The ball is in your court: Evidential burden of proof and the proof-proximity principle in EU competition law

Abstract

This article addresses the limits of the application of presumptions of fact in EU competition law. It describes the most common presumptions of fact in competition law and their implications for evidential responsibilities. It illustrates the emergence of the proof-proximity principle, which allocates the evidential burden of proof on the party to whom the evidence is available or who is better situated to furnish it easily and promptly. This principle ensures the effectiveness of the fact-finding process in public and the private enforcement, while at the same time guaranteeing that Article 2 of Regulation 1/2003 is not violated. The article mentions other areas of law where the proof-proximity principle is applied, and analyses the principle's compatibility with fundamental rights of the defence. It is contended that the proof-proximity principle plays a major role in rendering presumptions of fact compliant with the presumption of innocence enshrined in Articles 6(2) ECHR and 48(1) of the EU Charter of Fundamental Rights.