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

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 competition” is not unwarranted. However, blaming this on a heightened standard of proof as such risks missing the forest for the tree. As explained, shifts in the premises underpinning the interpretation and application of the competition rules and the principle of effective judicial protection as understood by the EU courts are important aspects of the broader picture to bear in mind in order to identify potential shortcomings in EU competition enforcement and properly evaluate the merits of possible options.

I. Introduction 1. Discussions about European Union (EU) competition enforcement in recent years have been dominated by concerns about the European Commission’s failure to detect, diagnose and remedy harmful conduct, especially by big tech companies, in a timely and effective manner. Among others, this failure has been attributed to a perceived gradual tightening of the evidentiary requirements in modern times, i.e., following the shift to a “more economic approach” [1] and the revamp of the enforcement regime with the adoption of Regulation (EC) No. 1/2003. [2] The rules on the burden and the standard of proof have occasionally been blamed as excessively demanding at the expense of effective enforcement in the digital sector and beyond, and calls have been made for their revisiting.

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