Opinion of the Advocate General — ECLI:EU:C:2024:767
Date: 2024-09-19
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-253/23 – 1 
Case C-253/23 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court 
Date lodged: 
20 April 2023 
Referring court: 
Landgericht Dortmund (Germany) 
Date of the decision to refer: 
13 March 2023 
Applicant: 
ASG 2 Ausgleichsgesellschaft für die Sägeindustrie Nordrhein-
Westfalen GmbH 
Defendant: 
Land Nordrhein-Westfalen 
      
Subject matter of the case in the main proceedings 
Competition – Cartel – Directive 2014/104/EU – Compensation – Assignment of 
claims for compensation for harm caused by a cartel – Legal standing to bring 
proceedings – Collection by group action 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is EU law, particularly Article 101 TFEU, Article 4(3) TEU, Article 47 of the 
Charter of Fundamental Rights of the European Union, and Articles 2(4) and 3(1) 
of Directive 2014/104/EU 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 – 
EN 
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established, with binding effect, on the basis of Article 9 of Directive 
2014/104/EU 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, of 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? 
2. Is EU law in any event 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/EU 
(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 nor via private enforcement? 
3. 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? 
Provisions of EU and international law cited 
Directive 2014/104/EU of the European Parliament and of the Council of 
26 November 2014 on certain rules governing actions for damages under national 
law for infringements of the competition law provisions of the Member States and 
of the European Union, particularly Articles 2, 3 and 9  
TFEU, Article 101 
TEU, Article 4(3) and Article 6 
Charter of Fundamental Rights of the European Union, Article 47 
ECHR, Article 13 
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Provisions of national law cited 
Rechtsdienstleistungsgesetz (Law on out-of-court legal services; ‘the RDG’), 
particularly: 
Paragraph 1 of the RDG (Scope) 
‘(1) This Law regulates the authorisation to provide out-of-court legal services in 
the Federal Republic of Germany. It serves to protect persons seeking justice, 
legal relations and the legal system against unqualified legal services. […]’ 
Paragraph 2 of the RDG (Definition of legal service) 
‘(2) [...], the collection of third-party claims or claims assigned for the purpose of 
collection for the account of a third party is a legal service if the debt collection is 
conducted as a stand-alone business [...].’ 
Paragraph 3 of the RDG (Authorisation to provide out-of-court legal services) 
‘The independent provision of out-of-court legal services is permissible only to 
the extent provided for under this Law or by or pursuant to other laws.’ 
Paragraph 10 of the RDG (Legal services on basis of special expertise) 
‘(1) Natural and legal persons [...] registered with the competent authority 
(registered persons) may provide legal services in the following fields on the basis 
of special expertise: 
1. 1. collection services (first sentence of paragraph 2 (2),’ 
Paragraph 11 of the RDG (Special expertise, professional titles) 
‘(1) Those providing collection services must have special expertise in the fields 
of law which are important for the collection activity for which an application is 
being made, [...].’ 
Rechtsdienstleistungsverordnung (Ordinance on out-of-court legal services; ‘the 
RDV’), particularly paragraphs 2 and 4 
Gesetz gegen Wettbewerbsbeschränkungen, (Law against restrains of 
competition, ‘the GWB’), particularly paragraphs 32, 32b and 33 
Bürgerliches Gesetzbuch (BGB), (German Civil Code, ‘the Civil Code’), 
particularly paragraphs 134 and 398 
Succinct presentation of the facts and procedure 
1 By the action brought on 31 March 2020, the applicant is claiming antitrust 
damages, pursuant to a right assigned to it, for a total of 32 sawmill companies 
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from Germany, Belgium and Luxembourg (‘the assignors’). It accuses the 
defendant of having harmonised the prices of unwrought coniferous timber 
(‘roundwood’) for itself and other owners of woodland in North Rhine-Westphalia 
during at least the period from 28 June 2005 to 30 June 2019 in contravention of 
Article 101 TFEU. The owners of woodland did not offer their goods on the 
market independently, but commissioned the defendant to take over the marketing 
of roundwood for them. The defendant thus negotiated prices with customers not 
only for its own roundwood, but also for the roundwood of the other participating 
owners of woodland, and offered them on the market. 
2 The Bundeskartellamt (Federal Cartel Office) conducted investigations into that 
approach over a number of years and, in a 2009 decision, established specific 
thresholds for timber marketing collaborations as well as market-position 
reduction measures for the Land involved as defendant in the present case. 
