This presentation by David Bailey, Visiting Professor at King’s College was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.
2. OUTLINE OF PRESENTION
ISSUE 1: WHAT IS A PRESUMPTION?
ISSUE 2: WHY DOES EU COMPETITION
LAW ALLOW PRESUMPTIONS?
ISSUE 3: PRESUMPTIONS IN PRACTICE
ISSUE 4: FUTURE OF PRESUMPTIONS
David Bailey5 December 2017 2
3. WHAT IS A PRESUMPTION?
A PRESUMPTION IS AN INFERENCE THAT CAN
NORMALLY BE DRAWN FROM THE EVIDENCE
PRESUMPTIONS CAN BE CREATED BY
LEGISLATION, GUIDELINES OR JUDGES
PRESUMPTIONS CAN BE ADMINISTRATIVE,
PROCEDURAL, FACTUAL OR LEGAL
PRESUMPTIONS CAN BE CONCLUSIVE OR
REBUTTABLE
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4. WHAT IS A PRESUMPTION?
HOW DOES A PRESUMPTION DIFFER
FROM:
AN ASSUMPTION?
AN ASSERTION?
A ‘PER SE’ RULE?
A BLOCK EXEMPTION?
COMMON SENSE?!
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5. EXAMPLES OF PRESUMPTIONS IN EU LAW
DOMINANCE MAY BE INFERRED FROM VERY HIGH
MARKET SHARES: HOFFMANN-LA ROCHE, 1979,
PARA 41
SALES BELOW AVERAGE VARIABLE COSTS ARE
PRESUMED TO BE ABUSIVE: AKZO, 1991, PARA 71
PARTICIPATE IN A CARTEL IF FIRM ATTENDS A
MEETING WITH AN ANTI-COMPETITIVE PURPOSE:
AALBORG PORTLAND, 2000, PARA 81
FIRMS ARE POTENTIAL COMPETITORS IF THEY GO
TO THE TROUBLE OF MAKING A MARKET-SHARING
AGREEMENT: TOSHIBA, 2016, PARAS 33-4
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6. WHY DOES EU LAW ALLOW PRESUMPTIONS?
EXPERIENCE SHOWS THE PRESUMED FACT TO BE
TRUE
AG KOKOTT IN T-MOBILE, 2009, §93
CJEU IN CARTES BANCAIRES, 2014, §51
ECONOMICS SUPPORTS THE PRESUMED FACT
ARTICLE 101(3) GUIDELINES, §21 ON LIKELY
NEGATIVE EFFECT OF OBJECT RESTRICTIONS
ENFORCEMENT BENEFITS FROM PRESUMPTIONS
AG MAZÁK IN GENERAL QUIMICA, 2011, §61
BUT SHOULD THIS BE SUFFICIENT ON ITS OWN?
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7. PRESUMPTIONS IN PRACTICE:
EXAMPLE OF LOYALTY REBATES
THERE IS A LONG-STANDING PRESUMPTION
IN EU LAW THAT LOYALTY REBATES OF
DOMINANT FIRMS ARE ANTI-COMPETITIVE:
HOFFMANN-LA ROCHE v COMMISSION,
1979, PARA 89
HOWEVER, THE PRESUMPTION LOOKED
AND FELT LIKE A ‘PER SE’ RULE
David Bailey26 April 2017 7
8. PRESUMPTIONS IN PRACTICE:
EXAMPLE OF LOYALTY REBATES
THE PRESUMPTION THAT LOYALTY REBATES
ARE ANTI-COMPETITIVE IS REBUTTABLE
AND CAN BE REBUTTED BY
ABSENCE OF FORECLOSURE AND/OR
EFFICIENCIES
COURT OF JUSTICE IN INTEL v COMMISSION,
2017, PARAS 137-139
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9. THE FUTURE OF PRESUMPTIONS
PRESUMPTIONS MAY BE EXTENDED TO NEW
SCENARIOS: E.G. ETURAS, 2016
PRESUMPTIONS MAY BE REFINED TO
REFLECT NEW THINKING: E.G. MARKET
SHARES AS A ‘USEFUL FIRST INDICATION’
RATHER THAN A STRONG PRESUMPTION
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10. THE FUTURE OF PRESUMPTIONS
NEW PRESUMPTIONS WILL BE BORN:
E.G. EXPEDIA, 2012, PARA 37 — OBJECT
RESTRICTIONS ARE PRESUMED TO BE APPRECIABLE
E.G. MERCK (GUK), 2016, PARA 286 PAYMENTS
IN EXCESS OF LITIGATION COSTS TO DELAY
ENTRY ARE PRESUMED TO BE ANTI-COMPETITIVE
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11. THANK YOU FOR YOUR ATTENTION
David Bailey5 December 2017 11