The Passing-On Problem in EU Law Damages and Restitution

Abstract: In this thesis, the so-called passing-on problem is examined for the purposes of EU law. The passing-on problem may arise when an amount has been charged unlawfully, in whole or in part, and paid by a commercial enterprise. If the charge was contrary to EU law, the payer will usually claim the amount back by way of an action for restitution or damages. However, it has been counter argued that the amount cannot be claimed back by the payer, because it has been passed on to the next level of the supply chain. Under such circumstances, it must be determined who should be able to claim what portion of the original charge from whom, and whether it is also possible to claim for reduced sales due to an increased selling price.In this thesis, the main EU law issues triggered by passing-on are identified; ie access to court, substantive proximity (eg causation), and the estimation of awards. In the assessment, actions are distinguished with regard to the type of respondent targeted. Accordingly, actions against the EU, against a Member State, and against private individuals are all examined individually. In respect of actions brought against private individuals, EU law has so far only required for private individuals to be liable in damages for a breach of EU competition law. It is examined whether an action for restitution should equally be available under such circumstances. It is also separately examined whether horizontal liability in damages and/or restitution can be more generally available for a breach of EU law. Reasoned suggestions for solutions to all these EU law issues are offered, both in the course of discussions and in the final conclusions.It is emphasized that the passing-on problem in EU law does not only fall under the jurisdiction of the EU legislature and EU Courts, but also of the Member States. It is also noticed that the legal context has an impact on the EU law issues examined. It is finally submitted that a mixed restitution/damages approach offers the best opportunity to reconcile the various interests at stake in the passing-on problem.