end consumers who purchased goods that were transported by truck. Has anyone filed a lawsuit here? It’s simply not worth it. But even at the higher market levels, individual lawsuits are often not worthwhile, so that allegedly injured parties – due to the lack of availability of collective redress measures (vgl. LG Dortmund, order of 13 March 2023, 8 O 7/20 (Kart), NRWE para. 63 et seqq., 69 et seqq. = BeckRS 2024, 5354 para. 25 et seqq., 28 et seqq.) – resort to bundling lawsuits in order to save costs by taking joint action.
It has by no means been finally clarified in German law whether this bundling of claims is permissible in the context of assignment models (LG Dortmund, NRWE para. 63 et seqq. = BeckRS 2024, 5354 para. 25 et seqq.). Defendants have successfully defended themselves against this time and again. As a result, courts have held assignments to be null and void, so that the claims remained with the assignors and were time-barred there (see the references provided by LG Dortmund, NRWE para. 63 et seqq. = BeckRS 2024, 5354 para. 25 et seqq.). Therefore, if there are no collective redress options and the assignment model is not available to the injured parties, the question arises as to how injured parties can effectively enforce their rights at all. This is the background to the referral proceedings of the Dortmund Regional Court in the ASG2 case.
- Questions referred to the ECJ
In its order for reference, the Regional Court of Dortmund first emphasises that the assignment model is inadmissible, at least in the stand-alone case (NRWE para. 63 et seqq. = BeckRS para. 25 et seqq.). It then carefully demonstrates in detail that “there are no other admissible and equally suitable options for enforcing claims for mass damages/scattered damages caused by a competition law infringement […] in Germany” (NRWE para. 69-104 = BeckRS para. 28-38). The court is thus faced with a situation in which claimants in Germany have no effective way of enforcing their claims rooted in EU law, which, in the opinion of the court, violates the principle of effectiveness under EU law and the principle of effective legal protection (NRWE para. 110 = BeckRS para. 42). The regional court therefore refers the following questions to the ECJ for a preliminary ruling:
- Is EU law, particularly Article 101 TFEU, Article 4(3) TEU, Article 47 of the [Charter], and [point 4 of Article 2] and [Article 3(1)] of [Directive 2014/104] to be interpreted as precluding an interpretation and application of the law of a Member State which has the effect of prohibiting a person who may have suffered harm by an infringement of Article 101 TFEU – established, with binding effect, on the basis of Article 9 of [Directive 2014/104] or the national provisions transposing that article – from assigning on a fiduciary basis his or her claims for compensation – particularly in cases of collective or scattered harm – to a licensed provider of legal services, so that that provider can claim together with the claims of other alleged injured parties, by means of a follow-on action if other equivalent legal or contractual possibilities for consolidating claims for damages do not exist, in particular because they do not allow a judgment requiring performance [of payment of damages] to be sought, [or] if they are not practicable for other procedural reasons or are objectively unreasonable for economic reasons, with the consequence, in particular, that it would be practically impossible, or in any event excessively difficult, to bring an action for damages for a small amount?
- Is EU law in any event [to] be interpreted in this way if the claims for damages at issue have to be pursued without a prior decision on the alleged infringement from the European Commission or national authorities that has a binding effect within the meaning of national provisions based on Article 9 of [Directive 2014/104] (known as a “stand-alone action”), if other equivalent legal or contractual possibilities for consolidating civil law claims for damages do not exist for the reasons already set out in question 1, and, in particular, on the contrary, an action based on an infringement of Article 101 TFEU would not be brought, either via public enforcement [or] via private enforcement?
- If at least one of those two questions is answered in the affirmative, must the relevant provisions of German law remain unapplied if an interpretation which complies with EU law is ruled out, which would have the consequence that assignments [of claims for compensation] are in any event effective from that point of view and would render effective enforcement of law possible?
