Tackling pass-on in cartel cases: a comparative analysis of the interplay between damages law and economic insights

Abstract

Thinking in terms of supply chains, a crux with a view to antitrust damages is the fact that calculations (of market participants and hence also within legal proceedings) do not stop at the bilateral trader relation but go beyond this two-sided interaction. More often than not victims of antitrust violations pass-on part or all of the harm, to the next level in the supply chain. Under certain conditions this is beneficial for the victim and has to be subtracted from the original amount of damage. Legal benchmarks apply and economics knowledge is of the essence. Focussing on damage stemming from a cartel agreement this paper will first sketch the economic conditions for passing-on. Next, a comparative analysis of recent jurisprudence on passing-on in three jurisdictions (Germany, the Netherlands and Spain) is carried out. It can overall be shown that to successfully tackle cartel cases involving passing-on the potential of an interdisciplinary approach between law and economics needs to be exploited far more than it is currently done.