Passing-on defence in antitrust damages actions : critical analysis against the background of the directive, case law and civil law institutions

Bibliogr. s. 79-80

The article concerns the passing-on of overcharges in competition law (it represents an important issue of so called "private enforcement"). The passing-on consists in an increase by the customer of the infringer of competition law of the prices of goods (offered by the former) caused by the increase in the prices of the goods that the contractor purchased from the infringer. The reference to this defence by such infringer means that, in his opinion, the plaintiff (i.e. usually his customer) - as a result of passing on - did not suffer any damage or the damage claimed should be reduced. This article proposes a thesis according to which the use of such defence - for systemic (functional) reasons - should either not be allowed or should be allowed (as part of its evaluation by courts) in exceptional cases. This institution also raises constructive and conceptual reservations. The study presents numerous arguments justifying the validity of the above thesis. Critical analysis of the passing-on defence was not the subject of (or even more so) in-depth research (especially in Polish literature). This is important, because the EU legislator in Directive 2014/104/EU allowed the use of such a defence.