- Decision of the ECJ
At first glance, these three questions can only be answered in the affirmative from the perspective of European law. It goes without saying that national law cannot undermine rights granted under European law by not providing an enforcement mechanism. Of course, in such a case, the primacy of European law must mean that the corresponding provisions of national law must remain unapplied. However, the ECJ cannot and will not make it quite that simple. If it answers these three questions in the affirmative without further ado, this not only undermines the decision of the legislator of the directive not to prescribe any methods of collective redress, but also results in a considerable interference with national procedural law. As a result, the ECJ is faced with the unpleasant task of determining in abstract terms when national procedural law is insufficient to guarantee the effective enforcement of rights granted at European level. Ultimately, this requires an overall assessment of national law, which the ECJ can hardly undertake. It is therefore not surprising that the ECJ is extremely cautious.

- First question regarding the follow-on situation
Firstly, the ECJ refuses to deal with the first question, considering it to be inadmissible. Even if the assessment of the relevance of the question is in principle a matter for the referring court alone, the ECJ can refuse to answer it “where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose” (C-253/23 para. 39 et seqq.). This, according to the ECJ, was the case here. The decisive factor for the ECJ is that there is no binding effect in the case referred, so that it is precisely not a follow-on action, but a stand-alone action (para. 36 et seqq., para. 43 et seqq.). It thus agrees with Advocate General Szpunar, who had also rejected the Federal Cartel Office’s theory of a hybrid follow-on action (Opinion para. 59). The ECJ does not go into this any further. Indeed, the first question does deal with the situation of a follow-on action, which does not exist in the case referred by the Regional Court of Dortmund.
- Second and third question regarding the stand-alone situation
The ECJ deals with the second and third questions together. Both concern the situation of a stand-alone action.
- Admissibility
Since the case referred concerns a stand-alone situation and the second question is aimed at determining what requirements European law places on the enforcement mechanisms in national law in these cases, the ECJ has no doubt that the second (and thus also the third) question is admissible. The ECJ only addresses the defendants’ objections to the extent that they assert that the questions of the Dortmund Regional Court are based on incorrect premises.
This aspect is interesting because it will ultimately decide the case: does German law make the enforcement of minor damages practically impossible or excessively difficult? If this is answered in the affirmative, the second and third questions will also have to be answered in the affirmative. This is because European law must oppose such an interpretation, which must then lead to the inapplicability of the corresponding provisions of national law if no other interpretation in conformity with EU law is possible. If the answer is in the negative, everything is fine and there is no need for action (even if the questions will also have to be answered in the affirmative in this case). What is particularly difficult, however, is the fact that this aspect is two-faced. On the one hand, it is of course a question of national law as to what possibilities exist for enforcing competition law damages claims, whether and to what extent and under what circumstances assignments are permissible for bundling claims, etc. On the other hand, the assessment of whether the enforcement mechanisms provided by national law are sufficient, whether they enable the effective enforcement of rights granted under EU law or make their enforcement practically impossible or excessively difficult, is a question of European law. The first question must be answered by the national courts, the second question can only be answered by the ECJ. This differentiation is missing in the judgement, which we will come back to later.
In the context of admissibility, the ECJ does not recognise that the objections raised by the defendants (C-253/23 para. 55) concern both the premises of national law and the assessment under European law. It rightly does not see the objections as a problem of admissibility. In this respect, it emphasises that since “the referring court alone has jurisdiction to interpret and apply national law, the Court must take account of the legislative context, as described in the order for reference, in which the questions put to it are set” (para. 57). The presumption of relevance, which applies to the questions referred, “cannot be rebutted by the mere fact that one of the parties to the main proceedings disputes certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject matter of the dispute in the main proceedings depends” (para. 57). That is correct and is sufficient to affirm the admissibility of the action.
However, to the extent that the ECJ states that the premises of the referring court, summed up in para. 55, are to be assessed by the referring court alone and are not to be reviewed by the ECJ (para. 58), it overlooks the fact that these premises contain assessments under EU law with regard to the question of ‘rendering practically impossible or excessively difficult’. The ECJ must indeed review these assessments. Although this belongs in the merits, these statements in the admissibility already set the wrong tone for the merits where there is a lack of clear statements in this regard (see immediately below).
