The Defence of Passing On : Comparing Reasons in the Commission White Paper with those presented by the United States Antitrust Modernization Commission

The paper analyses the Commission White Paper on Damages actions for breach of the EC antitrust rules and the AMC Report and Recommendations. Specifically, the paper focuses on the reasons presented by both for allowing defendants to invoke the defence of passing on against claims for damages due to infringements of competition law.It is concluded in the paper that it is excessively difficult to assess who in the chain of distribution has absorbed any portion of an overcharge. If it becomes necessary to choose between the risk of awarding too little compensation and the risk of awarding too much compensation, it is submitted that it will serve the interest of deterrence best to risk awarding too much compensation. It is furthermore concluded that it is debatable whether a claimant is unjustly enriched when receiving too much compensation, and whether defendants should be protected against being liable in multiple damages.Paper presented at the 2009 Swedish Workshop on Competition Research, under the auspices of the Swedish Competition Authority, Stockholm, 24 April 200