The case involved bundled cartel damages claims relating to approximately 70,000 truck acquisitions totaling approximately EUR 500 million (around USD590 million) on behalf of more than 3,000 assignors from 21 countries. The BGH vacated the appellate judgment and remanded the case to the Higher Regional Court (Oberlandesgericht, OLG) Munich for renewed proceedings.
The decision matters for any company that could face such mass claims—and for any provider of legal-tech-based collective litigation models. It will shape the conditions under which mass claims may be brought before German courts going forward.
The German assignment model has gained steadily increasing importance in German private antitrust enforcement in recent years. It differs from the US-style opt-out class action and from consumer association collective redress actions under the German Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz, VDuG). It works by having individual claimants assign their claims to a registered claims collection service provider (Inkassodienstleister, Claims Vehicle), which then enforces them collectively with the backing of third-party funding.
The ruling: key holdings
The BGH confirmed that cartel damages claims may generally be bundled and pursued collectively by a Claims Vehicle. The mere aggregation of a large number of assigned claims does not, in itself, exert impermissible pressure on the opposing party and activities directed purely at judicial enforcement fall within the permissible scope of debt collection services under the German Legal Services Act (Rechtsdienstleistungsgesetz, RDG).
Abuse of process and separation orders
However, the BGH drew a clear line: where bundling makes it practically impossible for courts to grant effective legal protection (wirkungsvollen gerichtlichen Rechtsschutz), the aggregation constitutes an abuse of the Claims Vehicle's powers under the RDG. This applies in particular where it is already apparent at the time of filing that a single court division cannot properly adjudicate the claims within the framework of ordinary procedural rules, for example because the claims are disorganized, partially unverified, or excessively heterogeneous. In such cases, courts must order the Claims Vehicle to prepare for a separation of the case into several proceedings (Verfahrenstrennung). To this end, the court must direct the Claims Vehicle to submit new, restructured statements of claim for the respective separate groups of claims within a deadline set by the court, not exceeding six months. If the Claims Vehicle fails to comply, the action is to be dismissed as inadmissible on grounds of abuse of process. The BGH emphasized that these separation orders ultimately serve the interests of the injured parties themselves by enabling faster and more appropriate adjudication.
Third-party litigation funding
The BGH further provided guidance on third-party litigation funding, an area of growing significance in Germany. The BGH held that third-party litigation funding does not per se give rise to a structural conflict of interest under the RDG. In addition, the specific funding restrictions of the VDuG, which implements the EU Representative Actions Directive (Directive (EU) 2020/1828) for association-based collective actions, do not apply to assignment-based mass claims brought by Claims Vehicles, not even by analogy. However, obligations owed to the funder may, nonetheless, create concrete risks to the validity of the underlying claims structure. In particular, the assignment agreements may be void where the funding arrangement prevents the Claims Vehicle from acting solely in the interest of the individual assignors. This may, for example, be the case where the funder holds veto rights over settlements, with the consequence that the Claims Vehicle lacks standing to pursue the affected claims. The BGH accordingly held that disclosure of funding arrangements may be ordered where the defendant advances concrete indications of such a conflict. This is a notable development, as Claims Vehicles have to date routinely resisted such disclosure by invoking confidentiality obligations owed to their funders.
Practical implications for defendants
Separation orders as a strategic tool
Defendants can now press courts to impose separation orders on Claims Vehicles. Where claims are excessively heterogeneous, poorly organized, or insufficiently verified at the time of filing, defendants should document these shortcomings and seek separation orders early. Procedural separation will considerably drive up total litigation costs for Claims Vehicles and their funders because this eliminates the fee degression benefits under the Court Fees Act (Gerichtskostengesetz, GKG). A separate amount in dispute (Streitwert) must be set for each separated proceeding. To illustrate: court fees for a single proceeding with a value in dispute of EUR500 million are substantially lower than the combined fees for dozens of separate proceedings whose individual values in dispute sum to the same amount, because the statutory fee schedule is degressive. That means fees per euro decrease as the value in dispute rises. Separation therefore reverses this economy of scale.
Disclosure of funding arrangements
Defendants should put forward concrete indications of a structural conflict of interest between the Claims Vehicles and their funders. Obligations that prevent Claims Vehicles from settling individual claims in the best interest of specific assignors are particularly relevant grounds for requesting disclosure. The Claims Vehicle’s confidentiality interests vis-à-vis its funder do not automatically override the defendant's right to disclosure.
Outlook
Several questions remain open. The precise threshold at which bundled claims constitute an abuse of process will need to be developed through further case law. The BGH itself signals that legislation may be needed to properly regulate mass collective proceedings and to allocate adequate judicial resources. This is a clear prompt for legislative reform.
It remains to be seen whether the principles set out here apply only to Claims Vehicles as registered collection service providers under the RDG or extend more broadly to any claimant that improperly bundles claims. Also, the precise circumstances under which a litigation funding agreement renders assignments void will only become clear once the OLG Munich reviews the specific agreement in the remanded proceedings.
The central open question is this: how will German courts operationalize the BGH's abuse-of-process standard in practice and will the legislature act before lower courts are forced to draw these lines case by case? Companies should watch for further developments, particularly the upcoming decision of the OLG Munich in the remanded proceedings and any legislative initiatives that may follow.
