§1.1 Purpose, scope and structure of these guidelines

(1) These guidelines intend to provide national courts, judges and other stakeholders in damages actions for infringements of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’) with practical guidance on how to estimate the passing-on of overcharges. In particular, they set out the economic principles, methods and terminology concerning passing-on inter alia by reference to a number of examples. Further, these guidelines are designed to help determine the sources of relevant evidence, whether a disclosure request is proportionate, and assessing the statements of the parties on passing-on and any economic expert opinion that may be presented to the court. (2) The legal basis for the guidelines is Article 16 of the Damages Directive (1). They are non-binding and do not alter existing rules under EU law or the laws of the Member States. Accordingly, there is no obligation on a national court to follow them. The guidelines are also without prejudice to the jurisprudence of the Court of Justice of the European Union (‘CJEU’). They refer to the harmonised rules set out in the Damages Directive noting that in practice national courts will apply national rules, including those transposing the Damages Directive. (3) As a reference source for good practices, the guidelines give indications on the relevant parameters that can be taken into account when dealing with economic evidence relevant for assessing the passing-on of overcharges. They build upon relevant economic studies gathered by the Commission and complement the Practical Guide on quantifying harm in actions for damages based on breaches of Article 101 or 102 TFEU (‘Practical Guide’) (2) accompanying the Communication from the Commission on quantifying antitrust harm in a damages action (3). While the Practical Guide focuses on the overcharge, these guidelines specifically address in more detail the passing-on of such overcharges (4). The Practical Guide and these guidelines should be read together (5). (4) As explained in paragraphs 17-19 below, these guidelines may be useful when an infringer invokes passing-on in its defence against a damages claim (‘shield’) or when an indirect purchaser claims damages from the infringer alleging passing-on of an overcharge (‘sword’). However, as in any damages action, the degree to which the court has to consider the facts of a case will depend on the way the action is brought by the claimant and the nature of the defence raised by the defendant. For example, in some cases a claimant may not claim for loss of profit as a result of the volume effect because of the additional complexity this may involve (6). However, a claim by an indirect purchaser against an infringer will typically involve consideration of passing-on, since that is essential to the claim. (5) Similarly, the manner in which a national court would wish to approach the assessment and estimation of passing-on is likely to be influenced by the nature and size of the claim, the merits of the submission and the availability of data. When assessing the proportionality of an order to disclose information, such a court could take into account the choice of economic method and approach from among the different options explained in the guidelines. What may be appropriate in terms of the scope of data required and cost of expert analysis for a claim of EUR 20 million may not be proportionate for a claim of EUR 200 000. (6) By reference to legal principles, established jurisprudence and the provisions in the Damages Directive, these guidelines set out the legal context of passing-on. A short legal section summarises the procedural rules and instruments according to which national courts may take into account the passing-on of overcharges in damages actions. The legal context relates to EU law, national law and the respective practice. In this context, judges need to pay particular attention to the principles of effectiveness and equivalence (7). Firstly, this means that they must apply national rules in such a way that the application does not render practically impossible or excessively difficult the exercise of the right to full compensation for harm caused by an infringement of EU competition law (principle of effectiveness) (8). Secondly, judges must bear in mind that national rules and procedures relating to actions for damages resulting from infringements of Article 101 or 102 TFEU must not be less favourable to the alleged injured parties than those governing similar actions for damages resulting from infringements of national competition law (principle of equivalence). (7) The main section of these guidelines deals with the economics of passing-on, namely the economic theory and quantification methods relevant for the purpose of estimating passing-on. The part on the economic theory focuses on the theoretical concepts underlying passing-on and sets out factors that can have an impact on it. In the part on economic quantification, different approaches and methods to quantify the passing-on effects are presented.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07