ntr63-C_2019267EN.01000401-E0063

COMMUNICATION FROM THE COMMISSION Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser · European Union

(63) It should be noted that the need to construct a counterfactual when assessing passing-on is in line with the jurisprudence of the CJEU on passing-on in the context of reimbursement of unlawful levies and custom duties charged by Member States, see CJEU, judgment of 4 October 1979, case C-238/78 (Ireks-Arkady v Council and Commission) ECLI:EU:C:1979:226, paragraph 14; CJEU, judgment of 21 December 2000, case C-441/98 (Michailidis) ECLI:EU:C:2000:479, paragraphs 33 et seq.; CJEU, judgment of 6 September 2011, case C-398/09 (Lady & Kid and Others) ECLI:EU:C:2011:540. Further, in the Opinion of Advocate General Geelhoed delivered 3 June 2003 in case C-129/00 (Commission v Italian Republic) ECLI:EU:C:2003:319, paragraph 78, the Advocate General pointed to the fact that a counterfactual would be required to show what would have occurred to prices in the downstream market in the absence of the initial overcharge.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.