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Antitrust

Actions for Damages > Quantification of harm

Overview Damages directive Disclosure of Evidence Collective redress Quantification of harm

Guidance to national courts: Quantification of harm caused by infringements of the EU antitrust rules

The success of an antitrust damages action depends not only on an effective legal framework for compensation, but also on the quantification of the antitrust harm. Quantification can be a quite technical exercise. For this reason, the Commission has provided practical guidance assisting national courts in an estimation of antitrust harm on a case by case basis.

Passing-on Guidelines

Most recently, 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 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 Antitrust Damages Directive helps citizens and companies to get compensation if they are harmed by infringements of EU antitrust rules. This applies not only to direct customers of companies having participated 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 related price increase further down the supply chain.

It is for national courts to decide upon the level of such compensation in such cases. However, determining the amount of overcharges passed on to indirect customers can be particularly difficult. This is why Article 16 of the Damages Directive foresees that the Commission issues non-binding guidelines to help national courts estimate the share of the overcharge passed on to indirect purchasers.

Below please find the full text of the Passing-on Guidelines in all EU official languages:

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

Contributions to the public consultation.

Communication on antitrust harm and Practical guide

In view of quantification difficulties, the Commission early on adopted a more general Communication on quantifying harm in antitrust damages actions.

In the Communication, the Commission recalls the main existing principles that may help court and parties deal with this issue, 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:

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

The Commission's Communication on quantification is accompanied by a more comprehensive and detailed Practical Guide drawn up by the Commission's services. The aim of this Practical Guide is to offer assistance to both the national courts, and to the parties involved in actions for damages, by making the information relevant for quantifying the harm caused by antitrust infringements more widely available. The Guide illustrates and offers insights on the types of harm normally caused by anticompetitive practices. On top of that, the Guide offers an overview of the main methods and techniques available to quantify such harm in practice.

Below please find the Practical Guide in all EU official languages:

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

Preparatory work

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

The Directorate-General for Competition received the following contributions:

  • Ana Merino and Samantha Catalina Guerrero en pdf
  • Asociación Españla para la Defensa de la Competencia (AEDC) en pdf
  • Association Française d’Etude de la Concurrence (AFEC) fr pdf
  • Association française des entreprises privées (AFEP) fr pdf
  • Antitrust Litigation Investment Srl (ALI) it pdf
  • American Bar Association (ABA) en pdf
  • Bryan Cave Leighton Paisner LLP (BCLP) en pdf
  • Bundesverband der Deutschen Industrie (BDI) de pdf
  • Case Associates en pdf
  • Cartel Damage Claims (CDC) en pdf
  • Economic Insight en pdf
  • Hausfeld & Co en pdf
  • Linklaters en pdf
  • Oxera en pdf
  • Simmons & Simmons en pdf
  • Stewarts LLP en pdf
  • Studienvereinigung Kartellrecht de pdf

The preparatory work of the Commission in relation to these projects has also greatly benefitted from:

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