§2.1 Passing-on of overcharges and the right to full compensation

(12) Both the CJEU jurisprudence and the Damages Directive are important for the assessment of passing-on. Firstly, it is important to recall that according to established CJEU jurisprudence ‘[a]ny person’ is entitled to claim compensation for the harm suffered where there is a causal relationship between that harm and an infringement of Article 101 or 102 TFEU (12). In particular Articles 1(1) and 3(1) and (2) of the Damages Directive make clear that any person having suffered harm caused by an infringement of Article 101 or 102 must be able to effectively exercise the right to claim full compensation (13). Secondly, the Damages Directive's rules on the passing-on of overcharges are rooted in the compensatory principle, which underlies the entire Damages Directive and must be understood as requiring that a person entitled to claim compensation for the harm suffered must be placed in the position in which that person would have been had the infringement not been committed. (13) In the context of the passing-on of overcharges, Article 12(1) of the Damages Directive specifies that ‘any person’ includes direct and indirect purchasers. This means, in the example in Box 1 above, the wire harnesses producer B, as direct purchaser, and the car manufacturer C, as indirect purchaser, may also claim compensation from the copper manufacturer A, as the infringer. Other indirect purchasers further down the supply chain are also entitled to obtain damages from the infringer. As mentioned above in paragraph 11, this would be the independent car retailer D and end consumers in the example in Box 1 above. (14) It should be noted that the elements of the compensatory principle, i.e. a person's right to claim full compensation for harm causally linked to an infringement of EU competition law, apply also to direct and indirect suppliers of an infringer. The Damages Directive refers to the situation of a buyer's cartel as an example in which harm could result from a lower price paid by infringers to their suppliers (14). (15) Full compensation covers compensation for actual loss (damnum emergens) and for loss of profit (lucrum cessans), plus the payment of interest (15). Generally, actual loss refers to a reduction in a person's assets and loss of profit refers to an increase in those assets which would have occurred if the harmful act had not taken place (16). In the context of passing-on, the distinction plays a particular role with regard to the characteristic economic effects and their legal classification. The general rule is set out below. — The price effect relates to the overcharge as an increase in the price that a direct or an indirect purchaser had to pay for a product or services due to the infringement of EU competition law (17). It includes umbrella pricing (18). The price effect may be reflected in a direct or indirect purchaser's claim for compensation of actual loss. It is the part of the harm which is referred to as overcharge harm in the Damages Directive (19). However, the direct or indirect purchaser may be able to pass on the overcharge further down the supply chain, either partially or fully. Thus, when national courts estimate the partial or full passing-on of an overcharge in a damages action, they will need to identify the overcharge harm which remains at a given level of the supply chain. Depending on the legal system, the national court may consider such passing-on as a reduction of the actual loss or by reference to other rules or principles, such as compensatio lucri cum damno (20). — The volume effect can be described, more generally, as the harm that is caused by the fact that fewer of the products or services are purchased as a result of the overcharge (21). However, the focus of these guidelines is on the volume effect understood as the profit loss due to reduced sales resulting from passing-on. As mentioned in the Damages Directive, it can be recoverable as loss of profit (22). (16) While, on the basis of the Damages Directive, one may distinguish between actual loss because of the overcharge, on the one hand, and loss of profit due to reduced sales, on the other hand, there is an inherent link between the underlying price effect and volume effect (23). Therefore, if passing-on becomes relevant, both effects and their interaction should be taken into account. The economic methods to do so are set out further below.

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