3 The sawmill companies are claiming compensation for the harm they claim to 
have suffered since 28 June 2005 as a result of purchasing roundwood from North 
Rhine-Westphalia at prices which they claim were inflated by the cartel. The 
claim is based on hundreds of thousands of individual payments by the assignors. 
4 Each of them instructed the applicant, which is licensed as a provider of legal 
services under the RDG, to enforce their claims and assigned those claims to the 
applicant for the purposes of enforcement. The applicant is asserting the claims in 
its own name and at its own expense, but in consolidation for the account of the 
assignors, first out of court and now, with legal representation, before the 
Landgericht Dortmund (Regional Court, Dortmund). In return, the assignors have 
promised it a fee in the event of success. In all of this, the applicant is represented 
by a ‘qualified person’ listed in the Legal Services Register, a fully qualified 
German lawyer (Volljurist) who has successfully passed both state law 
examinations, is qualified for judicial office and is licensed to practise at the bar. 
The applicant has explained and provided evidence of its area of activities and 
expertise to the licensing authority in detail. 
5 The defendant requests that the action be dismissed; it asserts that the consolidated 
sale of timber even reduced prices and thereby promoted the sawmill industry. 
Above all, however, the defendant relies on the assertion that the claims for 
damages were assigned to the applicant in breach of the RDG and those 
assignments are therefore void, for which reason the applicant does not have legal 
standing to bring proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 In Germany, especially in cases of collective and scattered harm, claims are joined 
via the medium of assignment models (Abtretungsmodelle), also known as 
collection by group action (Sammelklage-Inkasso), and then asserted by way of 
legal action. Under these models, injured parties assign their presumed claims to a 
legal service provider licensed under the RDG, which asserts them in 
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consolidation in its own name and at his own expense, for the account of the 
assignors, in return for a fee (contingent on success). 
7 This approach is accepted in the case-law of the Bundesgerichtshof (Federal Court 
of Justice) in various areas of law, namely in tenancy law, in respect of the 
assertion of air passenger rights as well as in actions for damages in connection 
with the diesel/emissions scandal. However, in the area of antitrust damages law, 
and particularly in stand-alone cases in that area, the case-law of the courts of first 
instance holds the assignment model to be inadmissible; in that respect, the 
Federal Court of Justice has not yet had the opportunity to rule on this. 
8 Under the general provision of Paragraph 398 of the Civil Code, a claim for 
damages, like other kinds of claim, can be assigned to, for example, a collection 
service provider for the purpose of collection. Collection service providers in this 
context are licensed legal service providers who have been granted collection 
authorisation. By virtue of that authorisation, they are allowed to collect claims 
(assigned for the purpose of collection) for the account of persons seeking justice 
(first sentence, no. 1, of Paragraph 10(1) of the RDG, read in conjunction with the 
first sentence of Paragraph 2(2) thereof). In the absence of collection 
authorisation, collection of the debt is prohibited and any assignment is therefore 
void. Collection authorisation is granted by state licensing authorities upon 
application, following the conduct of a licensing procedure on the basis of 
expertise of which proof is provided (Paragraphs 11 and 12 of the RDG). 
9 The collection authorisation thus granted covers out-of-court collection of debts. 
In the case-law of the highest courts, however, it is acknowledged that collection 
service providers are in principle also allowed to collect debts by means of legal 
proceedings, as long as they do so with legal representation. Collection service 
providers are in principle also allowed to collect claims in consolidation for the 
account of several injured parties in one and the same set of legal proceedings 
(Federal Court of Justice, judgment of 13 June 2022, reference VIa ZR 418/21, in 
juris database, paragraphs 11 et seq. and 51 et seq. – financialright; Federal Court 
of Justice, judgment of 13 July 2021, reference II ZR 84/20, in juris database, 
paragraphs 20, 49 et seq. – Airdeal). This regularly arises in connection with 
models in which the collection service provider assumes the costs of debt 
collection and only receives remuneration for its activity if it is successful; this is 
also considered permissible by the Federal Court of Justice (Federal Court of 
Justice, judgment of 13 July 2021, reference II ZR 84/20, in juris database, 
paragraph 48 – Airdeal). 
10 According to various German courts, however, that possibility of collection 
service providers asserting claims pursuant to rights assigned to them does not 
apply to claims for antitrust damages. In a parallel case to the case in the main 
proceedings, the Landgericht Stuttgart (Regional Court, Stuttgart) justified this by 
pointing out that, in part because of the continuing development of European 
antitrust legislation, antitrust damages law was particularly complex and typically 
apt to lead to conflicts of interest. In addition, it held that collection service 
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providers were typically not knowledgeable in this area, despite the statutory 
provision of proof of expertise (see, inter alia, Regional Court, Stuttgart, 
judgment of 20 January 2022, reference 30 O 176/19, in juris database, 
paragraph 88 et seq. – Rundholzkartell BadenWürttemberg; Regional Court, 
Mainz, judgment of 7 October 2022, reference 9 O 125/20 – Rundholzkartell 
Rheinland-Pfalz, in juris database). 
