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Standards of Proof and Standards of Judicial Review in EC Merger Law - Chapter 6 - International Antitrust Law & Policy: Fordham Corporate Law 2005
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International Antitrust Law & Policy: Fordham Corporate Law 2005 - Hardcover International Antitrust Law & Policy: Fordham Corporate Law 2005 - PDF ___________________________________________________________________________________ Preview Page Chapter 6
STANDARDS OF PROOF AND STANDARDS
OF JUDICIAL REVIEW IN EC MERGER LAW
Tony Reeves and Ninette Dodoo†
I. INTRODUCTION
The standard to which the Commission must prove its case before
finding an undertaking to be in breach of the competition provisions of the
EC Treaty, or before prohibiting a merger under the EC Merger Regulation
(“ECMR”), has been the subject of intense debate and scrutiny among
academics, practitioners, the judiciary and the Commission in recent years.
The recent proliferation of appeals and annulments of Commission
decisions, particularly in the field of merger control, has intensified the
debate and highlighted the need for clarity regarding both the standard
the Commission must meet in order to prohibit a merger and the standard
of review applied by the Courts in relation to the Commission’s
decisions.1 The European Court of Justice (“ECJ”) judgment in Tetra
Laval2 of February this year has further contributed to the debate on both
the standard of proof required of the Commission and the intensity of
review permissible by the Court of First Instance (“CFI,” and together with
the ECJ, hereinafter the “Courts”).
Since 2002, regarded by many to have been the Commission’s annus
horribilis, the Commission has complained openly that the cumulative
effect of the CFI’s and ECJ’s recent judgments has been to raise the
standard of proof to such a degree that it would now be very difficult, if
not impossible, for the Commission to prove that certain types of mergers
are anticompetitive. These concerns were clearly articulated in the
Commission’s appeal3 of the Tetra Laval case where the Commission
accused the CFI of “purporting to apply a standard of review based on
manifest error of assessment while, in reality, applying a different
About the Editor:
Barry Hawk is Director of the Fordham Corporate Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.
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