§5.2.2 Implementing the passing-on rate approach in practice

(128) The passing-on rate approach requires information on the initial overcharge and the relevant passing-on rate. If no prior estimation of the overcharge is available, the court may consider the techniques mentioned in the Practical Guide (102). (129) An advantage of the comparator-based method is that it allows for the construction of a counterfactual. As mentioned in paragraph 66 above, the purpose of this exercise is to isolate the effect of the infringement from other factors also affecting prices. While the passing-on rate method does not allow for such an approach, it is still important to control for factors that are not related to the infringement. One approach may be to use quantitative techniques, for instance regression analysis (103). For instance, in the example in Box 1 above, a court may take into account an analysis of the relationship between the prices charged by the wire harnesses supplier and changes in the input costs of wire harnesses. However, other factors may have also affected the price at the downstream level, e.g. fluctuations in the demand of car manufacturers. If the court fails to take into account such additional factors, the estimated passing-on rate will most likely be biased. (130) A regression analysis typically requires a large amount of data on costs and prices. Thus, for the purpose of estimating the passing-on rate, the court may alternatively consider whether estimates from other sources could provide a reasonable estimate for the passing-on rate. Examples of such other sources may include passing-on rates found in other cases concerning the same industry or in other industries, academic studies relevant for the industry in the case at hand or evidence provided in witness statements. This is a particularly viable alternative when the necessary data is not available or quantitative methods fail to include relevant control factors. (131) However, it is crucial to be aware that estimates based on other sources bear the risk of not taking into account factors relevant for the passing-on rate in the case at hand. In particular, it may be important to consider the methodology underlying the estimate found in other sources and the sensitivity of any result to potential differences between such an estimate and the passing-on rate. To do this, the court may take into account the relevant insights from economic theory, as explained in section 2.3 above and in Annex 1, such as the degree of competition. If there is only limited information, e.g. on the different market conditions or how the passing-on rate was determined, the passing-on rate approach may not be suitable.

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