§4.2 The use of economic experts

(80) In many cases where passing-on of overcharges is assessed, economic experts may be involved in damages actions before national courts. The rules on expert evidence vary significantly between the Member States (70). In any case, national courts may find it helpful to have guidance on general principles and tools relevant for the involvement of economic experts. (81) Early in the proceedings, the court may, if the national legislation allows it, facilitate a discussion between experts representing the parties involved. Such discussions may aim at narrowing down areas of agreement and disagreement on issues relevant to the case, including issues related to disclosure requirements. An example of such an approach is provided in Box 3 below. Box 3 Example of a case involving evidence provided by economic experts In a case before a UK court, economic experts representing each side (the infringer and the claimant) had proposed their own distinct method for estimating passing-on. The judge expressed concerns about the potential complexity of the expert evidence and requested the parties' experts' to reach an agreement on the proposed approach to economic evidence on passing-on before any disclosure was ordered. If the experts failed to reach an agreement on the approach, the judge would hear submissions on the respective approaches, including an explanation of what each expert proposed, the information required and the cost of the exercise, and then decide which method should be applied. (82) In some jurisdictions national courts may appoint economic experts who assist the judge when estimating passing-on and they have traditionally taken this approach to estimate the initial overcharge. The court may employ a similar approach when estimating passing-on, e.g. by using the so-called comparator-based methods. The experience from using court-appointed experts when estimating the overcharge may, therefore, also be relevant for the estimation of passing-on. An example of an approach where the court has appointed an economic expert is provided in Box 4 below. Box 4 Example of a case in which the court appoints an economic expert In a case before a German court, an economic expert was appointed by the court. The expert's task was to propose a methodology and subsequently quantify the overcharge. As a first step, the expert proposed an empirical method for estimation of the overcharges. The approach suggested by the expert was discussed in written format and in oral hearings before the court decided on which approach to take. In the next step, the chosen method was applied and overcharges were calculated. The underlying data used for the calculations was submitted to the court and to the parties. The third step was a robustness check according to which the parties were given the opportunity to give comments and ask questions. These comments were taken into account in a final assessment delivered to the court. The final assessment also considered the plausibility of the estimated results, the robustness of the estimated effects and the quality of the underlying data. (83) In a case in which the economic experts representing the parties have conflicting views on which approach to employ in order to estimate passing-on, the national court may also seek advice from the national competition authority on which method to employ (73). Moreover, to assess the degree of passing-on, a national court may in principle also rely on information included in a decision issued by a competition authority, e.g. regarding the initial overcharge (74).

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