of the European Union, Council

Burden of proof

Institution Definition

In any national or Community proceedings for the application of Articles 101 and 102 of the Treaty, the burden of proving an infringement of Article 101(1) or of Article 102 of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 101(3) of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled. © Article 2 of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

Articles

Georges Siotis Defining relevant markets in the pharmaceutical industry

May 2022

Neven and Siotis (2020) analyse the foreclosure of generic by incumbents in the pharmaceutical industry. They argue that, in principle, there is no impediment involved in conditioning market definition and the analysis of dominance and abuse thereof on the nature of the infringement under scrutiny. First, they note that market delineation aims to identify the transactions affected by anticompetitive behaviour. In the case of foreclosure, the transactions are those that would take place if entry were not blocked. Second, the first mover advantage conferred by incumbency is a source of "economic strength" that allows the firm to "behave to an appreciable extent independently of its competitors". Third, foreclosure amounts to altering the market structure that would prevail absent the abuse, thus hindering the growth of competition. Finally, they note that, in the context of generic foreclosure, carrying out the competitive analysis contingent on the nature of the infringement establishes a meaningful link between dominance and its abuse.

Thibault Sire The uneven playing field: How to deal with foreign subsidies when assessing mergers?

February 2022

It is sometimes argued that the European Commission should take into greater consideration foreign subsidies when assessing mergers under the EU Merger Regulation. However, the Commission’s decision-making practice confirms that foreign subsidies may be relevant for the assessment of mergers but (...)

American Bar Association Antitrust Evidence Handbook (ed.3), American Bar Association

September 2016

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Thomas Thiede Austria/Germany: Recent developments in private enforcement

November 2021

In the following select points from the Austrian and German legal systems will be presented with relevant case law. In particular, the report will identify and discuss a number of hotly debated topics and the most recent developments, including defendants’ “group liability,” collective redress, (...)

Lars Henriksson Sweden: Current developments and trends in Swedish competition law

November 2021

Dating back almost 30 years, the Swedish legislator has endeavoured to closely align national substantive rules on competition with its EU counterparts. That aim remains and largely this is reflected throughout the national competition authority’s decisional practice and the courts’ case law. In (...)

Andriani Kalintiri Has the standard of proof been raised in modern EU competition enforcement?

November 2021

This article explores the question of whether the standard of proof has been raised in modern EU competition enforcement. The general impression that it has become more difficult for the Commission to prove a violation of Articles 101 and 102 TFEU or a “significant impediment to effective (...)

Aistė Mickonytė Presumption of Innocence in EU Anti-Cartel Enforcement, Aistė MICKONYTĖ

February 2019

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Frédéric Jenny Competition law enforcement and regulation for digital ecosystems: Understanding the issues, facing the challenges and moving forward

September 2021

Competition authorities are under severe political pressure to intervene quickly against the digital behemoth for a variety of reasons. Various expert reports have suggested that traditional antitrust or competition law enforcement and merger control are inadequate or insufficient to deal with (...)

Bruno Lasserre ’Policeman’ or arbitrator?

September 2021

The opinions, sector enquiries, recommendations and practical guides published by the Competition Authority are increasingly used to guide behaviour and promote a competition culture. Together with enforcement, this advocacy activity is now essential to the effective defence of economic public (...)

Siniša Petrović, Marijana Liszt, Petra Kontić Croatia: Topical issues in the current competition law

November 2020

This paper discusses current developments in competition law in Croatia by reviewing some of the most relevant issues in these unprecedented times. One of them concerns the recent decisions of the Croatian Constitutional Court by which several judgments of the Administrative Court were quashed. (...)

Anthony M. Collins No need to bang on the table

November 2020

Two recent judgments delivered by the General Court of the EU show that where applicants challenge the facts underlying a Commission decision in the field of competition law, the Commission is required to prove those facts on pain of the annulment of that decision. In that context the General (...)

Soumya Hariharan, Nandita Sahai, Sakshi Agarwal, Akrathi Shetty India: Trends and evolution in bid-rigging cartels

May 2020

Cartels have been at the forefront of the Competition Commission of India’s (CCI) enforcement regime. This article assesses the elements of bid rigging cartels, constituents that create a case for bid rigging, the CCI’s approach in India based on the standard of proof adopted and evidentiary (...)

