Beyond ORWI: German Supreme Court continues clarifying the ‘passing-on defence’ in cartel damages cases

Cartel members sued for damages regularly invoke as a defence that the plaintiff passed on the overcharge resulting from their unlawful behaviour to its own customers (the ‘indirect purchasers’) and was hence not entitled to claim damages for it. In the well-known ORWI judgment of 28 June 2011 (KZR 75/10), the Federal Court of Justice […]

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Full steam ahead: German Supreme Court provides further guidance on ‘umbrella claims’ and the ‘passing-on defence’

Are there no public benefits from a hardcore cartel? The German Rails Cartel, at least, continues to contribute to the general development of private claims for damages resulting from an infringement of the EU cartel prohibition (Article 101 TFEU) and its national equivalent. From this perspective, it supports consumers, by promoting legal certainty for an […]

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German Supreme Court provides guidance on applicable law and standards of proof for causality and damage quantification in follow-on damage actions in light of recent CJEU case law

On 29 May 2020 the German Supreme Court (‘Bundesgerichtshof’) published two judgments (KZR 23/17 and KZR 25/17) in which it provides detailed guidance on the legal principles and the standard of proof to be applied for the substantiation of damages in follow-on damage actions in the light of EU law principles. These judgments are of wide interest […]

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Clarifying the reasonableness test in the proposed guidelines of the European Commission on the passing-on of cartel overcharges

Virtually each dispute over claims for damages resulting from an infringement of competition law includes the question of how to deal with the fact that a direct purchaser from an infringer might have passed on all or part of the illegal overcharge to its own customers and thus, directly or indirectly, even down to the […]

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TenneT vs ABB: The case and discussion about the passing-on defence continues

The discussion on the admissibility of the passing-on defence in the dispute between TenneT and ABB continued with the judgment of the Court of Appeal Arnhem-Leeuwarden (Gelderland) of 29 May 2018 (ECLI:NL:GHARL:2018:4876). The procedure concerns a follow-on damages action of the Dutch state-owned grid operator TenneT against ABB – and in a different procedure against […]

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