The Standard of Proof in EC Merger Control: Conclusions from the Sony BMG Saga
IES Working Paper Series 4/2008
RETHINKING MEDIA AND COMMUNICATIONS POLICIES, Caroline Pauwels, Harri Kalimo, Karen Donders and Ben Van Rompuy, eds., pp. 295-318, VUB Press, Brussels 2009
31 Pages Posted: 17 Dec 2009
Date Written: December 1, 2008
One of the most important developments in EC competition policy during 2006 was the Court of First Instance’s (CFI) Impala v. Commission judgment annulling the European Commission’s approval of the merger between the music units of Sony and Bertelsmann. It harshly criticized the Commission’s Decision because it found that the evidence relied on was not capable of substantiating the conclusion. This was the first time that a merger decision was annulled for not meeting the requisite legal standard for authorizing the merger. Consequently, the CFI raised fundamental questions about the standard of proof incumbent on the Commission in its merger review procedures. On July 10, 2008, the European Court of Justice overturned Impala, yet it did not resolve the fundamental question underlying the judicial review of the Sony BMG Decision; does the Commission have the necessary resources and expertise to meet the Community Court’s standard of proof? This paper addresses the wider implications of the Sony BMG saga for the Commission’s future handling of complex merger investigations. It argues that the Commission may have set itself an impossible precedent in the second approval of the merger. While the Commission has made a substantial attempt to meet the high standard of proof imposed by the Community Courts, it is doubtful that it will be able to jump the fence again in a similar fashion under normal procedural circumstances.
Keywords: EC law, mergers, recording industry, standard of proof, statement of objections
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