EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
Member states must also recognise the passing- on defence in actions for damages. For exam - ple, if price increases caused by a cartel have been “passed on” along the distribution chain, the compensation payable by an infringer to its direct customers may be reduced by the amount passed on. A cartelist bears the burden of prov - ing that a claimant passed on the overcharge. By contrast, a claimant who is an indirect purchaser enjoys a rebuttable presumption that indirect customers suffered as a result of a price increase caused by a cartel. The share of the overcharge that was passed on is to be estimated by the relevant national court. The Damages Directive prohibits the disclosure of leniency statements and settlement submis - sions by the European Commission or a national competition authority at any time. Where the Commission or a national competition authority has adopted a cartel decision, a national court may order the disclosure of: • information that was prepared by a natural or legal person specifically for the proceedings of a competition authority; • information that the competition authority has drawn up and sent to the parties in the course of its proceedings; and • settlement submissions that have been with- drawn. 6.4 Evidence Obtained From Governmental Investigations/ Proceedings Claimants may also seek to obtain other infor- mation from government investigations or proceedings by relying on the general right of access to the documents of the EU institutions under Article 15 of the TFEU and Regulation 1049/2001 (OJ 2001 L 145/43). However, the Commission may refuse access to a document
where disclosure would undermine the protec - tion of commercial interests of natural or legal persons, court proceedings and legal advice, or the purpose of inspections, investigations and audits, provided that there is not an overriding public interest in favour of disclosure. Although there are some instances where pri - vate claimants have gained access to cartel evi - dence, the Commission generally rejects appli - cations for access to evidence by relying on the exception for the protection of the commercial interests of third parties or on the exception for the protection of the purpose of investigations. 6.5 Frequency of Completion of Litigation Private actions for damages are litigated under national law. As a result, the frequency of com - pletion of follow-on litigation arising from a cartel decision of the European Commission depends on various factors at national level. 6.6 Attorneys’ Fees Private actions for damages are largely governed by national law. Compensation for the attorneys of successful claimants is governed by applica - ble professional rules at national level. 6.7 Costs/Fees Private actions for damages are largely gov - erned by national law. As a result, the degree to which claimants are obliged to cover defence costs and other fees associated with an unsuc - cessful claim are governed by applicable costs rules at national level. 6.8 Judicial Review or Appeal Private actions for damages are litigated under national law. As a result, the forms and stand - ards applied in appeals arising from private
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