The European Commission is inviting comments on draft guidelines to help national courts estimate the share of price increases caused by a cartel that are passed on to indirect purchasers and final consumers. The Commission invites views and comments on the draft guidelines by 4 October 2018.
The Antitrust Damages Directive helps citizens and companies claim damages if they are victims of infringements of EU antitrust rules. This applies not only to direct customers of companies found participating in a cartel, but also to indirect customers and final consumers. These may also suffer harm when direct customers are able to fully or partially pass on a cartel overcharge further down the supply chain.
It is for national courts to decide upon the level of such compensation, on a case by case basis. However, determining the exact amount of overcharges passed on to indirect customers can be difficult. This is why the Damages Directive foresees that the Commission shall issue non-binding guidelines to help national courts estimate the share of the overcharge passed on to indirect purchasers.
The aim of the guidelines is to provide legal and economic guidance to national courts and the other stakeholders involved. The draft guidelines describe the procedural instruments available to national courts when assessing the existence of overcharges passed on to indirect customers, as well as the national courts’ power to estimate the amount of the overcharge that was passed on. The guidelines also provide an overview of the most common economic methods and techniques to quantify passed-on overcharges and are intended to complement the Practical Guide on Quantifying Harm issued in 2013.
Responses to the consultation can be submitted until 4 October 2018. The Commission will carefully review all input before finalising the guidelines.
The consultation document is available on the Commission’s website.
Infringements of EU competition law such as cartels or abuses of dominant market positions cause very serious harm, not only to the economy as a whole but also to particular businesses and consumers. They may suffer harm, for example, because of higher prices or lost profits due to foreclosure from a market.
These victims are entitled to compensation for this harm. They can obtain such compensation by bringing an action for damages before a national court. The Antitrust Damages Directive, which Member States had to implement in their legal systems by 27 December 2016, makes it easier for victims of anti-competitive practices to obtain damages.