Volume 55 (2018) / Issue 6
In dealing with defences raised in 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 shows, 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.
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