EU and National Approaches to Passing On and Causation in Competition Damages Cases

24 Pages Posted: 11 Dec 2018 Last revised: 5 Feb 2019

See all articles by Pedro Caro de Sousa

Pedro Caro de Sousa

Organization for Economic Co-Operation and Development (OECD)

Date Written: October 6, 2018

Abstract

In dealing with defences raised in cases of damages claims following competition infringements, national courts have often adopted an openly “legal approach” to passing on, rather than a more economic approach which would, in theory, lead to a more accurate allocation of losses between different levels of the production or distribution chain affected by a competition infringement. This article examines whether such “legal approaches” infringe the rules on passing on and the principle of full compensation set out in EU law, e.g. the EU Damages Directive. Legal approaches to passing on must comply with European law, and must not be such as to make it practically impossible or excessively difficult to rely on passing on. As this article showed, there is nothing to prevent such an objective from being achieved through the deployment of national doctrines on the calculation of damages or on the basis of national rules of evidence and causation, as national courts have been doing.

Keywords: Competition Law; Private Enforcement; EU Law; Passing On; Causation; Principle of Effectiveness

JEL Classification: K13, K21, K34, K41, K42

Suggested Citation

Caro de Sousa, Pedro, EU and National Approaches to Passing On and Causation in Competition Damages Cases (October 6, 2018). Common Market Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3279341

Pedro Caro de Sousa (Contact Author)

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

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