§7 CHOICE OF METHOD

(153) The choice of a method to estimate the passing-on related price and volume effects will usually depend on a range of aspects. For instance, if the claimant and the defendant rely on different methods and the application of these methods leads to contradictory results, it is normally not appropriate to consider the estimated passing-on to be the average of the two results, nor would it be appropriate to consider that the contradictory results cancel each other out in the sense that both methods should be disregarded. As mentioned in the Practical Guide, in such a scenario it would rather be appropriate to examine the reasons for the diverging results and to consider the strengths and weaknesses of each method and its implementation (113). (154) The different techniques for the estimation of passing-on related price and volume effects provided in sections 5 and 6 vary in complexity and data requirements, from analyses based on qualitative evidence on the one hand to econometric techniques (114) based on quantitative data on the other. Different techniques also imply different accuracies in estimating the various effects. (155) In this context, there is no technique that could be singled out as the one that would in all cases be more appropriate than others. The use of econometric techniques is an example of this. In most cases, the implementation of such techniques may increase the degree of accuracy of an estimate. However, such techniques usually require a significant amount of data which may not always be available. Hence, the gathering of data and their economic analyses may entail considerable costs for the parties, third parties and the court. These costs may be disproportionate to the amount of damages in question. (156) When estimating the passing-on effects, national courts may use pieces of direct evidence relevant for the case. For instance, internal documents or other documents of a qualitative nature produced by the direct or indirect purchaser regarding the relationship between the overcharge and changes in its own prices. If this type of evidence is available, the court may find it sufficient to estimate the passing-on related effects (price and volume effects) by taking into consideration qualitative evidence or making adjustments to the quantitative data without the use of a regression analysis. Hence, the availability of qualitative evidence may play an important role when a court decides whether any or which of the quantitative techniques set out in the sections above can be used by a party to meet the required standard of proof under the applicable law (115).

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