Unravelling the Presumption of Innocence in EU Competition Enforcement: Fact, Law, and Discretion
Keywords:
Assessment of the evidence, Burden of proof, Complex economic assessments, Counterfactual, Discretion, Legal proof, Presumption of innocence, Standard of proof, College of EuropeAbstract
Among the rights undertakings enjoy when sanctioned due to antitrust violations in the EU is the right to be presumed innocent. Although it may seem a concept easy to apply, the presumption of innocence imposes on the authorities a rule on evidence assessment. In this sense, the subjectivity of the evaluation of evidence entails that the application of concepts as the burden and standard of proof becomes dependent on the personal beliefs of the judge. Furthermore, as competition law is inherently technical, it is difficult to ascertain what a reasonable doubt is. To an expert something may be evident, but to the layman, even spurious evidence may generate doubts. Against this background, the aim of this paper is threefold. First, it will provide an overview of the requirements of the presumption of innocence regarding evidence assessment and fact-finding and its implications for the burden and standard of proof. Second, since fact and law in competition enforcement are inextricably linked, it will argued that the presumption of innocence affects the substantive competition rules in the European competition order. Finally, this paper aims to provide an analysis of the compatibility discretion in complex economic assessments with the presumption of innocence.
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