Paragraph 10 Burden of proof where an underpayment is passed on to an indirect providerF1
Sub-paragraph (2) applies where there is an underpayment as a result of an infringement of competition law and—
a competition claim within paragraph 2(2)(a) is made in respect of loss or damage which—
arises, directly or indirectly, from the underpayment, and
was suffered by a person who provided a product or service indirectly to the infringer (“the injured person”), or
a competition claim within paragraph 2(2)(b) is made in respect of the underpayment.
The claimant is to be treated as having proved that the underpayment was passed on to the claimant if the claimant proves that—
the defendant infringed competition law,
as a result of the infringement, there was an underpayment when a person provided a product or service directly to the defendant, and
the product or service mentioned in paragraph (b)—
was provided to the person by the claimant, or
contained or was derived from a product or service provided by the claimant.
Sub-paragraph (2) does not apply if the defendant proves that the underpayment, or part of it, was not passed on to the claimant.
Where the claimant is not the injured person, the following are to be read as references to the injured person—
the second reference to the claimant in the opening words of sub-paragraph (2), and
the references to the claimant in sub-paragraphs (2)(c) and (3).
Where the defendant is not the infringer, the references in sub-paragraph (2)(a) and (b) to the defendant are to be read as references to the infringer.
Annotations
Textual amendments
- F1
Sch. 8A inserted (9.3.2017) by The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (S.I. 2017/385), reg. 1(2), Sch. 1 para. 4 (with Sch. 1 para. 5)
- F2
Sch. 8A para. 10(1) substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 3 para. 8(5); S.I. 2024/1226, regs. 1(2), 2(1)(9) (with Sch. para. 4, 20)
Notes on the whole Act
Textual amendments
- F1
Words in long title substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), Sch. 1 para. 1
Notes on Schedule 8A
Textual amendments
- F2
Words in Sch. 8A heading inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 3 para. 8(2); S.I. 2024/1226, regs. 1(2), 2(1)(9) (with Sch. para. 4, 20)