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 Commission?

摘要

The European Court of Justice (ECJ) recognized in Courage v. Crehan and recalled in VincenzoManfredi v. Lloyd Adriatico Assicurazioni SpA the right of ‘any’ individual to claim damages forinfringements of Articles 81 and 82 EC. As a reaction to both judgments, the European Commissionpublished, after the Ashurst report, a Green Paper and later a White Paper on damages actions for breachof EC antitrust rules. Two of the obstacles that private parties face in antitrust damages action are theindirect purchaser standing and the passing-on defence. This paper analyses both the indirect purchaserstanding and the passing-on defence in a comparative law perspective, between the law of the UnitedStates and EC law. This paper fi nds, after analyzing the US case law and the current economic discussionaround the passing-on issue, that it is too diffi cult for the judiciary to calculate the passing-on. Thispaper fi nds therefore that the choice to allow or reject both the passing-on defence and indirect purchaserstanding is policy related. Finally, the passing-on defence and indirect purchaser standing in the EU andthe European Commission’s White Paper is discussed. This paper fi nds that the European Commission’schoice to allow both the indirect purchaser standing and passing-on defence is justified from the perspectiveof policy considerations. Nevertheless, this paper concludes that the European Commission did not succeedin providing strong solutions to the problems that are associated with the indirect purchaser standing andthe passing-on defence.