- Merits
- Standard of review
The discussion of the merits begins with general statements summarising the previous case law on primary law (C-253/23 para. 60-63). The ECJ then summarizes the relevant secondary law and emphasises that the CDD neither requires a class action mechanism nor regulates the conditions under which the assignment of competition law damages claims is valid (para. 65-69).
From this, the ECJ concludes (C-253/23 para. 70-75) that both the introduction of a group action mechanism and the assignment of cartel damages claims for the purpose of bringing a group action are not part of the modalities for asserting a claim for damages regulated by the CDD (para. 70). This then leads it back to its established case-law according to which “in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed rules governing the exercise of the right to claim compensation for the harm resulting from infringements of competition law, in compliance with the principles of equivalence and effectiveness” (para. 71). This opens the way for the Court of Justice to answer the questions referred solely on the basis of the principle of effectiveness (para. 72). However, it supplements the use of the principle of effectiveness by stating that “the Member States are, however, responsible for ensuring that, pursuant to the first paragraph of Article 47 of the Charter, the right to effective judicial protection is effectively protected in every case” (para. 75).
The ECJ has thus established the standard of review. The provisions of the CDD are not relevant, in particular – contrary to the opinion of the Dortmund Regional Court (NRWE para. 110-133 = BeckRS para. 42-57) – Art. 2 No. 4 CDD is not relevant (C-253/23 para. 69 et seq.). National law must therefore be measured against the principle of effectiveness under primary law in conjunction with the right to effective judicial protection under Article 47(1) of the Charter of Fundamental Rights.
- Review under primary law
The subsequent examination on the basis of primary law is characterised by great restraint on the part of the ECJ. On the one hand, it must regard it as contrary to Union law if the enforcement of rights conferred by Union law is made practically impossible or excessively difficult. On the other hand, the ECJ does not want to interfere lightly with the procedural law of the Member States. The ECJ is seeking a path between these two poles.
- Is the national court competent to review?
Basically, the answer to the questions referred lies in the questions themselves. The Regional Court of Dortmund carefully analysed German law and came to the conclusion that there are no alternatives to the assignment model under German law (NRWE para. 69-104 = BeckRS para. 28-38). Based on this analysis, the ECJ must answer the questions referred in the affirmative. This applies all the more as the ECJ has already stated in the examination of admissibility that the premises of the referring court are to be assessed by the referring court alone and are not to be reviewed by the ECJ (C-253/23 para. 58) and it expressly repeats this statement again in the examination of the merits: “In that regard, it should be noted that it is for the referring court alone to determine whether the interpretation of national law excluding, in disputes relating to competition law, a group action for collection has the effect of making it impossible or excessively difficult to exercise the right to compensation which EU law confers on persons harmed by an infringement of competition law and of depriving them of effective judicial protection.” (para. 82).
However, as already explained above (supra III.2.a)), the ECJ overlooks the fact that the assessment of the national court with regard to the question of ‘making it practically impossible or excessively difficult’ does not necessarily comply with the requirements of the principle of effectiveness under EU law and that it is up to the ECJ to make the final binding decision. The ECJ would therefore have to answer the question of whether possible alternatives under German law fulfil the requirements of EU law. Only if this is not the case would it be contrary to EU law not to provide an assignment model. This was also the core of the Dortmund Regional Court’s questions: is my assessment of national German law that it makes it practically impossible or excessively difficult to assert competition law damages claims in the aforementioned cases correct in terms of EU law?

