ARTICLES: EUROPEAN UNION - CARTELS - SINGLE AND CONTINUOUS INFRINGEMENT - EVIDENCE

Raising the EU evidentiary bar for the “single and continuous infringement” doctrine

Viewed against the backdrop of the European Commission’s withdrawal of a number of EU antitrust investigations for alleged collusive practices, the authors analyze the overhaul of the “single and continuous infringement” doctrine which has been progressively subjected to increasing evidentiary rigor by the jurisprudence of the European Courts. The more traditional precedents from the European Courts were in general very relaxed about the application of that doctrine by the Commission as the basis upon which liability could be established under Article 101 TFEU for alleged multi-party collusive practices. However, both the General Court and the CJEU have taken significant steps over the past 12 years to develop more coherent evidentiary standards to establish a company’s’ liability for its participation in a “single and continuous infringement”. Those steps have culminated in the Cases of Aalberts (2013), Soliver (2014) and Toshiba (2015), as a result of which there is now no doubt that the Commission cannot construct a case alleging collusion on the basis of circumstantial, indirect or incomplete evidence to prove a company’s liability for its participation in a broader continuous infringement.

I. Introduction 1. In the course of the year 2015, the current European Commission’s Competition Commissioner, Margrethe Vestager, closed a number of antitrust investigations into alleged violations of EU competition laws that had been opened by her predecessor, Joaquín Almunia. The case that arguably generated the most controversy in EU antitrust circles was the CDS investigation. [1] 2. This case had been pursued by the Commission against 13 banks and two financial organisations on the allegation that the defendant banks had colluded, under the auspices of Markit (a financial information and services company) and the International Swaps and Derivatives Association (“ISDA,” a trade association), in order to protect their position as traders of credit default swaps (“CDS”). Based on the

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Peter Alexiadis, Daniel G. Swanson, Alejandro Guerrero Perez, Raising the EU evidentiary bar for the “single and continuous infringement” doctrine, November 2016, Concurrences Review Nº 4-2016, Art. N° 81844, www.concurrences.com

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