Passing-on defence

In the event of a cartel damage claim, defendants could in principle use a “passing-on defence”. They can argue that a pass-on effect should reduce the amount of the plaintiff´s claim. If the pass-on defence is allowed or not depends on the jurisdiction since it varies between the relevant EU Member State.

Direct customers of an infringer occasionally offset the increased cartel price by raising the prices they charge to their own customers. When this occurs, the infringer can reduce compensation to his direct customers by the amount they passed on to indirect customers.

EE&MC applies econometric modelling techniques to economic principles capable of estimating the elements that determine the likelihood of a pass-on effect. We employ analytical and behavioral arguments backed up with concrete evidence for the total discount to be applied to the overcharge of the cartel, taking into account both the pass-on and the output effects.