However, the ECJ does not answer these questions. Instead, it quotes in detail the statements of the parties to the main proceedings with which they attempt to challenge the findings of the Regional Court of Dortmund (C-253/23 paras. 78-81). The ECJ correctly rejects these as irrelevant (para. 82). However, it refrains from continuing its examination on the basis of the facts established by the Regional Court of Dortmund. Correctly, the ECJ would now have to examine whether the conclusion of the Regional Court of Dortmund that there is no alternative to the assignment model under German law that would allow the enforcement of cartel damages claims in accordance with the principle of effectiveness is correct from the perspective of EU law. To do so, it would have had to analyse German law (as determined by the Regional Court of Dortmund) in depth and as part of an overall assessment. The decision not to do so may be understandable. Not only could this appear overbearing, but the ECJ would also expose itself to the risk of being accused of a lacking or inaccurate understanding of German law. On the other hand, the ECJ buys this relief by also appearing to place the conclusions of EU law in the hands of the national court. However, it does not seem to want to take this step consistently either:
- Guidance provided by the ECJ despite the national court’s competence
Despite placing the assessment of the compliance of national law with the EU law principle of effectiveness in the hands of the national court, the ECJ provides the referring court with a large number of instructions on the application of the principle of effectiveness under EU law in this context. However, it is noticeable that some of these have already been taken into account by the referring court. This applies first of all to the introductory remark that national law must be assessed in its entirety (C-253/23 para. 83). The Regional Court of Dortmund recognised and took this into account (NRWE para. 142 = BeckRS para. 62). The referring court has also not failed to recognise that, in order to find incompatibility of German law with European law, it must show that there is no alternative to the assignment model in question (class action collection) (C-253/23 para. 84, 87 and NRWE para. 143 et seqq. 69 et seqq. = BeckRS para. 63 et seqq., 28 et seqq.).
More significant are the ECJ’s explanations that, although the possibility of bundling claims, especially in stand-alone actions, facilitates the enforcement of claims (para. 85), the complexity of actions for damages and the associated procedural costs do not “do not in themselves support the conclusion that the exercise of the right to compensation in an individual action would be rendered practically impossible or excessively difficult” (para. 86). The ECJ continues to explain that it “is only if, following an assessment of all the legal and factual elements of the case, the referring court were to identify that specific elements of national law preclude the bringing of those individual actions that the referring court could, as the case may be, reach such a conclusion.” (C-253/23 para. 85 et seq.).
Even if the ECJ places this statement in the context of the referring court’s sole power of decision, it does, however, in essence, impose requirements of the principle of effectiveness under EU law, which are (naturally) not open to an ultimately binding judgement by the national court. Unfortunately, these requirements remain cryptic and do not appear consistent in themselves. It is of course true that the bundling of claims facilitates the enforcement of claims for damages. It is also true that a facilitation does not necessarily mean that without it individual actions would be practically impossible or excessively difficult. However, the ECJ goes beyond this statement and emphasises that the complexity of cartel damages actions and the associated procedural costs cannot in themselves support the conclusion that the enforcement of damages claims would be practically impossible or excessively difficult (C-253/23 para. 86). “Yes, but what else?”, one might ask. The ECJ can hardly have meant that the procedural costs, which are essentially caused by the complexity of the matter, are irrelevant. Because if costs are irrelevant, then of course no individual action is practically impossible or excessively difficult. Then – forgive the argumentum ad absurdum – the end consumer can also sue individually for his €1.50 loss from the sugar cartel and take a cost risk that runs into the thousands, tens of thousands or hundreds of thousands of euros. The ECJ cannot have seriously meant that.
Since the ECJ demands a case-by-case assessment of all legal and factual circumstances in the following sentence, this can be understood as an invitation not to make any general statements on the compatibility of national law with Union law, but to always limit oneself to the specific individual case (C-253/23 para. 86). Yet, it is of course impossible to prevent individual case-related statements from being generalised and, in any case, from having to be applied to similar cases. The question also arises as to which other criteria, together with the criteria of complexity and procedural costs, can be sufficient. After all, irrespective of such other criteria, if opportunities and risks cannot be brought into an economically viable relationship, then the enforcement of claims is practically impossible or at least excessively difficult. A very detailed, case-by-case assessment, which only allows for generalisation to a limited extent, would further worsen this relationship between opportunities and risks to the detriment of the claimants. The associated loss of predictability would immensely increase the litigation risk for the claimants. They would then always have to reckon with the risk that the assignments are null and void after all and that the assignors’ claims are therefore time-barred. This cannot be compatible with the principle of effectiveness. Ultimately, the call for a case-by-case assessment can only be seen as a warning from the ECJ to national courts to exercise restraint and not to assume lightly that provisions of national procedural law are incompatible with EU law and to only consider this as a last resort.
