Title: 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?
Authors: Parlak, Suleyman # ×
Issue Date: Mar-2010
Publisher: J. Werner
Series Title: World Competition Law and Economics Review vol:33 issue:1 pages:1-26
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 fi nds, after analyzing the US case law and the current economic discussion
around the passing-on issue, that it is too diffi cult for the judiciary to calculate the passing-on. This
paper fi nds 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 fi nds 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.
ISSN: 1011-4548
VABB publication type: VABB-1
Publication status: published
KU Leuven publication type: IT
Appears in Collections:Consumer Competition & Market
× corresponding author
# (joint) last author

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