Private Damage Claims due to Breaches of EC Competition Law - and the implications of standing for indirect purchasers and the linked usage of the passing-on defence

Abstract: This thesis is inspired by the recent development within the Community concerning the standing of private parties to claims damages for harm caused by a breach of the EC antitrust rules. The European Court of Justice (ECJ) declared, in the cases of Courage and Manfredi, that this is a right deriving from the Treaty. In the wake of this change, the Commission has issued a Green Paper followed by a White Paper on the issue. This has initiated a wild debate regarding the possible ways to proceed from the prevailing legal status. Is it time for the legislature to intervene or should it be left out to the national authorities, with the guidance of the ECJ case law, to solve the problems and questions surrounding it? Nonetheless, this transition includes numerous major subjects that need to be resolved. This thesis will focus on one of the most prominent issues, namely the right to obtain reparation for all of the indirect purchasers that are harmed by an anti-competitive conduct and the closely linked possibility for the defendants in such a situation to use the passing-on defence. The purchasers that have a direct connection with the infringer often pass on the illegal overcharge along the distribution chain down to private undertakers and individuals. A question therefore arises if, and how, these indirect purchasers will recover their losses. The ECJ has ruled, in the cases mentioned, that ''any individual'' should be able to claim damages before the national courts for the harm suffered, as long as they can show a causal link between the harm and the violation. When safeguarding this right in the absence of Community law, the detailed provisions was left to the Member States to regulate as long as it did not lead to any unjust enrichment and as long as the principles of equivalence and proportionality are respected. The debate on this has almost solely considered that the wording of the ECJ grants indirect purchasers this right. However there are still uncertainties regarding the detailed regulation on the matter and to which extent the Member States discretion reaches. The passing-on defence has been even more scrutinized. This defence is supposed to grant a tool to the defendant against claimants who has already passed on, the whole or parts of, the overcharge that he seeks to obtain. Permitting or prohibiting the passing-on defence necessarily goes hand-in-hand with the availability of indirect purchasers' possibility or hindrance to claim damages. Otherwise there are great risks of overcompensation or unjust enrichment. The White Paper puts forth different Policy Options and specific measures on how to ensure that victims of anti-competitive behaviour are able to exercise their right to achieve full compensation for the harm caused, through an efficient procedure. The Commission examines the specific matters of the standing of indirect purchasers and the passing-on defence, and presents detailed suggestions on how these issues should be resolved by legislative measures. Invited commentators have been mainly negative towards a legislative intervention and believe that the issues will be resolved by national authorities and the ECJ case-law. In sum, there are still great uncertainties surrounding this area and its future developments but the attention that has been drawn to the problems demands some adjustments.