On 25 October 2016, the European Commission's
Directorate-General for Competition ("DG Comp") published
an expert study on potential approaches for national courts to
assess the passing-on of overcharges in competition litigation
The Study aims to provide judges and practitioners with
practical guidance on assessing economic evidence in relation to
the passing-on of overcharges in the context of competition law
infringements. The Study precedes the forthcoming EU-wide
Guidelines on assessing passing-on of overcharges and the
implementation of Directive 2014/104/EU ("Cartel
Damages Directive") across the EU. Pursuant to the Cartel
Damages Directive, which establishes the new legal framework for
pass-on, any person who has suffered harm caused by a competition
law infringement may claim full compensation for that harm. That
includes indirect claims brought by those who are not directly
affected by the infringement, such as indirect purchasers which are
nevertheless harmed as a result of the changes in behaviour of the
As an overview, the Study sets out the framework for evaluating
the plausibility of claims, for quantifying the effects of pass-on
and for assessing the total extent of harm suffered by a claimant.
Three distinct elements of recoverable harm are identified in the
Study, namely (i) the increase in the claimant's costs (the
'overcharge') caused by the infringement, (ii) the
passing-on of the overcharge by the claimant to its customers, by
means of price increases and their downstream effect, and (iii) the
volume effect of a claimant suffering a loss of sales volumes as a
consequence of pass-on. As part of this, the Study addresses the
effects of pass-on on competition, the impact of buyer power, the
relationship between pass-on and volume effects, and provides
approaches to the quantifying of the impact of pass-on. In regard
to the judges' role in assessing the economic evidence of
pass-on, the Study offers recommendations on how to manage expert
evidence, data and disclosure requests, and includes a 39-step
practical checklist that judges can follow when assessing pass-on
in damage claims.
Additional quantification guidance based on the Study is
expected to be provided by the Commission in the form of Guidelines
for national courts on the passing-on of overcharges. A DG Comp
public consultation is anticipated on the draft Guidelines.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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