Competition Act 1998

[F1 Part 2 U.K. Passing On

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)

Overcharges and underpayments U.K.

8. For the purposes of this Part of this Schedule—

(a) there is an overcharge as a result of an infringement of competition law if, when a product or service is acquired directly from the infringer, the price actually paid exceeds the price that would have been paid in the absence of the infringement, and

(b) there is an underpayment as a result of an infringement of competition law if, when a product or service is provided directly to the infringer, the price actually paid is less than the amount that would have been paid in the absence of the infringement.

Burden of proof where an overcharge is passed on to an indirect purchaser U.K.

9. (1) Sub-paragraph (2) applies where—

(a) there is an overcharge as a result of an infringement of competition law, and

(b) a competition claim is made in respect of loss or damage which—

(i) arises, directly or indirectly, from the overcharge, and

(ii) was suffered by a person who acquired a product or service indirectly from the infringer (“the injured person”).

(2) The claimant is to be treated as having proved that the overcharge was passed on to the claimant if the claimant proves that—

(a) the defendant infringed competition law,

(b) as a result of the infringement, there was an overcharge when a person acquired a product or service directly from the defendant, and

(c) the claimant subsequently acquired—

(i) the product or service mentioned in paragraph (b), or

(ii) a product or service derived from or containing the product or service mentioned in paragraph (b).

(3) Sub-paragraph (2) does not apply if the defendant proves that the overcharge, or part of it, was not passed on to the claimant.

(4) Where the claimant is not the injured person, the following are to be read as references to the injured person—

(a) the second reference to the claimant in the opening words of sub-paragraph (2), and

(b) the references to the claimant in sub-paragraphs (2)(c) and (3).

(5) 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.

Burden of proof where an underpayment is passed on to an indirect provider U.K.

10. (1) Sub-paragraph (2) applies where—

(a) there is an underpayment as a result of an infringement of competition law, and

(b) a competition claim is made in respect of loss or damage which—

(i) arises, directly or indirectly, from the underpayment, and

(ii) was suffered by a person who provided a product or service indirectly to the infringer (“the injured person”).

(2) The claimant is to be treated as having proved that the underpayment was passed on to the claimant if the claimant proves that—

(a) the defendant infringed competition law,

(b) as a result of the infringement, there was an underpayment when a person provided a product or service directly to the defendant, and

(c) the product or service mentioned in paragraph (b)—

(i) was provided to the person by the claimant, or

(ii) contained or was derived from a product or service provided by the claimant.

(3) Sub-paragraph (2) does not apply if the defendant proves that the underpayment, or part of it, was not passed on to the claimant.

(4) Where the claimant is not the injured person, the following are to be read as references to the injured person—

(a) the second reference to the claimant in the opening words of sub-paragraph (2), and

(b) the references to the claimant in sub-paragraphs (2)(c) and (3).

(5) 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.

Burden of proof where an overcharge or underpayment is passed on by the claimant U.K.

11. (1) This paragraph applies where—

(a) there is an overcharge or underpayment as a result of an infringement of competition law,

(b) a person makes a competition claim in respect of loss or damage which arises, directly or indirectly, from the overcharge or underpayment, and

(c) in its defence, the defendant claims that the claimant passed on all or part of the overcharge or underpayment to another person.

(2) The defendant has the burden of proving—

(a) that the claimant passed on the overcharge or underpayment, and

(b) the extent to which the claimant did so.

(3) Where the competition claim is made by someone other than the person who suffered the loss or damage (“the injured person”), the references in sub-paragraphs (1)(c) and (2) to the claimant are to be read as references to the injured person.]