(1) Where several infringers jointly commit an infringement pursuant to Section 33a(1), they shall be jointly and severally liable for the harm caused by the infringement. In all other respects, Sections 830 and 840(1) of the German Civil Code shall apply.
(2) The proportion to which the joint and several debtors shall be liable, in relation to one another, to pay damages and the amount that has to be paid in damages shall depend on the circumstances of the case, in particular, on the extent to which they have caused the harm. In all other respects, Sections 421 to 425 as well as Section 426(1) sentence 2 and 426(2) of the German Civil Code shall apply.
(3) Where several undertakings violate Section 1 or Section 19 of this Act or Article 101 or Article 102 of the Treaty on the Functioning of the European Union, the liability pursuant to Section 33a(1) of a small or medium-sized enterprise within the meaning of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ 2003 L 124 of 20 May 2003, p. 36) shall be limited to the harm suffered by its direct and indirect purchasers or providers as a result of the infringement, provided that
1. its market share in the relevant market was below 5 per cent at any time during the period in which the infringement was committed and
2. the application of the liability provisions under subsection (1) would irretrievably jeopardise its economic viability and cause its assets to lose all their value.
The small or medium-sized enterprise shall be liable only for the harm suffered by other injured parties as a result of an infringement under Section 33a(1) where these are unable to obtain full compensation from the other infringers with the exception of the immunity recipient. Section 33e(2) shall apply mutatis mutandis.
(4) The other infringers may recover compensation under subsection (2) from the small or medium-sized enterprise within the meaning of subsection (3) sentence 1 only up to the amount of harm the enterprise caused to its own direct or indirect purchasers or providers. Sentence 1 shall not apply to compensation of harm caused to parties other than the direct or indirect purchasers or providers of the other infringers.
(5) Liability pursuant to subsections (3) and (4) shall not be limited if
1. the small or medium-sized enterprise has led the infringement or
2. the small or medium-sized enterprise has coerced the other infringers to participate in the infringement, or
3. the small or medium-sized enterprise has previously been found by an authority or court to have violated Section 1 or Section 19 of this Act or Article 101 or Article 102 of the Treaty on the Functioning of the European Union or competition law pursuant to Section 89e(2) of this Act.