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The Elusive Standard of Proof in EU Competition Cases

Lawyers trained in common law systems often enquire about the applicable standard of proof when the EU Courts in Luxembourg (the General Court and the Court of Justice) review the legality of competition law decisions of the European Commission. This article shows that, despite occasional references in the English language versions of some recent judgments, the concept of ‘standard of proof’ as such does not form part of the Courts’ reasoning process. The EU Courts seem more influenced by the predominant conception in civil law countries – the vast majority of EU Member States have civil law systems – where the judge decides according to the persuasiveness of the evidence without being bound by pre-determined evidentiary or probability ‘thresholds’. The elusive and largely fruitless quest for ‘the’ standard of proof that has mired so many authors appears to be a blind alley. With specific reference to competition cases, the article then explores some factors (including, for example, the distinction between actions and consequences or the judge’s implicit views on economic ‘normality’), which may contribute to explaining the process of persuasion in litigation before the EU Courts.