Left Holding the File

– On a Federal Court of Justice acting in self-defence, a legislature conspicuous by its absence, and the quiet decline of Germany as a forum for justice –

There are judgments that decide the law. And there are judgments that bear witness. The judgment of the Federal Court of Justice of 12 May 2026 in case KZR 6/24, internally and in future no doubt cited with a sigh as “Sammelklage-Inkasso”, belongs to the latter category. It bears witness to a highest court that has reached the end of its procedural instruments. To a justice system that has been left alone with the consequences of modern mass harm. And to a legislature that has permitted the vehicle, ignored the road, and then left the judiciary to clear the wreckage.

This is the heart of the matter. The courts did not create mass cartel damages. The courts did not create pan-European infringements, litigation funding, legal tech, assigned claims, or the rational apathy of small victims. The legislature knew all of this. It allowed the business model. It modernised the Legal Services Act. It created consumer collective redress. It left cartel damages, and other commercial mass claims, without a workable procedural architecture.

The result is “Sammelklage-Inkasso”: not merely a judgment on collective debt-collection actions, but a judgment on institutional abandonment.

The Case, in Brief

In 1997, Europe’s leading manufacturers of medium and heavy trucks began coordinating prices. They continued doing so until 2011. Fourteen years. Across the entire EEA. In 2016, the European Commission found the infringement and imposed fines of almost EUR 3 billion. For those affected, haulage companies, logistics undertakings, municipalities and tradesmen who had bought or leased cartel-affected trucks during those fourteen years, the real journey then began: the search for damages.

A specialised legal services undertaking, technically a debt collection service provider registered in the legal services register, in substance an early legal-tech undertaking, gathered more than 3,000 assignors and took assignments of their claims. Twenty-one countries. More than 70,000 procurement transactions. The amount in dispute ultimately stood at around EUR 560 million. The statement of claim comprised 74 binders and 18,472 pages. The reply comprised 101 binders and 49,386 pages. One should pause for a moment and let those figures settle.

That was in 2017. The proceedings have been running ever since. At the time of the Federal Court of Justice’s judgment, almost nine years had passed without a single substantive ruling on the quantum of even one damages claim.

What the Federal Court of Justice Actually Says

The Federal Court of Justice says many things in this judgment. It says that cartel damages claims may, in principle, be brought by a debt collection service provider by way of a collective debt-collection action. It says that a success fee of 33% is not contrary to public policy. It says that the bundling of claims from 21 countries in one action is not, as such, an abuse of process.

Most notably, however, the Court creates a new procedural instrument, namely a judicial order requiring preparation for the severance of proceedings, backed by the sanction of inadmissibility. It is constructed not from one purpose-built statutory rule, but from a mosaic of procedural law, abuse-of-rights doctrine, legal-services regulation and constitutional fair-trial guarantees. None of them was enacted as a procedural code for mass cartel damages proceedings involving more than 3,000 assignors, 70,000 procurement transactions and 21 legal systems. That is why the judgment reads less like the application of an existing rule than the construction of an emergency bridge.

Here, the court must light the fuse; the claimant must do the sorting. Once the court has indicated how the mass of claims is to be broken down, the claimant must produce the new, separated pleadings. And it must do so quickly. The Federal Court of Justice fixes the outer limit at six months. Those six months are the indulgence. If the claimant still fails to comply, despite proper warning, the bundled action may be dismissed as inadmissible.

In the midst of this construction, almost in passing, in a single sentence, the Federal Court of Justice acknowledges something that no German highest court will be in a hurry to repeat:

“In order to enable the courts to process and also to separate the case file of proceedings of the present scale, statutory rules for mass collective actions would be required, accompanied by the provision of sufficient personnel and other resources.”

Translated from the language of the highest court into the language of reality, this means: the existing procedural law cannot cope. The Court can improvise. It cannot legislate.

That is not rhetorical modesty. It is an admission of systemic failure.

The Arithmetic of Failure

One could at this point talk about legal doctrine. One could write about the German Code of Civil Procedure and ask whether a reduction of discretion to zero in a case-management decision can be justified doctrinally. One could analyse the construction of a subsequently arising abuse of process developed by the Federal Court of Justice here, and discuss whether it sits comfortably with the principle that the parties define the subject matter of the dispute.

But the arithmetic is more candid.

The Federal Court of Justice spells it out. On what the Court describes as a somewhat broad assumption of one hour per procurement transaction and 1,800 working hours per year, the examination by one reporting judge of the 70,000 transactions still in dispute would take 38 years. That estimate may be on the severe side. Many procurement transactions, viewed in isolation, will not require anything like an hour. Allow, then, a brisk ten minutes per transaction. Even on that more generous assumption, the exercise still consumes roughly six and a half judicial working years.

And that is before any hearing. Before evidence is taken. Before procedural fairness is worked through in the individual case. Before translations from the 20 other countries. Before the leasing-law questions which, depending on the contractual structure, fall to be assessed under 21 different legal systems. Before limitation, which may now be the least of the problems, but must still be procedurally dealt with where pleaded. Before passing-on and compensating benefits are calculated.

Whether the figure is 38 years or six and a half, the conclusion is the same. This is not the overburdening of an authority. It is the collapse of proceedings as a meaningful legal form.

And then, quite necessarily, the Federal Court of Justice devises an instrument by which the claimant must split up its own action, failing which the action may be dismissed as inadmissible. The objective is plain enough: the first-instance court must not be allowed to suffocate under this single case. The solution may be necessary. But it is not, and the Federal Court of Justice knows this, a concept. It is damage limitation.

The Model Is Not the Root Cause

One might now say, and indeed it has been said, that the debt-collection model is to blame. The aggressive bundling. The legal-tech undertaking that loads unverified data from more than 3,000 assignors into a statement of claim. The litigation funder in the background, influencing settlements. The success fee, distorting incentives.

