Passing on extra costs to customers: an effective
defence in actions seeking damages for anti-competitive
practices
At the high point of the discussions about the European project
to harmonize the rules of antitrust class actions, a May 15, 2012
judgment of the French Supreme Court has just ruled on one of the
most controversial aspects of private litigation in the area of
cartel infringements: can an undertaking which was the victim of a
cartel involving an increase in its suppliers' prices obtain
compensation for these extra costs without having to prove that it
did not itself pass them on to its own customers?
In this case, several undertakings, one of which was Ajinomoto,
were sanctioned by the European Commission in 2000 for
participating in agreements on lysine prices and sales volumes in
Europe. Two French cooperatives which had bought lysine during the
period of the practices summoned their direct supplier of lysine,
which had bought from Ajinomoto, and
