Anti-Competitive Effects: Legal Standards, Proof, and Exclusionary Effects

The article addresses the complexities of evaluating anti-competitive conduct and the inherent difficulty in attaining certainty regarding the effects and their causal link to the conduct. It proposes that various approaches can mitigate the stringent requirements of such assessments, including adjusting the substantive legal standard to avoid absolute certainty and employing a lower standard of proof.

The article underscores the crucial distinction between the substantive legal test and the standard of proof, emphasizing their frequent conflation in practice. It also explores the challenges posed by defining the principle of anti-competitive exclusionary effects, which can influence various aspects of competition.

While the substantive legal test remains uniform across EU and national levels, the standard of proof is determined by national law. The article discusses the implications of this differentiation for enforcement at both levels. The article further examines the concept of ‘potential’ effects on competition, highlighting its justification as a tool for addressing the difficulties of proving actual effects to a sufficient legal standard.

The article also explores the potential for confusion between legal tests and standards of proof when they are expressed in probabilistic terms. It analyzes the case law of the Court of Justice, which sometimes uses probabilistic language in its judgments.

Finally, the article delves into the ongoing debate surrounding the definition of anti-competitive exclusionary effects, acknowledging the lack of a concrete definition and the complexities of assessing their impact on various parameters of competition. It highlights the significance of understanding the distinction between these concepts for effectively assessing and addressing anti-competitive practices.