The Ball is in Your Court: Evidential Burden of Proof and Proof-Proximity Principle in EU Competition Law
25 Pages Posted: 2 Feb 2017
Date Written: 2014
This article addresses the boundaries of application of presumptions of fact in EU competition law. It describes the most common presumptions of fact in competition law and their implications on the evidential responsibilities of the parties. 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 easily and promptly lead it. This principle ensures the effectiveness of the fact-finding process in the public and the private enforcement, while, at the same time, guaranteeing that Article 2 of Regulation (EC) 1/2003 is not violated. After describing other areas of law where the proof-proximity principle is applied, the article analyses the compatibility of the principle with fundamental rights of the defence in EU competition law. 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 Charter of Fundamental Rights of the European Union.
Keywords: burden of proof, EU competition law, evidence, presumptions of fact, proof-proximity
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