There are three distinct elements that make up the recoverable harm potentially suffered by a claimant. First, there is the increase in the claimant’s costs (“the overcharge”) that may be brought about by the infringement: in legal terms, actual harm or direct loss (damnum emergens). Such harm may arise directly or because of “upstream” pass-on by a direct or indirect purchaser that supplies the claimant. Second, the adverse impact of the overcharge on the claimant may be reduced if it passes on some or all of that overcharge to its own customers, by means of a price increase. This is the “passing-on” effect. Whilst such “downstream” passon reduces the actual harm suffered by the claimant in question, it will do so at the expense of causing harm further downstream. Indeed, the pass-on effect at one level of the supply chain implies an overcharge of the same magnitude at the next level downstream; they are two sides of the same coin. In litigation, pass-on can, therefore, serve as a “sword”, where an indirect purchaser alleges that an overcharge has caused it harm because of upstream pass-on. It can also be used as a “shield”, where a defendant alleges that downstream pass-on by a claimant has reduced the actual harm the latter has suffered. Third, to the extent that a claimant suffers a loss of sales volumes as a consequence of pass-on, it will lose the profit margins associated with those sales. This so-called “volume effect” constitutes recoverable loss of profit (lucrum cessans) in legal terms and forms part of the overall damage calculation. Whenever a firm increases its prices, it will almost invariably suffer such a loss of sales volumes. It is the extent of this prospective loss, which hinges on the sensitivity (or elasticity) of a firm’s demand to price increases, that tempers the extent of passing-on in the first place (Study on the Passing-on of Overcharges, Final Report, RBB Economics and Cuatrecasas, Goncalves Pereira, 2016).
Passing-on
A
Absolute territorial protection
•
Abuse of dominant position
•
Abuse of economic dependence
•
Access to essential facility
•
Access to information
•
Access to the file
•
Agency agreement
•
Agent
•
Agreement (notion)
•
Amicus curiae
•
Ancillary restraints
•
Annulment
•
Anticompetitive objet or effect
•
Anticompetitive practices
•
Applicable law
•
Arbitration
B
C
Cartel
•
Clearance phase I (merger)
•
Clearance phase II (merger)
•
Collecting society
•
Collective dominance
•
Collective redress (class action)
•
Comity
•
Competence
•
Competition policy
•
Competition policy
•
Complaint
•
Compliance programme
•
Compulsory license
•
Concerted practices
•
Concession
•
Concurrent jurisdiction
•
Consumers protection
•
Consumers’ associations
•
Control (change)
•
Control (notion)
•
Cooperation Agreement
•
Cooperation between competition authorities
•
Coordinated effects
•
Copyright
•
Corporate group
•
Corruption
•
Cost-based access
•
Criminal sanctions
•
Cross subsidisation
D
E
ECHR
•
Economic analysis
•
Economic efficiency
•
Economies of scale
•
Effect on trade between Member States
•
Effective judicial protection
•
Environmental protection
•
Essential facility
•
European Competition Network (ECN)
•
Excess prices
•
Exchanges of information
•
Exclusive distribution
•
Exclusive purchasing
•
Exclusive right (Art. 106 TFEU)
•
Exclusivity clause
•
Exhaustion
•
Extra-territoriality
F
I
M
P
Parallel imports (parallel trade)
•
Passing-on
•
Pay-for-delay
•
Periodic penalty payment
•
Personal data
•
Potential Competition
•
Predatory pricing
•
Preliminary ruling (Art. 267 TFUE)
•
Price discrimination
•
Price-fixing agreement
•
Prices
•
Principle of effectiveness
•
Principle of equal treatment
•
Principle of equivalence
•
Principle of proportionality
•
Private enforcement
•
Privatization
•
Procedural autonomy
•
Professional association
•
Public procurement
•
Public undertaking
R
S
Sector inquiry
•
Selective distribution
•
Services of general economic interest
•
Single branding
•
Sole control
•
Spill-over effects
•
Standard-Essential Patent (SEP)
•
State action defense
•
State aid (compatibility)
•
State aid (existing aid)
•
State aid (notification)
•
State aid (notion)
•
State aid (recovery)
•
State aid (tax ruling)
•
State aid (unlawful aid)
•
State measure
•
Sudden break of established business relationships