- Legal consequences of incompatibility with Union law
With regard to the legal consequences of German law being incompatible with the EU law principle of effectiveness, the ECJ unsurprisingly comes to the conclusion that German law must be disapplied in this case (C-253/23 para. 90 et seqq.). It is interesting to note that the ECJ’s wording encourages the Regional Court of Dortmund to re-examine the matter. It not only points out the necessity of an interpretation in conformity with EU law (para. 91), but also emphasises once again that the provisions of national law can only be disapplied “if no interpretation of those provisions in conformity with EU law proves possible” (para. 93). This is a superfluous emphasis of the self-evident, which only makes sense because the ECJ places it in the context of the doubts of some parties to the proceedings about the findings of the referring court (para. 92). Ultimately, the ECJ asks the referring court to examine very carefully once again whether it is really certain that there is no alternative to disapplying the provisions of German law.
- Limited scope of inapplicability?
Even in this case, the ECJ wants to limit the consequences for German law as much as possible. It had already previously emphasised that even if class action collection was the only procedural route for the sawmills concerned to enforce their claims for damages, the inapplicability of national law was limited. The finding that class action collection was the only procedural avenue was “without prejudice to the application of national provisions governing, in the interests of the protection of individuals, the activity of the providers of such collection services in order, in particular, to guarantee the quality of those services and the objective and proportionate nature of the remuneration received by such providers, and to prevent conflicts of interest and abusive procedural conduct.” (C-253/23 para. 87).
The ECJ thus pays tribute to the concerns of the national legislator, which it pursues with the Legal Services Act (“Rechtsdienstleistungsgesetz”, “RDG”), and recognises them as legitimate. However, it remains unclear what consequences are to be drawn from this. If the ECJ had been of the opinion that these regulatory concerns should prevail over the right to compensation granted under EU law, i.e. that provisions should be applied that make the enforcement of this right practically impossible or excessively difficult, then it should have answered the questions referred in the negative. However, it did not do so, even though the Regional Court of Dortmund had raised the question of justification (NRWE para. 158 et seqq. = BeckRS para. 73 et seqq., see below III.3.).
Ultimately, this is an appeal by the ECJ to the referring court to treat the inapplicability of national law as cautiously as possible and to respect the regulatory concerns of the national legislator. The inapplicability of national law should therefore only be assumed as far as absolutely necessary and the concerns of the national legislator should be respected as far as possible. This raises interesting questions about the starting point for assessing inapplicability:
- Starting point for assessing inapplicability
Of course, it is obvious to start with the provisions of the Legal Services Act and either interpret those provisions in accordance with EU law or disapply them if they are in conflict with the assignment model. However, an overall assessment of German law is necessary (C-253/23 para. 83). There is no compelling reason to start with the Legal Services Act. One could just as well consider disapplying the restrictions on representative actions or disapplying provisions that restrict the model declaratory action procedure to claims by consumers. In the end, the national court will have to find the gentlest way. If one wants to stick with the assignment model and its restriction by the Legal Services Act, one can also consider starting with the legal consequences of an infringement of provisions of the Legal Services Act. After all, it does not have to be set in stone that violations of the Legal Services Act necessarily lead to the nullity of the assignment, which regularly entails the problem that the assignor’s claims are time-barred. It would also be conceivable to read requirements to ensure the quality of the debt collection services into the contracts by way of a supplementary interpretation of the contract, to allow the defence of Section 242 German Civil Code (“Bürgerliches Gesetzbuch”, “BGB”) against excessive remuneration claims or to establish claims for damages by the assignor in the event of existing conflicts of interest. All of this would be possible without insisting on the invalidity of the assignments. In this respect, German law could either be interpreted in accordance with EU law or be disapplied.
- Is it possible to justify the practical impossibility of enforcing competition law?
In its order for reference, the Regional Court of Dortmund also discussed whether the practical impossibility or excessive difficulty of enforcing cartel damages claims can be justified by way of exception. It raises the question of whether this justification can arise from the objectives of the national law provisions restricting effectiveness, i.e. the Legal Services Act (RDG) (NRWE para. 158 et seqq. = BeckRS para. 73 et seqq.). The ECJ does not address this and thus implicitly denies the possibility of justification. In view of the importance of the interest in enforcing the cartel prohibition emphasised by the referring court and in view of the significance of the restriction, this can be readily accepted.