Georges Decocq Economics and Competition Policy, Emmanuel COMBE

May 2020

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Elsa Haïm Économie et politique de la concurrence, Emmanuel COMBE

May 2020

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Catherine Prieto Richard Whish QC (Hon) Liber Amicorum: Taking competition law outside the box, Nicolas CHARBIT and Sonia AHMAD (dir.), foreword by Wouter WILS

May 2020

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Events

Luca Prete, Xavier Boutin, Estelle Jegou Anticompetitive object and effect: Does the recent EU case law bring clarity or fresh doubts?

20 November 2020

Webinar of the "Law & Economics" Series organised by Concurrences, in partnership with Positive Competition and White & Case, with Luca Prete (Référendaire, European Court of Justice), Xavier Boutin (Founding Partner, Positive Competition) and Estelle Jégou (Counsel, White & Case).

Tom Smith, Frederic Depoortere, Guillaume Loriot, Lorenzo Coppi, Giorgio Motta The future of EU and UK merger control enforcement

17 September 2020

Webinar of the "Law & Economics" Series organised by Concurrences, in partnership with Compass Lexecon and Skadden, with Guillaume Loriot (Director - Markets and cases II: Information, Communication and Media, DG COMP), Tom Smith (Legal Director, Competition and Markets Authority), Lorenzo Coppi (Executive Vice President, Compass Lexecon), Frederic Depoortere (Partner, Skadden), and Giorgio Motta (Partner, Skadden).

Hanna Anttilainen, Peter Davis, Catriona Hatton, Stephen Weissman, Adam Shulman Global Antitrust Hot Topics #1 Mergers: A Definitive Need for Reform?

23 September 2020

1st Webinar of the « 8th Global Antitrust Hot Topics Conference » organised by Concurrences, in partnership with Baker Botts and Cornerstone Research, with Hanna Anttilainen (Head of Unit - Mergers, DG COMP), Peter Davis (Senior Vice President, Cornerstone Research), Catriona Hatton (Partner, Baker Botts), Adam Shulman (Deputy General Counsel, Celanese) and Stephen Weissman (Partner, Baker Botts).

Mark D. Powell, Nicholas Forwood, Katarzyna Czapracka, Thilo Klein The General Court’s CK Telecoms ruling: Is Three the New Magic Number? Towards a re-assessment of unilateral effects in merger review

1 July 2020

Webinar of the "Law & Economics" Series organised by Concurrences, in partnership with White & Case and Compass Lexecon, with Sir Nicholas Forwood QC (Counsel, White & Case - Former Judge, Court of Justice of the European Union, General Court), Katarzyna Czapracka (Partner, White & Case), Thilo Klein (Executive Vice President, Compass Lexecon) and Mark Powell (Partner, White & Case).

Dominique Gilles, Gildas de Muizon, Nathalie Dostert, Mélanie Thill-Tayara, Anne-Sophie Choné-Grimaldi Private Enforcement #3 Assessment of damages, passing on…

19 June 2020

3rd Webinar of the « 5th Private Enforcement Conference » organised by Concurrences, in partnership with Dechert and Deloitte, with Anne-Sophie Choné (Professor, University Paris Nanterre), Dominique Gilles (Counsellor, Paris Court of Appeal), Gildas de Muizon (Partner, Head of the Economic Advisory practice, Deloitte), Nathalie Dostert (Vice President, Paris Commercial Court) and Mélanie Thill-Tayara (Partner, Dechert).

Peter Meier-Beck, Ellen Braun, Kai-Uwe Kühn, Lukas Rengier Private Enforcement in German Courts: Between Law and Economics

5 September 2019

Law & Economics workshop organised by Concurrences with Prof. Dr. Peter Meier-Beck (German Federal Court of Justice), in partnership with Allen & Overy and The Brattle Group.

Bill Batchelor, Bruce Macaulay, Deborah Wilkie, Jon Turner, Oliver Latham The future of cartels: Classes, claims and criminals

28 November 2018

Workshop organised by Concurrences Review with Deborah Wilkie (CMA), in partnership with Skadden and CRA.

