The Allocation of the Legal Burden of Proof in Article 101 TFEU Cases: A ‘Clear’ Rule with Not-So-Clear Implications

Abstract

This article evaluates the allocation of the legal burden of proof in cases concerning the application of Article 101 TFEU, as prescribed by Article 2 of Regulation 1/2003 which provides that the Commission is responsible for establishing that an agreement or concerted practice constitutes a restriction of competition by object or effect, whereas it is for the undertakings to demonstrate the ‘defence’ of Article 101(3) TFEU. The article investigates how this shared division of the legal burden instructs competition analysis under Article 101 TFEU and affects its enforcement; and secondly, whether such a bifurcated apportionment of the burden of persuasion respects the evidential prescriptions of the presumption of innocence. The analysis of these two questions yields the conclusion that shifting the legal burden of establishing the conditions of Article 101(3) TFEU on the undertakings is prone to distort the substantive scope of Article 101 TFEU and increase the risk of over-enforcement, whilst it is also at odds with the presumption of innocence. On this basis, it is submitted that Article 2 of Regulation 1/2003 must be re-read as placing the whole legal burden on the Commission and imposing only an evidential burden on defendant undertakings.