Table of Contents
Acknowledgements v
Table of Cases xi
Table of Legislation xxvii
1 Introduction 1
I Evidence Matters in the Spotlight 1
II A Simple Question, an Unclear Answer: What Standards Govern the Evaluation of Evidence? 4
III Purpose, Approach and Scope 5
A The Purpose and Approach in this Book 5
B The Scope of the Book 7
IV Structure 9
2 Evidence Standards in EU Competition Enforcement: Autonomous, But Not Independent 12
I Introduction 12
II A Primer on Evidence Law and Theory 12
III Evidence Standards and EU Competition Enforcement 16
A The Contextual Dependency of Evidence Standards 16
B The Specific Features of EU Competition Enforcement 17
IV Conclusion 31
3 The Burden of Proof in EU Competition Enforcement 32
I Introduction 32
II The Concept of the Burden of Proof and its Significance 32
III The Burden of Proof in Antitrust Cases 34
A The Burden of Proof in Article 101 TFEU Cases 34
B The Burden of Proof in Article 102 TFEU Cases 39
C Taking a Closer Look at the Allocation of the Legal Burden in Antitrust Cases 43
IV The Burden of Proof in Merger Cases 60
A The EUMR and the Horizontal and Non-Horizontal Merger Guidelines 61
B The EU Courts' Jurisprudence 63
C Taking a Closer Look at the Allocation of the Legal Burden in Merger Cases 64
V Conclusion 69
4 The Standard of Proof in EU Competition Enforcement 72
I Introduction 72
II The Concept of the Standard of Proof and its Significance 72
III The Main Reasons for the Ambivalence Over the Applicable Standard of Proof 74
A The Legislative Silence and the Vagueness of the 'Requisite Legal Standard' 75
B The 'Probabilities v Inner Conviction' Dilemma 76
C The Tendency to Connate the Standard of Proof with Substantive Legal Tests 78
IV The Regulation of the Standard of Proof in Antitrust and Merger Cases 81
A The Standard of Proof in Articles 101 and 102 TFEU Cases 81
B The Standard of Proof in Merger Cases 89
V The Discharge of the Standard of Proof in EU Competition Enforcement 95
VI Conclusion 99
5 Principles and Problems of Evidence Admissibility and Evaluation 102
1 Introduction 102
II Principles Governing Evidence Admissibility and Evaluation in EU Competition Enforcement 102
A The Principle of Unfettered Production of Evidence: The Relevance Test 102
B The Principle of Unfettered Evaluation of Evidence: The Reliability Test 104
III Potential Shortcomings in the EU Courts' Approach to Evidence Admissibility 106
A Rules of Evidence Inadmissibility 106
B The Right to Cross-Examine and Call Witnesses in Antitrust Cases 111
C Admissibility of Economic Evidence 116
IV Potential Shortcomings in the EU Courts' Approach to Evidence Evaluation 121
A The Probative Value of Documentary Evidence 122
B The Probative Value of Statements 123
C The Probative Value of Opinion Evidence 130
D The Probative Value of Economic Evidence 133
E A de Facto 'Hierarchy' of Evidence 137
V Conclusion 139
6 Presumptions in EU Competition Enforcement 142
I Introduction 142
II The Concept and Significance of Presumptions 142
III Distinguishing Presumptions from Similar Devices in EU Competition Enforcement 145
IV The Main Presumptions in EU Competition Enforcement 149
A No Presumption of Concertation Based on Evidence of Parallel Behaviour 150
B The Presumptions of Participation in a Collusive Arrangement 152
C The Presumption of Continuity 156
D The Presumption of Actual Exercise of Decisive Influence Over the Conduct of a Wholly Owned Subsidiary 161
E The Presumption of Capability of Practices Which Lack Plausible Redeeming Virtues to Restrict Competition 166
V The Implications of the Presumptions Used in EU Competition Enforcement 168
VI Conclusion 172
7 Evidence Standards and Standards of Judicial Review 173
I Introduction 173
II Standards of Judicial Review and Fairness Concerns 173
A Full and Marginal Review 173
B The Fairness Concerns against Marginal Review 175
III The Interplay between Evidence Standards and Standards of Judicial Review 180
A Evidence-Related Pleas before the EU Courts 180
B Evidence Standards, Marginal Review and Complex Economic Evaluations 183
IV Conclusion 194
8 Reflections 196
I Introduction 196
II Some Connotations for the Enforcement System's Risk Proclivity 197
III The Implications for Fairness 198
A The Fairness of the Applicable Evidence Standards 198
B Evidence Standards as a Remedy for the 'Fairness Deficit' of the Administrative Model of Enforcement 202
IV The Connotations for the Application of the Substantive Rules 203
A Evidence Standards and the 'More Economic' Approach 203
B The Symbiosis of Evidence Standards and Substantive Rules 204
V The Connotations for the EU Institutions 208
A The Connotations for the Commission 208
B The Connotations for the EU Courts 211
VI The Implications for National Procedural Autonomy 213
A The Operation of Divergent Evidence Standards at the National Level 213
B The Capacity of the EU Evidence Standards to Pave the Way for Further Procedural Convergence 215
VII Conclusion 219
Bibliography 221
Index 237
