on whether, or to what degree, an overcharge was passed on to the claimant, taking into account the commercial practice that price increases are passed on down the supply chain, the burden of proving the existence and scope of such a passing-on shall rest with the claimant, who may reasonably require disclosure from the defendant or from third parties.
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(2)In the situation referred to in sub-regulation (1), the indirect purchaser shall be deemed to have proven that a passing-on to that indirect purchaser occurred where that indirect purchaser has shown that: (a) the defendant has committed an infringement of competition law; (b) the infringement of competition law has resulted in an overcharge for the direct purchaser of the defendant; and (c) the indirect purchaser has purchased the goods or services that were the object of the infringement of competition law, or has purchased goods or services derived from or containing them.
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Actions for damages by claimants from different levels in the supply chain.
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(3)The provisions of sub-regulation (2) shall not apply where the defendant can demonstrate credibly to the satisfaction of the court that the overcharge was not, or was not entirely, passed on to the indirect purchaser.
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15.(1) With a view to avoiding that actions for damages by claimants from different levels in the supply chain lead to a multiple liability or to an absence of liability of the infringer, in assessing whether the burden of proof resulting from the application of regulations 13 and 14 is satisfied, the court may take due account of any of the following: (a) actions for damages that are related to the same infringement of competition law, but that are brought by claimants from other levels in the supply chain; (b) judgements resulting from actions for damages as referred to in paragraph (a); (c) relevant information in the public domain resulting from the public enforcement of competition law.
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Quantification of harm.
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(2)This regulation shall be without prejudice to the rights and obligations of the court pursuant to Article 30 of Regulation (EU) No. 1215/2012.
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16.(1) The burden of proving claims regarding the extent of the harm suffered shall rest on the claimant:
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COMPETITION Provided that where it is established that the claimant suffered harm, but it is impossible or excessively difficult to quantify precisely the harm suffered on the basis of the evidence available, the court may estimate the amount of harm including, in particular, on the basis of arbitrio boni viri.
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(2)It shall in any case be presumed that cartel infringements cause harm:
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Provided that the infringer shall have the right to bring forward evidence to rebut that presumption.
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(3)A competition authority may, at the request of a court seized of an action for damages pursuant to these regulations, assist that court with respect to the determination of the quantum of damages where the competition authority considers such assistance to be appropriate.
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(4)In establishing the quantum of damages the court shall take into account the factual scenario that would have prevailed had the infringement not taken place.
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17.(1) The prescriptive period referred to in regulation 10 shall be suspended for the duration of any consensual dispute resolution process, exclusively with regard to those parties that are or that were involved or represented in the consensual dispute resolution.
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(2)Without prejudice to the provisions of the Arbitration Act, the court seized of an action for damages pursuant to these regulations may, as it deems fit in the circumstances, suspend its proceedings for a period of no longer than two years where the parties thereto are involved in consensual dispute resolution concerning the claim covered by that action for damages.
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(3)The national competition authority may consider compensation paid as a result of a consensual settlement, and prior to its decision imposing a penalty, to be a mitigating factor.
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18.(1) Following a consensual settlement, the claim of the settling injured party shall be reduced by the settling co-infringer’s share of the harm that the infringement inflicted upon the injured party.
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(2)Any remaining claim of the settling injured party shall be exercised only against non-settling co-infringers, who shall not be permitted to recover contribution for the remaining claim from the settling co-infringer:
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Provided, however, that where the non-settling coinfringers cannot pay the damages that correspond to the remaining claim of the settling injured party, the settling injured party may exercise the remaining claim against the settling co-infringer, unless such an option has been expressly excluded under the terms of the consensual settlement.
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(3)When determining the amount of contribution that a coinfringer may recover from any other co-infringer in accordance with their relative responsibility for the harm caused by the infringement of competition law, the court shall take due account of any damages paid pursuant to a prior consensual settlement involving the relevant co-infringer.
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Suspensive and other effects of consensual dispute resolution.
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Effect of consensual settlements on subsequent actions for damages.