Federal Court of Justice on the initial jurisdiction of an antitrust senate in appeal proceedings

According to a recent decision by the Federal Court of Justice, the jurisdiction of a special senate - in this case for antitrust cases - in appeal proceedings is also conceivable if a general civil law dispute was conducted at first instance. This applies to proceedings in which aspects relevant to antitrust law are asserted for the first time in the second instance, provided that they can be taken into account in civil proceedings, in particular if they are not late. In order to effectively lodge such an appeal with the Higher Cartel Court, the antitrust aspects must be raised within the time limit for filing the grounds of appeal. In individual cases, however, the admissibility of the appeal may also result from uncertainty regarding the jurisdiction of the general court of appeal.

The decision of the Federal Court of Justice (BGH) dated 09.04.2024 (KZB 75/22) concerns proceedings between transport companies in a transport association and the management of the transport association. The transport companies had each concluded a cooperation agreement and a revenue sharing agreement with the transport association. One of the transport companies filed a lawsuit against the termination of these agreements by the transport association; the lawsuit was dismissed. The Court of Appeal dismissed the plaintiff's appeal as inadmissible because it had been lodged and substantiated with the Cartel Court, which had no jurisdiction.

The BGH upheld the appeal on points of law lodged against this. The right of the plaintiff transport company to guarantee effective legal protection under Article 2 (1) of the German Basic Law in conjunction with the rule of law was violated. The plaintiff had submitted the appeal to the Higher Regional Court with jurisdiction pursuant to Sections 91, 92, 93, 87 GWB, which now had to decide on the existence of an antitrust case and, if necessary, refer the legal dispute to the competent court of appeal.

Up to the expiry of the deadline for filing the grounds of appeal, the case was not a civil law dispute within the meaning of Section 87 ARC, as a main or preliminary question of antitrust law (Section 87 sentence 1 or sentence 2 ARC) did not play a role in the submission of the court of first instance, i.e. the legal consequence sought by the action was neither derived from an antitrust law provision nor was it dependent on the provisions mentioned in Section 87 ARC. This depends on the parties' factual submissions, not on whether a party invokes antitrust law norms. In the case decided, there had been a lack of factual submissions at first instance that would have indicated that the plaintiff had relied on facts that complied with antitrust standards.

Furthermore, submissions made after the expiry of the deadline for submitting the grounds of appeal could no longer justify the jurisdiction of the Cartel Court. In principle, however, a civil law dispute could only become an antitrust matter in the second instance due to the substantive connection of jurisdiction under antitrust law - if aspects relevant to antitrust law within the meaning of Section 87 ARC are asserted for the first time in the second instance and can be taken into account in accordance with Sections 529, 531 ZPO. However, this requires that the appellant, in accordance with Section 520 (3) sentence 2 ZPO, submits the circumstances relevant to antitrust law with the grounds of appeal at the latest.

However, there were reasonable doubts as to the jurisdiction of the general court of appeal. If the state legislature had made use of the power of concentration in Sections 92 (1) and 93 ARC, a party could not reasonably be expected to appeal to both possibly competent courts of appeal in the event of uncertainty as to the competent court of appeal. An appeal may be lodged with the general court of appeal if there is no reasonable doubt as to the jurisdiction of the cartel court of appeal, but not vice versa with the higher regional court with jurisdiction for cartel cases if the jurisdiction of the general court of appeal is not seriously in doubt. According to the decision of the BGH, whether there is uncertainty about the jurisdiction of the general court of appeal is to be determined in the context of a case-by-case examination of the objective circumstances. The decisive factor for this is the knowledge of a reasonable party to the proceedings, based on the entire content of the file. Such doubts could also arise from formal aspects. Jurisdiction is unclear, for example, if a regional court with jurisdiction under sections 87 and 89 ARC has clearly ruled in this capacity.

In the proceedings decided by the BGH, doubts as to jurisdiction arose from the fact that the preceding preliminary injunction proceedings were antitrust proceedings in which the plaintiff had complained of a violation of Section 19 (2) No. 1 GWB and discrimination; the Cartel Court of Appeal had ruled on that appeal. The Regional Court had referred to this decision in more detail in the main proceedings and had assumed a cartel case and had also sent its decision to the Federal Cartel Office. If the court itself (even if wrongly) assumes a cartel case, the parties can generally be assumed to be uncertain about the competent court of appeal.

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