The Standard of Proof in EC Merger Control: Conclusions for the Sony BMG Saga

Institute for European Studies Working Paper No. 4/2008

31 Pages Posted: 25 Mar 2010

See all articles by Ben Van Rompuy

Ben Van Rompuy

Leiden Law School - Europa Institute; Vrije Universiteit Brussel (VUB) - iMinds-SMIT

Date Written: December 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.

Suggested Citation

Van Rompuy, Ben, The Standard of Proof in EC Merger Control: Conclusions for the Sony BMG Saga (December 2008). Institute for European Studies Working Paper No. 4/2008, Available at SSRN: or

Ben Van Rompuy (Contact Author)

Leiden Law School - Europa Institute

Steenschuur 25
Leiden, 2311ES

Vrije Universiteit Brussel (VUB) - iMinds-SMIT ( email )

Pleinlaan 9
Brussels, 1050

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