Luca Prete

Since antiquity, the fundamental principle regarding the burden of proof is that it is for the person alleging a claim to prove the facts on which that claim is based, and not for the party that opposes it to disprove it. Consistent with that principle – as well as with the principle of the presumption of innocence – in most jurisdictions it is for the competition authority (or, in case of private enforcement, for the private claimant) to prove the anticompetitive nature of a given conduct. However, it may be interesting to note that, in a number of jurisdictions, the appropriateness of the ‘traditional’ rules and principles on the burden of proof in certain situations has recently been discussed, not only in academic fora, but also at the level of policy-makers. In some of those jurisdictions, in fact, legislation has been proposed or enacted with a view to reverse the burden of proof in certain circumstances. In those cases, it will be for the company concerned to prove that its conduct is not anti-competitive, rather than for the enforcer to prove the infringement of the relevant competition rule(s). This contribution will provide readers with an overview of some of the most interesting recent developments in this field – primarily, those which took place after the publication of the last Foreword to e-Competitions Special Issue on Burden of proof in competition law – and direct them to the writings in which each subject was treated in more detail.

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