Antitrust damages actions – Commission publishes study on obtaining and assessing economic evidence for passing-on of overcharges

This study can be found here.

Executive summary:

This Study is intended to provide judges, and other practitioners who are not economic experts, with practical guidance on obtaining and assessing economic evidence in relation to pass-on in the context of competition law infringements. Drawing on relevant economic theory and quantitative methods, as well as relevant legal practice and rules, it sets out a framework for evaluating the plausibility of claims, for quantifying the effects of pass-on, and, accordingly, for assessing the total extent of the harm suffered by a claimant. EU Directive 2014/104 establishes that any person who has suffered harm caused by a competition law infringement may claim full compensation for that harm. This includes the possibility of indirect claims, which arise when those that are not directly affected by such an infringement (notably, indirect purchasers) are nevertheless harmed as a result of changes in the behaviour of directly affected firms (the direct purchasers) as well as, potentially, other intermediate firms. There are three distinct elements that make up the recoverable harm potentially suffered by a claimant.

First, there is the increase in the claimant’s costs (“the overcharge”) that may be brought about by the infringement: in legal terms, actual harm or direct loss (damnum emergens). Such harm may arise directly or because of “upstream” pass-on by a direct or indirect purchaser that supplies the claimant.

Second, the adverse impact of the overcharge on the claimant may be reduced if it passes on some or all of that overcharge to its own customers, by means of a price increase. This is the “passing-on” effect. Whilst such “downstream” pass on reduces the actual harm suffered by the claimant in question, it will do so at the expense of causing harm further downstream. Indeed, the pass-on effect at one level of the supply chain implies an overcharge of the same magnitude at the next level downstream; they are two sides of the same coin. In litigation, pass-on can, therefore, serve as a “sword”, where an indirect purchaser alleges that an overcharge has caused it harm because of upstream pass-on. It can also be used as a “shield”, where a defendant alleges that downstream pass-on by a claimant has reduced the actual harm the latter has suffered.

Third, to the extent that a claimant suffers a loss of sales volumes as a consequence of pass-on, it will lose the profit margins associated with those sales. This so-called “volume effect” constitutes recoverable loss of profit (lucrum cessans) in legal terms and forms part of the overall damage calculation. Whenever a firm increases its prices, it will almost invariably suffer such a loss of sales volumes. It is the extent of this prospective loss, which hinges on the sensitivity (or elasticity) of a firm’s demand to price increases, that tempers the extent of passing-on in the first place.

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