Marc Israel, Oliver Latham, Peter Freeman, Sylvia Evers Litigating Private Enforcement in the UK and the Netherlands

22 January 2018

Law & Economics workshop organised by Concurrences Review in partnership with White & Case and CRA.

Craig Pouncey, Filip Kubik, Kim Dietzel, Laurent Eymard, Michael Dietrich, Peter Roth Strategic considerations in cartel follow-on litigation

2 June 2016

Law & Economics Workshop organized by Concurrences Review in partnership with Herbert Smith Freehills and MAPP.

Emmanuel Combe, Koen Platteau, Ombline Ancelin, Philippe Février Competition in the Pharmaceutical Sector — What’s new?

14 April 2016

Law & Economics Workshop organized by Concurrences Review in partnership with Simmons & Simmons and MAPP.

Jérémiah Juts, Koen Platteau, Laure Dosogne Varaire, Ombline Ancelin Exchange of information between competitors within professional associations

27 January 2016

Law & Economics Workshop with Laure Dosogne-Varaire (Autorité de la concurrence), in partnership with Simmons & Simmons and Compass Lexecon.

Laurent Ayache, Laurent Benzoni, Lionel Lesur, Nathalie Dostert Private enforcement: Damage assessment

8 June 2015

Law & Economics Workshop organized by Concurrences in partnership with McDermott Will & Emery and Tera Consultants.

Christian Riis-Madsen, David Spector, Frédéric Jenny, Nicholas Banasevic Proof of abuse of dominant position

3 June 2015

Workshop organized by Concurrences Review in partnership with O’Melveny & Myers and MAPP.

Béatrice Charlier-Bonatti, Bernd Pill, Charlotte Tasso de Panafieu, Frank Gentin, Frédéric Jenny, Gildas de Muizon, Guy Canivet, Laurence Idot, Laurent Geelhand, Ludovic Bernardeau, Nick Rowles-Davies, Olivier Fréget, Pascale Déchamps 1st Private Enforcement Conference - EU Damages directive: What consequences for litigation?

18 May 2015

Half-day conference organized by Concurrences at Paris Commercial Court in partnership with Burford Capital, Fréget-Tasso de Panafieu, Hausfeld, Microeconomix and Oxera.

Christian Riis-Madsen, David Spector, Frédéric Jenny, Nicholas Banasevic Proof of abuse of dominant position

13 May 2015

Nicholas Banasevic
Christian Riis-Madsen
David Spector
Frédéric Jenny...

Books

Nicolas Charbit, Sonia Ahmad Richard Whish QC (Hon) Liber Amicorum

11 March 2020

This Liber Amicorum highlights the global reach of Professor Whish’s influence. Enforcers, academics and practitioners from around the world pay tribute to the mastery of competition law that Professor Whish embodies, and has shared with students with trademark erudition and enthusiasm. At this (...)

Chapters

Eleanor M. Fox Liber Amicorum - Antitrust Ambassador to the World The American Antitrust Counter-Revolutionaries: A European Perspective

27 Oct 2021

103 The American Antitrust Counter-Revolutionaries: A European Perspective Gior Gio M onti * Tilburg Law and Economics Center Abstract Professor Fox's work of the 1980s set the framework for debating the shape of antitrust law. She was prescient in noting the practical and political salience of (...)

John M. Newman Herbert Hovenkamp Liber Amicorum - The Dean of American Antitrust Law Reactionary Antitrust

7 Jul 2021

73 Reactionary Antitrust John m. n ewman * University of Miami School of Law Abstract The antitrust enterprise is undergoing a renaissance. New voices have emerged. Issues long considered settled have been opened for reexamination. Lively debate has prompted antitrust stakeholders to reevaluate (...)