11 According to the referring chamber, that position is in any event correct when the 
situation in question is, as in the present case, a stand-alone case. This is because 
such a stand-alone case requires complex examination of numerous aspects which 
do not primarily fall within the scope of civil law. In such cases, the limit of the 
out-of-court activities conceivable as collection services within the meaning of 
Paragraph 2(2) of the RDG, namely the legal assessment and advice provided in 
relation to the collection of debts by an expert within the meaning of Paragraphs 
11 and 2 of the RDG, read in conjunction with Paragraphs 2 and 4 of the RDV, 
appears to have been clearly exceeded. 
12 Given that, under Paragraph 134 of the Civil Code, a legal transaction that violates 
a statutory prohibition is void, the consequence of this would be, inter alia, that 
the assignments themselves are void. On those grounds, the present action for 
antitrust damages would have to be dismissed on the merits without further 
examination because of the absence of legal standing to bring proceedings. 
13 No other lawful and equally appropriate means of enforcing claims for 
compensation for collective or scattered harm caused by a breach of antitrust law 
in Germany. In particular, the Representative Actions Directive – not yet 
transposed into law in Germany – is not applicable to claims for antitrust damages 
(Article 2(1) of Directive 2020/1828, read in conjunction with Annex I thereunto), 
and the action brought by associations that is provided for in national legislation, 
namely Paragraph 33(4) of the GWB, is not applicable to claims for damages. 
14 Scattered harm is generally characterised by each injured party having suffered 
only small-scale harm, but the harm suffered by all the injured parties adding 
together to a large sum; the harm to each party is so minor that economic 
rationality in combination with the unfavourable ratio of cost risk to benefit mean 
it is not pursued. Even for such parties who have suffered possible harm costed at 
between 200 000 and 300 000 euros, for example, collection by group action is the 
only economically sensible and practicable option for demanding compensation 
for that harm, because of the particular cost and risk structures within the antitrust 
damages process in Germany. 
15 However, given the provisions of the RDG, the referring chamber considers itself 
bound, at least in stand-alone cases such as the present case, to assume that the 
assignments are void. The outcome of the present case therefore crucially depends 
on the answers to the questions referred.  If the Court were to conclude that EU 
law does not preclude the interpretation of the RDG set out above, that 
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interpretation would result in the nullity of the assignments and, consequently, the 
dismissal of the action in its entirety. 
16 If, on the other hand, the Court concludes that the questions are to be answered in 
the affirmative and that EU law does preclude the interpretation of the RDG 
described, then, since an interpretation in conformity with EU law, being contra 
legem in relation to national law, is ruled out in the view of the chamber (see, to 
that effect, CJEU judgments of 4 July 2006, Adeneler and Others, C-212/04, 
EU:C:2006:443, paragraph 110; of 4 March 2020, Bank BGŻ BNP Paribas, C-
183/18, EU:C:2020:153, paragraph 67; and particularly of 6 October 2021, Sumal, 
C-882/19, ECLI:EU:C:2021:800, paragraph 72), the RDG would have to be 
disapplied in the present case and the assignments would have to be regarded as 
valid in that respect. 
17 The chamber has considerable doubts as to the conformity with EU law of the 
prohibition against collection on claims for antitrust damages, particularly in 
stand-alone cases. In the view of the chamber, the prohibition against collection 
on claims for antitrust damages that follows from the RDG under the case-law of 
the German courts hearing antitrust-damages cases infringes (1.) Directive 
2014/104, (2.) the principle of effectiveness of EU law and (3.) the principle of 
effective judicial protection. 
18 1. First of all, there are doubts as to whether the prohibition against collection 
on claims for antitrust damages is compatible with Article 3(1) of Directive 
2014/104, read in conjunction with the third variant in Article 2(4) thereof. Those 
provisions, applicable ratione temporis in the present case, confirm the right of 
injured parties to full compensation for harm caused by a cartel, as recognised by 
settled case-law, and extend it to persons ‘that succeeded in the right[s] of the 
alleged injured part[ies], including the person that acquired the claim[s]’. 
