The Elusive Standard of Proof in EU Competition Cases

Abstract

Lawyers trained in common law systems often enquire about the applicable standard of proof in competition litigation before the EU Courts. Yet this need to conceptualize in abstract terms one or several evidentiary "standards" is a minority approach within the EU. This article shows that, despite occasional references in the English language versions of some recent judgments, the Court of Justice and the General Court do not proceed by reference to standards of proof in the common law sense. This is rather an ex post construction by commentators. The elusive and largely fruitless quest for 'the' standard of proof that has mired so many authors appears to be a blind alley. The EU Courts seem more influenced by the predominant conception in civil law countries - the vast majority of EU Member States - where the judge decides according to the persuasiveness of the evidence without being bound by pre-determined evidentiary or probability 'thresholds'. With specific reference to competition cases, the article then explores a few of the factors which appear to play a role in the assessment of factual evidence by the EU Courts (including, for example, the distinction between actions and consequences, and the judge’s implicit views on economic “normality”).