Newsletter-21

126 NEWSLETTER 2016 EU Law Before the entry into force of the Directive numbered 2014/104/ EU on Certain Rules Governing Actions for Damages Under National Law for Infringements of the Competition Law Provisions of the Member States and of the European Union (“Directive”), the European Court of Justice (“ECJ”) ruled in Courage 3 and Manfredi 4 that anyone who suffered damages arising from competition law infringements may claim damages. This was interpreted as ECJ’s acceptance of the indirect purchaser rule along with the passing-on defense 5 . However, in both of these rulings, the ECJ left the authority to national authori- ties 6 to lay out the rules with regard to compensation claims. After the entry into force of the Directive, the passing-on defense that is rejected in the United States of America through the Hannover Shoe 7 decision, has become uniformly regulated in the EU. The regulation of the passing-on defense under EU lawwas briefly explained in my Newsletter of November, 2014 8 . In accordance with Art. 17(2) of the directive, it is presumed that the cartels are harmful. In this case, the burden of proof lies with the defendant, rather than the claimant, who must prove that no damage has arisen with regard to the claimant. Moreover, Art. 13 stipulates that the passing-on defense may be brought forward. Accordingly, the defendant may argue that the claimant, the direct purchaser, has passed its damages in whole or in part, on to its customers. Again, the burden of proof lies with the defendant who may reasonably request disclosure from the claimant or from third parties. 3 C-453/99 Courage Ltd. v Bernard Crehan, ECR [2001] I-6927 4 C-295/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA, ECR [2006] I-06619 5 Kadir Baş , Türk Hukukunda Rekabet İhlallerine İlişkin Tazminat Davalarında Passing-On Savunması ve Dolaylı Alıcı Kuralının Uygulanması: ABD ve AB Uygulamaları Işığında Değerlendirme ve Öneriler, Competition Journal, Volume 12, No: 4, October, 2011, p. 34. 6 Baş , p. 35. 7 Hannover Shoe, v. United Shoe Machinery Corp., 392 U.S. 481, (1968). 8 For the full text please see: http://www.erdem-erdem.av.tr/publications/law-post/ the-implications-of-the-directive-on-certain-rules-governing-antitrust-damages- lawsuits-on-turkish-law/ (date of access: 27.12.2016).