Cartelists often defend themselves with the passing-on defence. This means that the buyer of the cartel-induced overpriced products is said not to have suffered any damage because he passed on the cartel-induced price surcharge to his customers.
This is based on the basic idea of the law of damages, according to which the injured party should not claim higher damages than the damage actually incurred. On a case-by-case basis, the objection of passing on cartel damages to the next market level may be appropriate. For example, direct customers of a cartelist can compensate for an excessive cartel price by transferring or passing it on to their own customers by increasing their price. The cartelist could therefore - if legally possible - reduce the damage compensation of its direct customers by the amount that this direct customer has transferred to the indirect customers. Whether the objection of passing on damages is allowed depends on the legal requirements. These differ in the individual EU member states.
In order to determine the likelihood of pass-on, relevant factors are estimated using econometric modelling based on economic theories.
EE&MC is able to take into account the quantity effect in addition to the damage pass-on.