EU Competition Law and Policy - compal

©Ariel Ezrachi, December 2012
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undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate that
the conditions for applying such defence are satisfied, so that the authority will then have to resort to
other evidence.’ (para 78)
‘Although according to those principles the legal burden of proof is borne either by the Commission or
by the undertaking or association concerned, the factual evidence on which a party relies may be of such a
kind as to require the other party to provide an explanation or justification, failing which it is permissible
to conclude that the burden of proof has been discharged.’ (para 79)
‘According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned
participated in meetings at which anti-competitive agreements were concluded, without manifestly
opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where
participation in such meetings has been established, it is for that undertaking to put forward evidence to
establish that its participation in those meetings was without any anti-competitive intention by
demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit
that was different from theirs (see Case C-199/92 P Huls v Commission [1999] ECR I-4287, paragraph 155,
and Case C-49/92 P Commission v Anic [1999] ECR I-4125, paragraph 96).’ (para 81)
‘The principles established in the case-law cited at paragraph 81 of this judgment also apply to
participation in the implementation of a single agreement. In order to establish that an undertaking has
participated in such an agreement, the Commission must show that the undertaking intended to
contribute by its own conduct to the common objectives pursued by all the participants and that it was
aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same
objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission
v Anic, paragraph 87).’ (para 83)
Comment
The alleviation of the claimant’s evidentiary burden is justified when information asymmetry prevents the
plaintiff from accessing information that is in the control of the defendant.
In paragraph 79 the Court of Justice indicated that presenting factual evidence indicating an infringement
of competition law may shift the burden to the defendant who will have to provide an explanation or
justification to prove that the factual evidence does not constitute an infringement of competition law.
Whereas the burden of proof in all European Member States is identical, the standard of proof in the
different jurisdictions varies and may, for example, be based on ‘balance of probabilities’ or ‘winning the
conviction of the court’.