Something of a burden: Is the passing-on defence appropriate?

The European Commission believes that its encouragement of private enforcement will help ensure that consumers who have suffered due to an infringement of the competition rules obtain full compensation for their losses. Before this result can be achieved, numerous complex legal issues need to be resolved. One such issue concerns the defences that an infringer may raise in a private damages action. This article considers this issue and evaluates whether the approach of the Commission to the passing-on defence is appropriate in this context. In doing do, it develops a framework according to which appropriateness is determined, before applying that framework to the passing-on defence.