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转嫁抗辩与间接购买者的诉讼地位问题,是欧盟反托拉斯损害赔偿诉讼统一协调立法中无法回避的问题。该文对欧盟主要成员国处理该问题的现行立法及实践进行了比较。欧洲法院在判例中确认了遭受反托拉斯损害的“任何人”提起损害赔偿诉讼的权利,但将转嫁抗辩问题留给了各成员国自行解决。在白皮书中,欧盟委员会针对间接购买者的诉讼地位以及转嫁抗辩问题,提出了具体建议措施。这些措施立足于欧盟法律文化及传统,从政治层面尊重了各成员国的传统民事法律秩序,但也同时存在一定的技术性缺陷。
The transfer of defense and indirect buyer’s litigation status is an unavoidable issue in the harmonized EU legislation on antitrust damages. The article compares the current legislation and practice of the major EU member states in addressing this issue. The European Court of Justice confirmed in its jurisprudence that “anyone” suffering from antitrust rights has the right to bring damages proceedings, but the question of passing the defenses was left to the Member States themselves. In the white paper, the European Commission made specific recommendations on the status of indirect buyers and the passing of defenses. These measures are based on the legal cultures and traditions of the European Union and respect the traditional civil legal order of all member states politically. However, there are also certain technical flaws.