Overvæltningsargumentet i EU-konkurrenceretten

Mie Degn Andersen & Maria Camilla Vissing Rossmann

Student thesis: Master thesis


The EU competition law contains barriers that hamper the consumer’s ability to obtain damages due to breach of the antitrust law. The consumer’s ability to obtain damages is complicated further by the existence of the passing-on defence. Consequently, the European Commission published a Green and White Paper on Damages Actions for Breach of the EC antitrust rules. The purpose of those papers is to make the EU competition rules more effective and to ensure that the victims of EU antitrust infringements are given access to effective redress mechanisms so that they can be fully compensated for the harm they suffered. The focus of this master thesis is the passing-on defence in the EU competition law. We define the current EU law as the opportunity for an offender of the EU competition law to use the passing-on defence as a way of reducing the damages to the direct purchaser by the amount passed on by the direct purchaser to the indirect purchaser. In the EU law, this passing-on defence is allowed. In the economic part of this thesis, we analyse the different market conditions to determine if and when passing-on is possible. The economic theory states that passing-on will occur in most circumstances, which leads to the conclusion that, in general, the indirect purchaser will suffer an economic loss. Based on the economic theory, the passing-on defence should be allowed if the injured party should be compensated for the loss it suffered. Allowing the passing-on defence requires that the pros and cons of the effectiveness of the competition rules should be weighed. This thesis will take the economic conclusions, as well as the above pros and cons in consideration in the last chapter which includes our suggestions as to how the damage rules concerning passing-on should be designed. We suggest that the passing-on should be denied as a defence, but allowed as an offence. This suggestion gives the indirect purchaser the opportunity to sue for damages from the direct purchaser instead of the offender. This will, in effect, ensure that the effectiveness of the competition rules is maintained and that the injured party will be compensated for the loss it suffered. In addition, the above suggestion will uphold the deterrent effect which will make the competition rules more effective. The problem with this suggestion is that it is in contravention of the current law, which can be problematic should our suggestion be implemented in practice. If our suggestion is rejected, we recommend that the White Paper’s proposal should be implemented in the EU law.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2010
Number of pages123