All of that may be open to criticism. But it is not the root cause of the problem.

At a decisive point, the Federal Court of Justice expressly leaves open whether its novel solution applies “not only to a debt collection service provider subject to the Legal Services Act and bringing a collective debt-collection action, but generally to every claimant”. As a matter of institutional reality, the answer is difficult to avoid. As a matter of doctrine, the Federal Court of Justice leaves it open.

If more than 3,000 individual claimants had, by coincidence, instructed the same solicitors and brought a joint action, the court would be just as overwhelmed. If the claimant had been a factor who had acquired the claims outright by way of true factoring, the court would be just as overwhelmed. If the claims had been placed into any other procedural container without a mass-claims architecture, the court would still be left with the same basic impossibility: too many individual claims, too many factual variables, too many contracts, too many legal systems, too little procedural machinery.

The problem is not the debt-collection model. The problem is the German Code of Civil Procedure. The Code knows the principle of party presentation and individual procedural fairness. It knows no statistical sampling. No centralised procedure for the calculation of damages. No automated classification of mass harm. No mechanism enabling a court to deal, in a single set of proceedings, with 70,000 individual purchase, hire-purchase and leasing contracts from 21 countries, using a procedural code designed for a dispute between two parties about one contract.

The Code of Civil Procedure is an instrument of the nineteenth century. The Trucks cartel was an instrument of the twenty-first. The two do not fit.

The Legislature and the Art of Looking Elsewhere

What did the German legislature do when it realised that mass harm cases overwhelm the individual action model?

It enacted the Capital Markets Model Case Act. For mass investor proceedings. Limited. Cumbersome. Since amended several times.

It enacted the Consumer Rights Enforcement Act, implementing the European Representative Actions Directive. It applies to consumers. It does not apply to collective debt-collection actions, and the Federal Court of Justice makes clear that an analogous application is ruled out for lack of an unintended regulatory gap. The legislature knew what it was doing, and deliberately left that gap open.

It modernised the Legal Services Act, and expressly refrained from excluding specific areas of law such as competition law from debt-collection services, on the basis that debt collection service providers may display a high degree of expertise precisely in complex areas of law. In other words: the business model was permitted, but the procedural infrastructure required to handle it was simply not built.

That is not oversight. It is a choice. A choice that leaves the courts alone with the consequences.

And that is the quiet scandal of “Sammelklage-Inkasso”. The judiciary is not merely applying an incomplete statute. It is being required to rescue a legislative project from the very gap the legislature left behind. The legislature opened the door to collective enforcement by assignment, but did not build the corridor through which such claims could pass. The Court is now left holding the file.

EU Law as the Silent Indictment

In its judgment of 28 January 2025 in C-253/23, ASG 2, the Court of Justice stated what ought to be self-evident: the right of cartel victims to damages, codified in Article 3(1) of Directive 2014/104/EU, must be capable of effective enforcement. Member States may not render the exercise of that right practically impossible or excessively difficult.

In the same proceedings, the referring court had proceeded on the basis that German law offered no equivalent remedy capable of ensuring effective enforcement. The collective debt-collection action was, on that view, the only economically sensible and practicable route.

Take those two propositions together. The only practicable model is the collective debt-collection action. If that model is used in earnest, it produces proceedings which a German court cannot realistically complete within a reasonable time, whether one adopts the Court’s 38-year calculation or a much more generous estimate. And no one is responsible for a statutory solution.

What, then, becomes of the principle of effectiveness? What does Article 47(2) of the Charter of Fundamental Rights, with its guarantee of a hearing within a reasonable time, mean in this setting? Nine years without a substantive decision. The case continues. It is not even close to completion.

The answer is unlikely to be comfortable.

Germany as a Forum for Justice

Germany likes to present itself as a reliable forum for justice. Legal certainty. Independent courts. Highly specialised competition law. In the parallel individual actions concerning the Trucks cartel, the Cartel Senate of the Federal Court of Justice has by now handed down six judgments: Trucks Cartel I to VI. Individual claimants have therefore obtained functioning judicial protection.

The more than 3,000 assignors, many of them precisely the sort of smaller or mid-sized market participants for whom individual proceedings are commercially unattractive, are still waiting for a substantive decision after nine years. The Federal Court of Justice expressly recognises that the bundling of claims serves precisely to overcome the “rational apathy” of smaller victims who would otherwise forgo their claims.

That is the real paradox. The legislature permitted the collective debt-collection action because it was supposed to enable the enforcement of competition law for the smaller claimant. The court cannot process the action. The Federal Court of Justice therefore creates a new procedural instrument which forces the claimant to fragment its claim, with the consequence that costs rise and the very bundling which created the economic incentive in the first place is partly undone.

The message that may ultimately be received is this: small cartel victims in Germany are on their own. Those large enough to sue individually may do so. Those who are not are out of luck, or may wait forty years.

The Comment Ends; the Case Does Not

“Sammelklage-Inkasso” is a brave judgment because it does more than it had to. The Federal Court of Justice could have remitted the matter in a few brief paragraphs. Instead, the Cartel Senate wrote an extensive judgment, clarifying the law as far as the available instruments permit and, in doing so, pointing unmistakably to what is missing.

That deserves respect. It does not alter the fact that, for all its doctrinal elegance, the judgment is a symptom. A system that was not built for reality is repairing itself, provisionally, while still in operation, with whatever tools happen to be at hand.

Seven provisions. A six-month fuse. None of it designed for the case before the Court. All of it pressed into service because the statute that should exist does not.

In 2026, the legislature had not appeared.

The Court was left holding the file.