Thomas A. Lambert Herbert Hovenkamp Liber Amicorum - The Dean of American Antitrust Law PART II - ANTITRUST REFORM: OVERDUE OR UNWARRANTED?
The House that Hovenkamp Built Is Sound: The Case Against Proposed Legislative Reforms of the US Antitrust Laws

7 Jul 2021

PART II Antitrust Reform: Overdue or Unwarranted? 45 The House that Hovenkamp Built is Sound: The Case Against Proposed Legislative Reforms of the US Antitrust Laws Thomas a. l amBer T * University of Missouri School of Law Abstract Perhaps no living person has had greater influence on US antitrust (...)

Carter Chim Richard Whish QC (Hon) Liber Amicorum The Standard and Burden of Proof, and the Delineation of the Object Box

11 Mar 2020

75 The Standard and Burden of Proof, and the Delineation of the Object Box carter chi M* The University of Hong Kong Abstract Despite the CJEU's clarification in Cartes Bancaires, 1 the delineation of the “object box” is still far from being clear. This paper suggests that the problem lies in the (...)

Georgios Gryllos 2020 Competition Case Law Digest - A Synthesis of EU, US and National Leading Cases Burden of Proof and Competition Law

31 Jan 2020

213 Burden of Proof and Competition Law: An Overview of the Case Law in Major Jurisdictions g eorgios g ryllos * General Court of the European Union (Luxembourg) I. Introduction Rule of reason, passing-on defence, per se infringements, extraterritoriality, illegally obtained evidence, (...)

Joshua D. Wright Douglas H. Ginsburg Liber Amicorum : An Antitrust Professor on the Bench Douglas H. Ginsburg: Antitrust’s Economic Ambassador

1 Mar 2018

81 Douglas H. Ginsburg | An Antitrust Professor on the BenchLiber Amicorum - Volume I Douglas H. Ginsburg: Antitrust’s Economic Ambassador Joshua d. Wright * George Mason University Antonin Scalia Law School Abstract Judge Douglas H. Ginsburg has been instrumental to the integration of economics (...)

Jean-François Bellis Ian Forrester - A Scot Without Borders Liber Amicorum Vol. II Use and abuse of the ’single and continuous infrigement’ concept in EU cartel cases: the implications for follow-on private actions for damages

1 Dec 2015

99 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume II Use and abuse of the ‘single and continuous infringement’ concept in EU cartel cases: the implications for follow-on private actions for damages JEAN -F RANÇOIS B ELLIS A concept commonly used in EU cartel cases is that of (...)

Pablo Trevisán Ian Forrester - A Scot Without Borders Liber Amicorum Vol. II Compensation for damages as a result of antitrust violations: European Union and Argentina

1 Dec 2015

337 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume II Compensation for damages as a result of antitrust violations : European Union and Argentina PABLO T REVISÁN * I. Introduction The compensation and recovery of damages as a result of antitrust violations (which is herein (...)

Denis Waelbroeck, Mathieu Vancaillie Ian Forrester - A Scot Without Borders Liber Amicorum Vol. II ’Oh illustrious Caesar! If it is sufficient to deny, what hereafter will become of the guilty?’ On the presumption of innocence, the burden of proof, and the standard of proof in EU competition law

1 Dec 2015

373 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume II ‘Oh illustrious Caesar! If it is sufflcient to deny, what hereafter will become of the guilty?’ On the presumption of innocence, the burden of proof, and the standard of proof in EU competition law D ENIS W AELBROECK AND M (...)

Frank Fine Antitrust in Emerging and Developing Countries: Featuring China, India, Mexico, Brazil, South Africa Part II: China
Dawn Raids in the EU and China: Fact and Fantasy

23 Sep 2015

ANTITRUST IN EMERGING AND DEVELOPING COUNTRIES | 2014 E DITION 57 Dawn Raids in the EU and China: Fact and Fantasy FRANK FINE 1 frank.flne@dehenglaw.com Head of International Antitrust, DeHeng Law Offlces Executive Director, China Institute of International Antitrust and Investment Abstract (...)

Andrew Gavil William E. Kovacic: An Antitrust Tribute Liber Amicorum Vol. I Designing Private Rights of Action for Competition Policy Systems: The Role of Interdependence and the Advantages of a Sequencial Approach

12 Dec 2012

GO TO TABLE OF CONTENT William E. Kovacic | An Antitrust Tribute - Liber Amicorum - Volume I Designing Private Rights of Action for Competition Policy Systems: The Role of Interdependence and the Advantages of a Sequential Approach * A NDRE W I. G AVIL ** agavil@law.howard.edu Professor of Law, (...)

