§2.2 Scenarios in which national courts may face passing-on issues

(17) In actions for damages based on EU competition law infringements national courts typically deal with the passing-on of overcharges in two scenarios. (18) Firstly, an infringer may invoke the passing-on of overcharges in its defence against damages claims, i.e. arguing that the direct or indirect purchaser has passed on the overcharge, entirely or in part, to its own purchasers (24). This situation, in which passing-on can be described as a shield, is illustrated in Box 2 below by reference to a direct purchaser's claim. It has to be noted that the passing-on defence may also be invoked against claims of indirect purchasers further down the supply chain. (19) Secondly, indirect purchasers may base their damages actions on the argument that the direct purchasers of the infringers have passed on (parts of) the overcharge to them and that they have therefore suffered harm. In such a scenario passing-on can be described as a sword. This scenario is also illustrated in Box 2 below. Box 2 The two typical scenarios of passing-on (20) At the outset, it should be noted that Article 17(2) of the Damages Directive establishes the general presumption that cartel infringements cause harm. In addition, Articles 13 and 14 of the Damages Directive include specific rules on the burden of proof in the context of passing-on. (21) In the first scenario, i.e. when the passing-on of overcharges is used as a defence against an action based on an infringement of EU competition law, the defendant needs to prove that the claimant has passed on the overcharge (25). This burden of proof relates to the existence and extent of the passing-on of the overcharge. If the passing-on defence is fully or partially successful, Article 12(3) of the Damages Directive requires that, according to national procedural law, taking into account the principle of effectiveness and equivalence, the claimant may still claim compensation for loss of profit (26). In this case, the burden of proving such passing-on related volume effect is on the claimant. (22) The Damages Directive also includes rules applicable in the second scenario, i.e. when an indirect purchaser claims that it suffered harm due to the passing-on of overcharges. In this scenario, the burden of proving the existence and scope of such passing-on rests with the indirect purchaser seeking damages from the infringer. (23) However, the Damages Directive specifically addresses the difficulties that indirect purchasers face when they seek compensation for the harm resulting from the passing-on of an overcharge (27). Firstly, Article 14(1) of the Damages Directive and Recital 41 of the Damages Directive refer to the fact that it can be a commercial practice to pass on price increases down the supply chain. If such a commercial practice has been identified, national courts may rely on prima facie proof of passing-on. Building upon this reference, Article 14(2) of the Damages Directive stipulates a rebuttable presumption pursuant to which a claimant (i.e. the indirect purchaser) is deemed to have proved that a passing-on from the direct purchaser to the indirect purchaser occurred, provided that the claimant can show that the following conditions are fulfilled: (a) the defendant has committed an infringement of EU competition law (28); (b) the infringement of EU competition law has resulted in an overcharge for the direct purchaser of the defendant; and (c) the indirect purchaser has purchased the goods or services that were the object of the infringement of EU competition law, or has purchased goods or services derived from or containing them. (24) This presumption does not apply if the infringer can credibly demonstrate to the satisfaction of the court that the overcharge was not, or was not entirely, passed on to the indirect purchaser (29). (25) As a result of (i) the compensatory principle, (ii) the practice of passing-on of overcharges and (iii) the presumptions, mentioned above, it is possible that there are parallel claims from purchasers at different levels in the supply chain. In such situations, national courts should seek to avoid both over-compensation and under-compensation (30). This can be achieved inter alia by taking due account, as far as this is possible, of any actions for damages that are related to the same infringement of EU competition law, judgments resulting from such damages actions and relevant information in the public domain resulting from the public enforcement of EU competition law in the case at hand (31). It is in the interest of the parties to a damages action to make the national court aware of such actions, judgments or information and explain why they are relevant in the case at hand. (26) Further, where related actions are pending in the courts of different Member States, national courts may apply Article 30 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council (32) to which the Damages Directive makes reference (33). This article stipulates that national courts other than that first seized may stay proceedings or, under certain circumstances, may decline jurisdiction. The court of a Member State may also use national rules on stays, if they are available under national law. (27) In the interest of consistency between judgments resulting from related proceedings, national courts should also consider and allow for the use of appropriate procedural means that are at their disposal under national law. By way of example, the Damages Directive refers to the joinder of claims (34). It also refers to the possibility that a person may acquire the claim of another person (35). The goal of such acquisition may be to bring a joint action which may contribute to ensuring consistency between damages actions that are related to the same competition law infringement (36). (28) Depending on the national legal system, other instruments may be applied, such as collective redress mechanisms, third-party notices or interventions and rules on stays. For example, a direct purchaser may intervene in the damages action of an indirect purchaser against the infringer. In such a case, both the direct purchaser (the intervening party) and the infringer (defendant) may argue that the overcharge was not, or was not entirely, passed on to the indirect purchaser (claimant). (29) The availability of such procedural means may also become relevant when a national court rules on the proportionality of a disclosure request. For example, the joinder of a number of smaller claims may increase the total value of the claims pending before a court to an extent that this court considers the amount of data requested for a more costly expert analysis to be proportionate.

← 2.1 · All articles · 2.3 →

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