19 Article 3(1) of Directive 2014/104 requires that ‘any natural or legal person who 
has suffered harm caused by an infringement of competition law is able to claim 
and to obtain full compensation for that harm.’ That right to full damages also 
belongs to persons to whom injured parties assign their claims. The third variant 
in Article 2(4) of Directive 2014/104 explicitly defines an action for damages as 
‘an action under national law by which a claim for damages is brought before a 
national court by [...] a natural or legal person that succeeded in the right of the 
alleged injured party, including the person that acquired the claim’. 
20 In the view of the chamber, the very fact that the third variant was added later to 
Article 2(4) of Directive 2014/104 suggests that the European legislature did 
consider assignment models such as the one at issue in the present case and 
inserted them as a means of effectively enforcing claims, in addition to the 
provision for applicants to act in their own name on behalf of someone else 
(Prozessstandschaft) which is covered by the second variant. 
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21 Moreover, it appears necessary for Directive 2014/104 to protect the assignment 
model in order to achieve the objectives of the Directive, given that it is intended 
‘to ensure that throughout Europe, victims of infringements of the EU competition 
rules have access to effective mechanisms for obtaining full compensation for the 
harm they suffered’ (Commission, proposal for Directive 2014/104, COM (2013) 
404 final, p. 5). 
22 Assignment models are recognised as an option for enforcing claims in other 
Member States such as the Netherlands, Austria and Finland. A prohibition 
persisting in Germany in that respect would hamper the effective and uniform 
application of competition law and could at the same time encourage undesirable 
forum shopping. 
23 Almost simultaneously with the publication of Directive 2014/104 in the Official 
Journal, the Advocate General at the Court of Justice in CDC Hydrogen Peroxide 
underlined that the emergence of a collection service provider as the applicant, 
‘whose aim it is to combine assets based on claims for damages resulting from 
infringements of EU competition law, seems [...] to show that, in the case of the 
more complex barriers to competition, it is not reasonable for the persons 
adversely affected themselves individually to sue those responsible for a barrier of 
that type’ (Opinion of Advocate General Jääskinen of 11 December 2014, C-
352/13, EU:C:2014:2443, point 29). The Advocate General thereby made it clear 
that there also appears to be a strong rational need to group actions by way of 
transferring collection rights. 
24 2. There are also doubts as to whether the prohibition against collection on 
claims for antitrust damages claims is compatible with the principle of 
effectiveness under Article 101 TFEU and Article 4(3) TEU. 
25 Article 101 TFEU produces direct legal effects in relations between private 
individuals and directly creates rights for them which national courts must protect. 
According to the settled case-law of the Court, the practical effect of the 
prohibition against agreements, decisions and concerted practices demands that it 
be open to ‘any person’ to claim full compensation for the harm he or she has 
suffered as a result of a breach of antitrust law. (settled case-law; CJEU judgments 
of 20 September 2001, Courage, C-453/99, EU:C:2001:465, paragraphs 23, 26-
27; of 13 July 2006, Manfredi, C-295/04, EU:C:2006:461, paragraphs 90-91, 95, 
100-101; of 12 December 2019, Otis, C-435/18, EU:C:2019:1069, paragraph 22; 
and of 6 October 2021, Sumal, C-882/19, EU:C:2021:800, paragraph 32). 
26 According to the settled case-law of the Court, the national courts responsible for 
applying EU antitrust law in the exercise of their jurisdiction must ensure that the 
exercise of the rights conferred by EU law is not rendered impossible or 
excessively difficult in practice; in that respect, the procedural autonomy of the 
Member States may also be limited by the higher-ranking provisions of EU law. 
In that respect, the national courts must not only ensure that EU law takes ‘full 
effect’ and protect the rights which Article 101 TFEU confers on the individual, 
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but also prevent the full effectiveness of EU law from being weakened, narrowed 
or even jeopardised in any way (CJEU judgment of 13 July 2006, Manfredi, C-
295/04 to C-298/04, EU:C:2006:461, paragraph 89; see also, outside antitrust 
damages law, judgments of 19 June 1990, Factortame, C-213/89, EU:C:1990:257, 
paragraph 20, and of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, 
paragraphs 21-24; see also Advocate General Pitruzzella, Opinion of 8 September 
2022, Repsol, C-25/21, EU:C:2022:659, point 84). In this context, individual 
elements must not be considered in isolation; instead, to ensure effectiveness, the 
question to be asked is whether the national rules concerning the options for joint 
enforcement of claims for antitrust damages, ‘assessed as a whole’, render the 
exercise of the rights conferred by EU law impossible or excessively difficult in 
practical terms (CJEU judgment of 28 March 2019, Cogeco, C-637/17, 
EU:C:2019:263, paragraph 45; Advocate General Kokott, Opinion of 17 January 
2019, Cogeco, C-637/17, EU:C:2019:263, point 81, and Opinion of 14 October 
2004, Berlusconi and Others, C-387/02, EU:C:2004:624, point 109). 
