§2.4 The role of evidence

(36) The legal assessment of passing-on typically requires a complex factual and economic analysis. While the taking of necessary evidence generally forms an important element in every action for damages resulting from infringements of Article 101 or 102 TFEU, the role of evidence on passing-on varies depending on the two scenarios mentioned above and the extent to which a presumption applies (42). In any case, the facts that are actually relevant and available may determine the taking of evidence and ultimately the assessment of passing-on. (37) The type of evidence necessary to show and quantify passing-on will depend on which of the economic methods, described in sections 5 and 6 below, is used. Evidence may be categorised in different ways but it is typically divided into qualitative and quantitative evidence. The Damages Directive itself makes clear that ‘evidence’ means all types of means of proof admissible before the national court (43). This could include the following: — qualitative evidence to understand a firm's business behaviour or pricing strategies comprising e.g. (i) contracts, (ii) internal documents, (iii) financial and accounting reports, (iv) witness statements, (v) expert opinions as well as (vi) industry reports and market studies; or — quantitative evidence relating particularly to data for the use of econometric techniques (44), such as (i) sales prices, retail and end consumer prices of the product or service in question, and of comparable products or services, (ii) financial reports, (iii) expert opinions (iv) prices set by regulation, (v) volume sales, (vi) rebates as well as (vii) other input costs and cost elements. As can be drawn from the non-exhaustive lists immediately above, certain types of evidence may qualify as both qualitative and quantitative evidence, e.g. financial reports and expert opinions. (38) As explained more generally in the Practical Guide, normally, the specificities of the case at hand and the evidence provided are the starting point for establishing if the infringement has in fact harmed the claimant, and, if this is the case, for determining the quantum of that harm (45). The relevant evidence may include direct evidence which, at least in the context of passing-on, can be understood as covering documents produced by the direct or indirect purchaser as well as witness statements on whether the overcharge has been passed on. The availability of such evidence may play an important role when a court decides whether any, and if so which, of the methods described below can be used by a party to meet the required standard of proof under the applicable law. (39) Further, when it comes to the assessment of passing-on, national courts often face economic expert opinions. Depending on the means available under national law, these opinions may be submitted by party-appointed experts, by an expert that the court itself has appointed for the purpose of assistance, or by both party and court-appointed experts. To the extent possible, the national court may wish to guide any of these economic experts, potentially at an early stage of the proceedings when parties request the disclosure of evidence, and ask more concrete questions in relation to the quantification method to be used and the data needed. Such guidance and questions can be relevant for case management purposes but also for the substantive assessment. In particular, as mentioned above, when national courts estimate passing-on effects they may consider whether an economic expert opinion complies with best practices, e.g. whether it carefully lays out the relevant assumptions and the sensitivity of predictions to changes to these assumptions. In the same vein and again subject to national law, national courts may ask economic experts to address alternative explanations for their findings, ensure replicability and let the parties comment. (40) The Damages Directive aims to ensure the effective exercise of rights and equality of arms by stipulating rules to request the disclosure of evidence. Such rules apply in both passing-on scenarios mentioned above. As regards the scenario in which passing-on is used as a defence, Article 13 of the Damages Directive specifically mentions that the defendant may reasonably require disclosure from the claimant or from third parties. In a scenario in which an indirect purchaser seeks compensation, Article 14(1) of the Damages Directive stipulates that this indirect purchaser may reasonably require disclosure from the defendant or third parties. (41) These rules of the Damages Directive limit disclosure of evidence in the sense that the party bearing the burden of proving the existence and scope of passing-on may only reasonably require disclosure. In line with the general rules on disclosure stipulated in Article 5 Damages Directive, the national court may require that the requesting party has made a plausible assertion that the overcharge harm has been passed on by the direct purchaser onto the indirect purchaser. The requesting party must also use the facts which are already reasonably available to it. In the context of passing-on, this may include information gathered during the course of business with the other party or information reasonably available from third parties, such as market intelligence providers. (42) The first sentence of Article 5(3) of the Damages Directive establishes a general principle of proportionality in the sense that it requires national courts to ‘limit the disclosure of evidence to that which is proportionate’. This principle is important for case management in damages actions resulting from infringements of Article 101 or 102 TFEU. As mentioned above, judges apply national procedural rules and must pay particular attention to the principles of effectiveness and equivalence. However, within the scope of these legal rules, national courts may take into account the costs and benefits of ordering the requested disclosure. For example, this means that national courts may come to the conclusion that the evidence presented by the parties already allows them to estimate the share of the overcharge that was passed on instead of gathering further data. (43) Evidence may be requested from the other party or third parties through and under the strict control of the national court. The request must concern specific items or categories of evidence (46). Provided that the national court considers the general principles of proportionality and the protection of legitimate interests, it may even order the disclosure of evidence containing confidential information to the party bearing the burden of proving passing-on effects. For example, this information may include documents or data on revenues, prices or margins. However, when ordering the disclosure of such evidence, it is crucial for the national court to have measures in place to protect the confidential information (47). By way of example, the Damages Directive refers to a few measures, such as the possibility of redacting sensitive passages in documents, conducting hearings in camera, restricting the persons allowed to see the evidence, and instructing experts to produce summaries of the information in an aggregated or otherwise non-confidential form (48). In accordance with national law, national courts may also consider the measures referred to in the Best Practices, such as a data room procedure (49), and in Article 9(2) of the Trade Secrets Directive (50). (44) Disclosure of evidence included in the file of a competition authority could potentially be relevant for the quantification of the overcharge but is generally less relevant in the context of passing-on (in particular because the passing-on of overcharges deals with the pricing behaviour of the purchasers on which the file of a competition authority typically does not include any information). Further, the public version of the infringement decision may include more general information that can be relevant, such as information on which products or services were subject to the anti-competitive conduct. As Article 6(10) of the Damages Directive provides, disclosure of evidence from a competition authority is only a measure of last resort. (45) Finally, as indicated in Article 15(1) of the Damages Directive, actions for damages related to the same infringement of EU competition law and related judgments may also form a source of information relevant for the quantification of passing-on.

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