The Supreme Court declares that members of cartels may invoke the passing-on defense, but carry the burden of proof. This case illustrates the difficulty of proving the full passing-on of damages.
As defence against an action for damages brought by confectionery manufacturers, Ebro Foods argued that the latter had passed-on the price increase of sugar to their clients by increasing the price of the final product, which enabled them to recover the loss suffered as a result of the price increase of the raw material. The Supreme Court stated that such defence is admissible, although the burden of proving that the damage suffered has been entirely passed-on to the final client falls on Ebro Foods.
The Supreme Court stated that confectionery manufacturers despite the passing-on could still have been harmed by a reduction in sales and market share due to the price increase of the final products, which would have made them less competitive and prevented them from effectively recovering the damages suffered as a result of the increased price of sugar, even if they had increased the final sale price.