§2.3 The court's power to estimate passing-on

(30) Article 12(5) Damages Directive specifically requires Member States to ensure that national courts have the power to estimate, in accordance with national procedures, the share of any overcharge that was passed on. Such power must cover all passing-on effects, i.e. price and volume effect. This also follows from Article 17(1) of the Damages Directive which applies more generally to the quantification of harm. (31) When national courts make use of this power to estimate, they must take into account the rules and principles set out in the Damages Directive and the underlying CJEU jurisprudence. This means that even when courts estimate the harm that is causally linked to an infringement of Article 101 or 102 TFEU, this must be done on the basis of the principle of compensation. In other words, the respective award of damages must nevertheless aim at placing the victim in the position in which it would have been absent the infringement (see paragraph 12 above). To this end, national courts must also use their procedural instruments accordingly. In particular, they must apply the applicable rules on the burden and standard of proof so that the full effectiveness of Article 101 TFEU is not put at risk. (32) For example, the CJEU held in Kone that the victims of umbrella pricing may obtain compensation for the loss caused by an infringement of EU competition law, stating that the full effectiveness of Article 101 TFEU would be put at risk if national law categorically and regardless of the particular circumstances of the case excluded their right to claim compensation for harm suffered. Further, Kone highlights that in damages actions for infringements of EU competition law factual and legal questions of causation may arise. Such questions also arise in the context of passing-on (37). (33) Similarly, when national courts estimate, in accordance with national procedures, the amount of harm and share of any overcharge that was passed on, as foreseen in the Damages Directive, they must observe the abovementioned principles of equivalence and effectiveness. As regards the power to estimate, this means that national courts cannot reject submissions on passing-on merely because a party is unable to precisely quantify the passing-on effects. (34) Furthermore, the power to estimate, as stipulated in Article 12(5) of the Damages Directive and Article 17(1) of the Damages Directive, requires national courts to, firstly, base their assessment on the information reasonably available and, secondly, strive for an approximation of the amount or share of passing-on which is plausible. This follows from the Damages Directive which stresses the existence of information asymmetries and acknowledges that harm can hardly be quantified with perfect accuracy (38). The exercise of estimation is subject to national law. In fact, a number of Member States already had rules in place which correspond to the power to estimate, as foreseen in the Damages Directive (39). (35) In practice, national courts will often have to rely on assumptions, e.g. in relation to hypothetical prices, sales volumes or profit. They may have broad discretion as to both the figures and the statistical data to be chosen and, above all, as to the way in which they are to be used for the calculation and the assessment of damages (40). Moreover, assumptions are typically important when building a counterfactual for the purpose of quantifying passing-on and volume effects, as described in section 4 below. Due to this importance, it may be advisable to ask that in any type of submission to the court the assumptions are carefully laid out and the sensitivity of predictions to changes to the assumptions are made explicit, as the Directorate-General for Competition of the Commission requires in its ‘Best practices for the submission of economic evidence and data collection in cases concerning the application of Article 101 and 102 TFEU and in merger cases’ (‘Best Practices’) (41).

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