OLG Stuttgart introduces a novel approach to cartel damages estimation in Germany

On 20 November 2025, the Higher Regional Court of Stuttgart (OLG Stuttgart) issued a judgment in an antitrust damages case (Case No. 2 U 263/21) concerning the bathroom fittings and fixtures cartel. The infringement involved price-fixing agreements among manufacturers, harming purchasers. The European Commission had previously imposed fines in its decision of 23 June 2010 (COMP/39.092) for the cartel period from 1992 to 2004.

 

A changing landscape in Germany

Traditionally, cartel damage litigation in Germany involved detailed economic evidence written by experts. This made litigation costly, lengthy and uncertain.

Recent rulings by the German Federal Court of Justice (BGH) in the truck cartel cases signaled a shift towards a more pragmatic and potentially claimant-friendly approach: courts may and shall estimate damages based on available indications rather than exhaustive econometric proof. This trend aims to make private enforcement more effective, but it also raises questions about legal certainty, methodological rigor and a de facto shift of burden proof.

 

OLG Stuttgart’s novel approach

The Stuttgart court is among the first higher courts trying to operationalise this shift. It developed a five-step methodology for estimating cartel-related overcharges, notably dispensing with case-specific economic analyses:

• The claimant’s regression analysis was dismissed due to methodological flaws.
• The court declined to commission an expert report, citing “serious doubts” about the reliability of regression models, which often yield disputed results.
• Instead, the court relied on meta-studies (including Oxera) on overcharges in sales cartels, identifying a median overcharge of 15% and establishing a “rule corridor” between 5% and 25%.
• To determine the position within this corridor, the court primarily relied on the findings set out in the Commission’s fine decision.

Applying these principles to the findings of the Commission’s decision, the court ultimately awarded a 17.5% overcharge, exceeding the claimant’s request of at least 13.56%.

 

The five-step methodology

1. Establishing a cartel-related price effect
Determine whether the infringement likely caused a noticeable price increase, considering the general presumption that cartels typically lead to higher prices.

2. Positioning within a rule corridor
If a price effect exists, assume the overcharge falls within a 5-25% corridor, adjusting for exceptional circumstances.

3. Refining the estimate
Assess case-specific factors (duration, organisation, market conditions, buyer reactions) to narrow the range.

4. Passing-on to the claimant
Examine whether the claimant negotiated prices with independent market actors and to what extent the overcharge was passed on.

5. Passing-on to customers
For commercial claimants, consider any benefits from passing on the overcharge to their own customers.

The court itself acknowledged the novelty of its method and allowed an appeal to the BGH, signaling that further clarification is needed.