The Standard of Proof in EC Merger Control - The Impact of Airtours, Schneider and Tetra Laval

Abstract: Three cases decided by the CFI, Airtours, Schneider Electric and Tetra Laval, along with the ECJ's judgement in the appeal of the Tetra Laval case, may have changed the way the Courts and the Commission approach questions of proof in the future. In these cases, the CFI did not hesitate to conclude: ''the contested decision does not establish to the requisite legal standard that the modified merger would give rise to significant anti-competitive effects.'' The question of burden and standard of proof in EC merger proceedings has previously not received thorough attention from the legislator, the Courts or experts in the field of competition law. Indeed, the New Merger Regulation does not contain any specific provisions on the subject. Nevertheless, the four judgements signal an increasing willingness by the Courts to scrutinize the Commission and even present the possibility of the Courts substituting their opinion for the assessment of the Commission. However, the cases have also added a great deal of uncertainty as to what the new standard actually entails. It is essential for the future legal certainty that the ambiguities surrounding the standard of proof be resolved. This thesis will attempt to resolve what different standards of proof were applied in the recent judgements and how these standards may affect future merger proceedings, particularly, in light of the New Merger Regulation and the accompanying Horizontal Merger Guidelines. The analysis will show that the standard of proof in EC Merger Control is far from clear. However, some inferences can be drawn from the four judgements analysed in this paper. Airtours and Schneider show that the Courts will be likely to use flaws in the Commission's own market investigation when overturning the Commission's predictions. Thus the judgements demonstrate the Courts being rigorous in their assessment of historic facts. Furthermore, Tetra Laval illustrates that the Courts will be more ready to overturn hypothetical predictions made by the Commission of the effects of a merger, which do not immediately create a change in the market structure, if they are not based on particularly strong evidence. Furthermore, the cases illustrate uncertainty as to what standard of proof to apply in merger proceedings. I would tend to favour adopting a probability approach to the standard of proof in merger cases. As it is not really possible to prove anything, the probability approach provides a flexible way of ensuring that the standard of proof remains the same, while at the same time making it harder to prove improbable events, thus guaranteeing just outcomes based on facts and not the hypothetical predictions of the Commission. The more remote or improbable a given anti-competitive effect is, the more compelling the evidence required to prove that it will, in all likelihood, occur.