A B C D E F G H I J L M N O P R S T U V

A

Absolute territorial protection • Abuse of dominant position • Abuse of economic dependence • Access to essential facility • Access to information • Access to the file • Advocacy • Agency agreement • Agent • Agreement (notion) • Amicus curiae • Ancillary restraints • Annulment • Anticompetitive object or effect • Anticompetitive practices • Antitrust • Applicable law • Arbitration • Article 11 letter • Automotive distribution

B

Barriers to entry • Bertrand (Nash) equilibrium • Bid rigging • Billing • Black cause • Block exemption (Regulation) • Boycott • Brand competition • Burden of proof • Business secrets • Buyer power

C

Cartel • Civil fine • Clearance phase I (merger) • Clearance phase II (merger) • Collecting society • Collective dominance • Collective redress (class action) • Comity • Competence • Competition policy • Complaint • Compliance programme • Compulsory license • Concerted practices • Concession • Concurrent jurisdiction • Consumers protection • Consumers’ associations • Contract • Control (change) • Control (notion) • Cooperation Agreement • Cooperation between competition authorities • Coordinated effects • Copyright • Corporate group • Corruption • Cost-based access • Criminal sanctions • Cross subsidisation

D

Damages • Dawn raids • De minimis notice • Direct effect • Discriminatory practices • Distribution agreement • Dominance (notion)

E

ECHR • Economic analysis • Economic efficiency • Economies of scale • Effect on trade between Member States • Effective judicial protection • EFTA Surveillance Authority (ESA) & Court • Environmental protection • Essential facility • European Competition Network (ECN) • Excessive prices • Exchanges of information • Exclusive distribution • Exclusive purchasing • Exclusive right (Art. 106 TFEU) • Exclusivity clause • Exhaustion • Extra-territoriality

F

Failing firm defence • Fidelity rebates • Fine • Fine mitigating • Foreign direct investment (FDI) • Form CO • Franchising • FRAND • Free riding

G

Geographic market • Group purchasing organization • Guidelines • Gun jumping

H

Hard core restrictions • Hearing officer • Horizontal agreement

I

Imputability • Independence and impartiality • Individual exemption • Intellectual property right • Inter-brand competition • Interim measures • International co-operation • International competition network (ICN) • Investigations / inquiries

J

Joint control • Joint venture • Judicial review

L

Legal privilege • Leniency • Lerner index • Letter of rejection of complaints • Licensing • Limitation period • Low prices

M

Mandatary (distribution) • Margin squeeze • Market economy investor • Market of goods or services • Market power • Market share • Media pluralism • Merger (notion) • Merger (prohibition) • Merger (withdrawal) • Merger control procedure • Merger remedies • Minority shareholdings • Misinformation

N

Ne bis in idem • Network effect • Non-competition clause • Notification • Nullity

O

Oligopoly

R

Referral (merger) • Refusal to deal • Regulated prices • Regulation • Relevant market • Remedies (antitrust) • Remedies (antitrust) • Request for information • Resale price maintenance (RPM) • Resale-below-cost • Restriction on exportation • Right against self-incrimination • Rights of defence • Rule of reason

S

Sector inquiry • Selective distribution • Services of general economic interest • Single branding • Sole control • Spill-over effects • Standard-Essential Patent (SEP) • State action defense • State aid (compatibility) • State aid (existing aid) • State aid (notification) • State aid (notion) • State aid (recovery) • State aid (tax ruling) • State aid (unlawful aid) • State measure • Substitutability • Sudden break of established business relationships

T

Technology transfer • Test SIEC (merger) • Test SLC (merger) • Transfer pricing • Transparency • Trustee (mergers) • Turnover threshold (merger) • Two-sided market • Tying or tied selling

U

Undertaking (notion) • Unfair commercial practices • Unfair competition • Universal service • Upstream market

V

Vertical agreement • Vertical restraints (or restrictions)