- Conclusions regarding the follow-on situation
The ECJ does not comment on the follow-on situation, as it has already deemed the first question inadmissible due to its lack of relevance to the dispute in the main proceedings (see supra III.1.). However, it can be deduced from its comments on the second and third questions how the first question would have to be answered if it were to arise in a future case. In this case too, European law is likely to stand in the way of an interpretation and application of national law that makes it practically impossible or excessively difficult to assert and enforce a claim for competition law damages in a follow-on situation.
Whether this is the case will also be left to the decision of the national referring court in this case. Here too, the ECJ will insist on an extremely careful examination. The fact that, in the opinion of the ECJ, “in particular” mechanisms for bundling individual claims “facilitate the bringing of stand-alone actions for damages” will certainly also play a role here (C-253/23 para. 85). It may be inferred from this that the ECJ takes a less favourable view of facilitation in follow-on situations. This may lead it to the conclusion that there is no compelling need to bundle claims in these situations.

However, in view of the high complexity of determining the amount of damages and the associated high costs, this cannot be considered decisive. It is therefore conceivable, also in the case of follow-on actions, that the interpretation and application of national procedural law may result in the enforcement of the claim for damages being rendered practically impossible or excessively difficult. If in that case no interpretation in conformity with EU law is possible, national law will have to be disapplied.
- Conclusion
1) The judgement of the ECJ is correct. An interpretation and application of German law that makes the enforcement of cartel damages claims practically impossible or excessively difficult is incompatible with Union law. Insofar as no interpretation in conformity with Union law is possible, the relevant provisions of German law must be disapplied.
2) What is striking about the ECJ’s judgement is that it wants to place the assessment of whether the national law provisions make the enforcement of competition law damages claims practically impossible or excessively difficult in the hands of the referring court. This is not convincing. Of course it is for the referring court to establish the facts as to how national law is to be understood. However, it must be for the ECJ to assess whether, from the perspective of Union law, the enforcement of rights under Union law is rendered practically impossible or excessively difficult.
3) The ECJ largely avoids this task in the present judgement. However, it does provide the national judge with some guidelines. Here, it does not appear to be very helpful to find that “the complexity and the procedural costs […] do not in themselves support the conclusion that the exercise of the right to compensation in an individual action would be rendered practically impossible or excessively difficult” (para. 86). If this is meant seriously, the emphasis on the principle of effectiveness in the answer to question 2 is ultimately meaningless because the ECJ would then close the way to the application of the principle.
4) The judgement is only of limited help to the Regional Court of Dortmund as the referring court. It now knows that the only thing that matters is primary law. The ECJ has reaffirmed the principle of effectiveness. At the same time, the ECJ has made it very clear between the lines that it does not want to interfere with the procedural law of the Member States and that the referring court should consider carefully whether this is really necessary. However, the referring court has already done this in its order for reference. It may now take a second look and scrutinise. However, it will hardly be able to come to a different conclusion. Because at the end of the day, the decisive factor is whether the opportunities and risks of enforcing a claim can be brought into an economically viable relationship.
5) The assessment now to be made by the Regional Court of Dortmund as to whether German law is designed, in an overall assessment, in such a way that it makes the enforcement of cartel damages claims practically impossible or excessively difficult is a question of EU law. The ECJ should therefore have undertaken this task. It was included in the questions referred. It did not do so because it did not trust the findings of the Regional Court of Dortmund in this regard.
6) Any new decision by the Regional Court of Dortmund in this regard will be challenged by the losing party on the grounds that the Regional Court applied the principle of effectiveness under EU law either too laxly or too strictly. A new referral procedure will then be necessary. It may make sense to have this referral made by the Federal Court of Justice because then – at least from a practical point of view – there can no longer be any dispute about how German law is to be understood.
