Under Article 13 of Directive No 2014/104, the defendant in an action for damages for harm suffered as a result of an infringement of competition rules can invoke as a defense against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement. In the Commission’s view, where an injured party has reduced the loss suffered by passing it on, in whole or in part, to its own purchasers, that loss no longer constitutes a compensable loss for the party that passed it on. Nevertheless, where the passing on has resulted in a decrease in sales and thus a prejudice in the form of loss of profit, the claimant retains the right to claim damages for this loss of profit. The burden of proof of the passing on of the additional cost and its scale lies with the defendant, who may legitimately demand the production of information by the claimant or by third parties.

Where the action is brought by an indirect buyer, Article 14 of the directive establishes a simple presumption that the additional cost has been passed on by the seller, provided that it can be shown that the defendant has committed an infringement of competition law, that this has led to additional costs for the defendant’s direct buyer and that the defendant himself has purchased the goods or services affected by the infringement of competition law, or has purchased goods or services derived from or containing them. The Commission has published a guidance document to assist national courts in estimating the share of the additional cost passed on to indirect purchasers (No 2019/C 267/07).