The Rules of Evidence in Private Enforcement of the EU Competition Law

The dissertation studies the rules of evidence in damages actions for EU competition law infringements. This study examines which norms of EU law and EU law principles govern evidentiary rules in Member States. Further, it discusses ambiguities and open questions in the entirety of EU law that relate to evidence matters in cases involving breaches of EU competition law. The study also investigates the more general theme of the parallel application of EU and national law, in order to explore how the substance and the goals of EU law affect the application of evidentiary rules in private competition enforcement cases. To serve this purpose, this study applies a predominantly legal doctrinal approach. Hence, this study interprets and systemizes relevant EU laws, EU caselaw and soft-law guidance, which provide details regarding evidence-related issues. The challenge in conducting this study also lies in the difficulty of extracting useful and relevant details from a large amount of EU caselaw and legal documents. It takes time, energy and patience to carry out such research. This study consists of six sections. Section 1 introduces the background of this topic (i.e. private enforcement of EU competition law), reviews contemporary literatures on related issues, proposes research questions, limits the scope of this study, and describes the legal doctrinal methodology applied. Section 2 discusses the current legal framework for this study, focusing mainly on the applicable EU principles, EU laws, EU caselaw, and soft-law guidance. Section 3 analyses the burden of proof. This section explores the legal burden to prove the infringement, the burden to prove other elements of liability including the harm and the causal link, and presumptions that are employed to alleviate an overwhelming burden of proof. Section 4 concerns issues related to standard of proof. This section analyses in detail the constitutive requirements for a damage claim and the level of persuasiveness to which claimants should prove. It includes standards of proof for the infringement (in stand-alone cases only), the harm, and the causal link between the harm and the infringement. Section 5 considers the central issue – access to evidence. This section enquires into the available approaches for claimants to obtain sufficient evidence to support their claims. The claimants have, in principle, two options, either to request direct access from competition authorities or to request access indirectly through national courts. Indirect access might target evidence in the hands of competition authorities, a competent review court, the defendant, or a third party. Section 6 concludes the dissertation, first by providing an overview of the issues discussed, second by presenting key findings and further implications therein, and third by looking into future research. This study observes that EU law and CJEU caselaw remain significantly silent on many issues related to evidentiary rules in private enforcement of EU competition law. In case of genuine ambiguities, the CJEU may interpret the Damage Directive and other EU law in the form of preliminary rulings. Thus, the CJEU is capable of incorporating certain features and concepts of the EU competition law into its caselaw that national courts must respect when they apply the relevant evidentiary rules. Such incorporation has given rise to a set of fragmentary and non-systemized rules of evidence when both EU law and national law apply in antitrust damages actions. This condition raises concerns when damages claimants are not certain of the applicable rules they could rely on, or of national courts’ application of those rules, or of the rights and obligations conferred to them by those rules. It also imposes higher requirements on the quality and capacity of national judiciaries and pushes national courts to be fully prepared for damages actions for EU competition law infringements. These features all reinforce the perception of EU competition law and damages actions for EU competition law infringements as highly specialized areas that are not easily accessible by ordinary judges or ordinary victims. Thus, damages actions for EU competition law infringements have deviated from other damages claims in normal civil torts