7) However, it would make much more sense for the legislator to (finally) take action now. The ECJ can hardly carry out a comprehensive overall assessment of German law in order to determine in a convincing manner whether it satisfies the principle of effectiveness under primary law. This will also be the reason why it has avoided this task in the present judgement. Furthermore, it is also not the task of the ECJ (nor of the national court) to determine which national law provisions should be disapplied in the face of a multitude of possible starting points in national law. After all, this amounts to a change in the law. However, it is up to the national legislator to determine whether the Legal Services Act (RDG) should be amended, a class action introduced or other changes made to the law. As a result, the ECJ has now presented the German legislator with a choice: ensure that the claim for damages granted under EU law is effectively enforceable or accept that this task is taken over by the courts.
8) The German legislator should take this to heart. At the very least, it should clarify that the assignment model is possible in both follow-on and stand-alone situations. However, it would be more appropriate to finally provide for a genuine class action in cartel damages cases as well. On the one hand, this would really help all injured parties in mass and scattered damage cases, including the end consumers in the sugar, coffee and beer cartel. Secondly, it would probably also alleviate the problem of damage localisation in cases of possible passing on of damages. Otherwise, this threatens to become the next test case for the effectiveness of German procedural law.
Professor Dr Christian Kersting, LL.M. (Yale) holds a chair at Heinrich Heine University Düsseldorf and is the director of the Institute for Competition Law.
3 thoughts on “The saw on the Legal Services Act”
Mir war nach Lektüre des Urteils nicht klar, dass der EuGH die gestellten Fragen beantwortet hat.
Im Zeitpunkt der Vorlage legten die Instanzgerichte das RDG noch unterschiedlich aus. Seither sind die Landgerichte, die mit einem Verweis auf das RDG zahlreiche Verfahren erledigten, von ihren bisherigen Positionen abgerückt und folgen nunmehr ausdrücklich der Auslegung des BGH (die auch der Bundesgesetzgeber teilt). Einer Nichtanwendung des nationalen Rechts bedarf es also nicht, vielmehr lässt sich das RDG im Sinne einer Wirksamkeit der Abtretungen unionsrechtskonform auslegen. Bereits im Zeitpunkt der mündlichen Verhandlung vor dem EuGH lag die Entscheidung des OLG München vor, der zufolge auch im Kartellschadenersatz Ansprüche abgetreten und gebündelt werden können. Auch das OLG Stuttgart hat entsprechend entschieden. Das Unionsrecht spricht für die Möglichkeit der Bündelung; entsprechend auszulegen ist das RDG aber auch ohne diesen Rückgriff.
Tonio Walter schrieb zur Einzelfallabwägung (Kleine Rhetorikschule für Juristen, 2. Aufl., 2017, S. 151 f.): >>Ich betrachte es daher als Alarmsignal, wenn in einer gerichtlichen Entscheidung die fast schon übliche Floskel auftaucht, dass sich vorliegender Fall einer „schematischen Lösung“ verschließe und man das Ergebnis nur bei „wertender Betrachtung“ finden könne, und zwar „unter Berücksichtigung aller Umstände des Einzelfalls“. Nun trifft es selbstverständlich zu, dass man eine Regel – nichts anderes ist ein Schema – nur anwenden darf, wenn ihr Tatbestand vollständig vorliegt und das Ergebnis keinen Anlass gibt, die Regel zu überdenken. Aber der Verzicht auf eine Regel zugunsten einer Wertung ohne vorher bestimmten Maßstab ist nicht weniger als der Verzicht auf Gerechtigkeit und Rechtssicherheit. Ursache ist ein Mangel an Lust oder Zeit, etwas rechtlich zu Ende zu denken. Nur die Form ist rhetorisch gekonnt: „schematisch“ hat einen schlechten Beigeschmack im Sinne von „blind“, obwohl es um regelgerechte, systemverträgliche, vorhersehbare Lösung geht. Und die Berücksichtigung „aller Umstände des Einzelfalles“ erweckt den Eindruck akribischer Detailarbeit zum Wohle der Kundschaft, obschon man lediglich einem Ergebnis Vorrang vor seiner Begründung einräumen will.<<