Passing-on Defence and Indirect Purchaser Standing: Should the Passing-on Defence Be Rejected Now the Indirect Purchaser Has Standing after Manfredi and the White Paper of the European Comm

Abstract

The European Court of Justice (ECJ) recognized in Courage v. Crehan and recalled in Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA the right of ‘any’ individual to claim damages for infringements of Articles 81 and 82 EC. As a reaction to both judgments, the European Commission published, after the Ashurst report, a Green Paper and later a White Paper on damages actions for breach of EC antitrust rules. Two of the obstacles that private parties face in antitrust damages action are the indirect purchaser standing and the passing-on defence. This paper analyses both the indirect purchaser standing and the passing-on defence in a comparative law perspective, between the law of the United States and EC law. This paper finds, after analyzing the US case law and the current economic discussion around the passing-on issue, that it is too difficult for the judiciary to calculate the passing-on. This paper finds therefore that the choice to allow or reject both the passing-on defence and indirect purchaser standing is policy related. Finally, the passing-on defence and indirect purchaser standing in the EU and the European Commission’s White Paper is discussed. This paper finds that the European Commission’s choice to allow both the indirect purchaser standing and passing-on defence is justified from the perspective of policy considerations. Nevertheless, this paper concludes that the European Commission did not succeed in providing strong solutions to the problems that are associated with the indirect purchaser standing and the passing-on defence.