Finally the ECJ seems to have settled the standard of proof issue in merger control cases: in the Bertelsmann and Sony Corporation of America v Impala case a few days ago. There was a considerable debate about the standard of proof in recent years. See for example the articles:
- David Bailey: Standard of Proof in EC Merger Proceedings: A Common Law Perspective. in Common Market Law Review. 2003
- Bo Vesterdorf: Standard of Proof in Merger Cases: Reflections in the Light of the Recent Case Law of Community Courts. in European Competition Journal. 2005/1.
- Wright Kathryn: Perfect Symmetry? Impala v Commission and Standard of Proof in Mergers. in European Law Review. 2007/3.
The ECJ in the referred case argued that:
- rules of evidence is a question of law (para. 44.)
- there is no general presumption that a notified concentration is compatible with, or incompatible with the common market (para 48.)
- Adelice 10 (6) is a specific expression of the need for speed and an exception to the general scheme (para. 49)
- merger decisions must be supported by “sufficiently cogent and consistent body of evidence” (para. 50.)
- there is no difference in burden of proof between the different típes of concentrations (horizontal, vertical, conglomerate), but the needed quality of evidence might differ (paras. 50-51.)
- and finally: the burden of proof is balance of probabilities (“It follows that, where it has been notified of a proposed concentration pursuant to the Regulation, the Commission is, in principle, required to adopt a position, either in the sense of approving or of prohibiting the concentration, in accordance with its assessment of the economic outcome attributable to the concentration which is most likely to ensue.”) (para. 52.)
To be continued…