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.
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