European Private Antitrust Litigation: passing-on defense and indirect purchaser standing - finding a consumer-orientated option

Abstract: Private enforcement of antitrust law has recently become an important issue in Europe. Most obviously, Europe and its businesses and citizens would profit from a stronger competition culture. It can be assumed that an appropriate degree of private enforcement can promote this. In the Courage the ECJ expressed its support of private enforcement, indicating that ''the existence of such a right strengthens the working of the Community competition rules... [and] make[s] a significant contribution to the maintenance of effective competition in the Community''Courage v. Crehan, Case C-453/99 [2001] ECR I-6297, para 57. . Therefore, in the light of current work of the European Commission in facilitating private enforcement actions for the breach of the EC competition law, it is interesting to follow the way of ongoing findings and producing binding measures at Community level. This process is going with the Commission's collaboration with the market undertakings, government representatives and academics of both European and international dimensions. One of the most controversial issues in relation to private enforcement is the passing-on defense and a right of an indirect purchaser to sue the infringer. These issues are the most vexed question in European private competition law litigation and they will be central of the whole paper. The purpose of this paper is to discuss the consumer-welfare orientated combination of the passing-on defense and indirect purchaser standing which would protect at most, the European consumer. Furthermore, the paper gives an insight into the legal background of the substantive right on bringing private actions for damages in the EU, the characteristics of US private litigation system as well as the American indirect purchaser rule. The defenders of a certain combination of passing-on defense and indirect purchaser standing and their opponents raise arguments within a particular circle of issues. The central idea, however, which unites all arguments of defendants and opponents is the orientation of the EU competition policy on the welfare society.