27 In Germany, effective private enforcement of antitrust law where there has been 
scattered or collective harm is only possible by way of the assignment model at 
issue in the present case. Without this tool, potentially injured parties have no 
realistic option to enforce possible claims in a practicable and effective manner. 
28 Asserting claims for antitrust damages is complex in terms of subject matter, 
economics and law and therefore protracted, expensive and risky. This high cost 
in time and money and the litigation risk are prohibitive for consumers in 
particular, but also for small and medium-sized enterprises, so that claims tend, 
with a rational apathy, not to be pursued (see Advocate General Jääskinen, 
Opinion of 11 December 2014, CDC, C-352/13, EU:C:2014:2443, point 29). That 
rational disinterest can be overcome only if claims are asserted in consolidation, 
with the concomitant splitting of the costs of experts and legal advisers as well as 
of the litigation and other risk (Advocate General Kokott, Opinion of 29 July 
2019, Otis, C-435/18, EU:C:2019:651, point 88; Advocate General Jääskinen, 
Opinion of 11 December 2014, CDC, C-352/13, EU:C:2014:2443, point 29). 
29 All these problems arise all the more in stand-alone cases, because individual 
alleged injured parties cannot even refer to the decision of the competition 
authorities – which would have a binding effect for the antitrust damages process. 
On the contrary, they even have to provide proof of the breach of antitrust law. 
The fact that this is subject to considerable difficulties in practice is empirically 
evident from the minimal number of stand-alone actions that are brought. 
30 At the same time, in cases where the competition authorities do not intervene, 
private enforcement of the law is the only option for protecting the competitive 
market order and deterring potential members of cartels, an objective of EU law 
which is also in the public interest. Stand-alone cases are consequently 
indispensable, not least in view of the limited capacities of the authorities to 
enforce antitrust law, which is why the position of applicants bringing stand-alone 
actions vis-à-vis those bringing follow-on actions must not be further worsened 
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(see Advocate General Kokott, Opinion of 17 January 2019, Cogeco, C-637/17, 
EU:C:2019:32, point 52). 
31 In particular, the consolidation of claims also prevents the same evidence 
gathering being done multiple times and avoids the risk of more than one court 
issuing divergent decisions on the same complex legal and factual issues in 
parallel proceedings. 
32 When the interest in effective enforcement of EU law (Article 101 TFEU in the 
present case) is weighed against the objectives of the national rule restricting its 
effectiveness (the RDG in the present case), the interest in enforcing EU law 
clearly prevails. 
33 3. Lastly, there are doubts as to whether the prohibition against collection on 
claims for antitrust damages which arises, at least for stand-alone actions, from the 
RDG does not violate the right of potential injured parties to effective judicial 
redress (Article 47(1) of the Charter of Fundamental Rights; Article 6(3) TEU and 
Article 13 of the ECHR). 
34 The right to effective judicial redress requires an effective remedy that is actually 
suitable for enforcing the legal situation protected by EU law. The minimum 
content of the right to effective judicial redress includes the requirement that the 
remedy must satisfy the principle of effectiveness. One element of this is that 
those seeking justice must not be deterred from asserting their rights by excessive 
financial risks. National law must not therefore provide only remedies through 
which persons seeking justice risk finding themselves in a worse position as a 
result of bringing an action than they would have been had they not done so 
(CJEU judgments of 15 April 2008, Impact, C-268/06, EU:C:2008:223, 
paragraph 51; of 21 November 2002, Cofidis, C-472/00, EU:C:2002:705, 
paragraph 34; of 25 November 2008, Heemskerk, C-455/06, EU:C:2008:650, 
paragraph 47; and of 24 March 2009, Danske Slagterier, C-445/06, 
EU:C:2009:178, paragraph 63). 
35 However, these requirements are not satisfied if potential injured parties are 
deprived of the assignment model and thus of the only effective remedy for 
pursuing collective and, above all, scattered damages, leaving them with the sole 
option of pursuing their claims by way of individual actions. Even were they to do 
this, overcoming their ‘rational disinterest’, they would have to face costs for 
economic experts and specialist legal advisers which are, as a rule, 
disproportionate to the value of the damages sought in the individual proceedings. 
In stand-alone proceedings, moreover, they would even have to first identify the 
breach of antitrust law as such, research it in every detail and lastly present and 
prove it in the proceedings, with all the costs this would entail.