Die Anwendbarkeit fremden Kartellrechts

Antitrust damage claims are increasingly gaining importance in Europe. National and European legislators, as well as the case law of the European Court of Justice, have systematically strengthened private enforcement of antitrust law for several decades. The cross-border assertion of antitrust damages has also been newly regulated by the Rome II Regulation. According to this regulation, member state courts can apply foreign antitrust law when plaintiffs claim damages suffered abroad. This regulation has so far had only limited practical relevance. Given the numerous international cartels, this finding is surprising. Jakob Olbing examines the applicability of foreign antitrust law from a comparative law perspective. He demonstrates that both German courts and federal courts in the USA can and should apply foreign antitrust law within their jurisdiction. A seemingly necessary conflict-of-law special treatment of antitrust damage claims under foreign law in both legal systems is legally unfounded. Such claims are neither subject to a fundamental prohibition of non-application nor are they significantly influenced by a separation of public and private conflict of laws.