(1) Where a good or service is purchased at an excessive price (overcharge), the fact that this good or service was resold shall not rule out the occurrence of harm. The harm incurred by the purchaser shall be deemed to be remedied to the extent that the purchaser has passed on the overcharge resulting from an infringement of Section 33(1) to its customers (indirect purchasers). The injured party's right to claim compensation for lost profits under Section 252 of the German Civil Code shall remain unaffected to the extent that such loss of profit is the result of the passing-on of the overcharge.
(2) It shall be presumed in the indirect purchaser's favour that the overcharge has been passed on to it if
1. the infringer has violated Section 1 or Section 19 of this Act or Article 101 or Article 102 of the Treaty on the Functioning of the European Union,
2. the infringement has resulted in an overcharge for the direct purchaser of the infringer, and
3. the indirect purchaser has purchased goods or services that
a) were the object of the infringement,
b) were derived from goods or services that were the object of the infringement, or
c) contained goods or services that were the object of the infringement.
(3) The presumption under subsection (2) shall not apply where it is credibly demonstrated that the overcharge was not, or not entirely, passed on to the indirect purchaser. With regard to indirect purchasers, Section 33a (2) sentence 4 shall apply mutatis mutandis to the goods or services specified under subsection (2) sentence 1 no 3.
(4) Subsections (1) to (3) shall apply mutatis mutandis to cases where the infringement of Section 1 or Section 19 of this Act or Article 101 or Article 102 of the Treaty on the Functioning of the European Union concerns supplies to the infringer.
(5) In quantifying the extent to which the overcharge has been passed on, Section 287 of the German Code of Civil Procedure shall apply mutatis mutandis.