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Antitrust

Actions for Damages > Quantification of harm

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Quantification of harm: Commission’s Passing-on Guidelines and Practical Guide

The success of an antitrust damages action does not only depend on a legal framework that effectively allows for compensation but also on the quantification of the harm suffered by the victim. Quantification of such a harm can be a quite technical and complex exercise. For this reason, the Commission has provided practical guidance to assist national courts that must estimate antitrust harm on a case-by-case basis.

Passing-on Guidelines

In 2019, the Commission issued guidelines for national courts on how to estimate the share of the overcharge which was passed on to the indirect purchaser. These so-called Passing-on Guidelines are meant to provide practical guidance to national courts and stakeholders by reference to the applicable legal context, the relevant economic theory and quantification methods in the specific passing-on context.

The roots of the Passing-on Guidelines trace back to the Directive that helps citizens and companies to get full compensation if they are harmed by infringements of EU antitrust rules. More specifically, the rules of the Directive clarify that this principle of full compensation does not only apply to direct customers of companies that infringed competition law but also to indirect customers of such infringers. These indirect customers, including consumers, may suffer harm when direct customers are able to fully or partially pass-on a cartel related price increase further down the supply chain.

It is for national courts to decide upon the level of compensation in damages actions before them. However, since it may be particularly technical to quantify passing-on effects, Article 16 of the Directive explicitly provided that the Commission adopts non-binding guidelines to help national courts when they estimate the share of the overcharge passed on to indirect purchasers.

Passing-on Guidelines in all EU official languages

The Passing-on Guidelines were subject to a targeted consultation in 2018 in which stakeholders submitted views and comments to the Commission.

Communication on antitrust harm and Practical guide

Before the adoption of the Directive and the more specific Passing-on Guidelines, the Commission had already given more general guidance on the quantification of harm, namely in its Communication on quantifying harm in antitrust damages actions and the accompanying Practical Guide.

In the Communication, the Commission recalled existing principles that govern damages actions for infringements of EU competition law, such as the requirement that national rules on quantification should not make it excessively difficult or practically impossible to obtain compensation for the harm suffered. The full text of the Communication is available in all official languages on Eurlex.

Alongside the Communication on quantification, the Commission adopted a Practical Guide that provides more comprehensive and detailed guidance. Drawn up by the Commission's services, the aim of this Practical Guide is to offer assistance to national courts and all relevant stakeholders that face quantification questions in relation to damages actions for antitrust infringements. To this end, it sets out the types of harm normally caused by anticompetitive practices and provides an overview of the main methods and techniques available to quantify such harm in practice. The Practical Guide should be read together with the Passing-on Guidelines.

Below please find the Practical Guide in the form of its EN original version and convenience translations in all other EU official languages:

pdf bg cs da de el en es et fi fr hu it lt lv mt nl pl pt ro sk sl sv

Preparatory work

The preparatory work of the Commission in relation to the Passing-on Guidelines and the Practical Guide has greatly benefited from:

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