European Competition Law Annual 2009: The Evaluation of Evidence and its Judicial Review in Competition Cases

In 2009, the Workshop participants were: Rafael Allendesalazar, Kelyn Bacon, Judge Gerald Barling, Simon Bishop, Judge Joachim Bornkamm, Judge Michael Boudin, Jochen Burrichter, Dennis Carlton Fernando Castillo de la Torre, Justin Coombs, Lorenzo Copp,i Claus-Dieter Ehlermann, John Fingleton Ian Forrester, Judge Nicholas Forwood, Eric Gippini-Fournier, Barry Hawk, Alberto Heimler, Per Hellström, Pieter Kalbfleisch, Robert Kwinter, Bruno Lasserre, Philip Lowe, Mel Marquis, Damien Neven Judge Aindrias Ó Caoimh, Luis Ortiz Blanco, John Ratliff, J. Thomas Rosch, Heike Schweitzer, Mario Siragusa, Jacques Steenbergen, James Venit, Judge Nils Wahl, Judge Vaughn Walker.Every year, top-level market regulators, academics and legal practitioners attend the Annual Competition Workshop organised at the European University Institute in Florence. The speakers are invited to discuss a particular set of critical issues in the field of competition law and policy. The entire content of the proceedings - both the oral discussions and the written contributions - are published in the European Competition Law Annual series.This is the fourteenth in the series, reproducing the debate which in 2009 examined the evaluation of evidence and its judicial review in competition cases. The issues discussed included, among others, the burden of proof, the standard of proof and the standard of review with respect to antitrust infringement decisions and merger decisions, both at the level of the EU and at the national level in a number of Member States.List of Sponsors v List of Participants xiii Introduction – Rules That Govern Rules: Evidence, Proof and Judicial Control in Competition Cases xv Mel Marquis Introduction to the Workshop – Competition enforcement and judicial review in Europe Presentations 2 Written contributions Bruno Lasserre, The European Competition System in Context: Matching Old Constitutional Principles and New Policy Challenges 61 Heike Schweitzer, The European Competition Law Enforcement System and the Evolution of Judicial Review 79 Panel I The European Commission: Standard of Proof, burden of proof and evaluation of evidence in antitrust and merger cases 9 Panel II The European Courts: Standard of proof, burden of proof, standards of review and evaluation of evidence antitrust and merger cases 24 Written contributions to Panels I and II I Per Hellström, A Uniform Standard of Proof in EU Competition Proceedings 147 II Philip Lowe, Taking Sound Decisions on the Basis of Available Evidence 157 III Luis Ortiz Blanco, Standards of Proof and Personal Conviction in EU Antitrust and Merger Control Procedures 175 IV James Venit, Human All Too Human: The Gathering and Assessment of Evidence and the Appropriate Standard of Proof and Judicial Review in Commission Enforcement Proceedings Applying Articles 81 and 82 191 V Nicholas Forwood, The Commission’s “More Economic Approach” – Implications for the Role of the EU Courts, the Treatment of Economic Evidence and the Scope of Judicial Review 255 VI Aindrias Ó Caoimh, Standard of Proof, Burden of Proof, Standards of Review and Evaluation of Evidence in Antitrust and Merger Cases: Perspective of Court of Justice of the European Union 271 VII Nils Wahl, Standard of Review – Comprehensive or Limited? 285 VIII Eric Gippini-Fournier, The Elusive Standard of Proof in EU Competition Cases 295 IX Fernando Castillo de la Torre, Evidence, Proof and Judicial Review in Cartel Cases 319 X Ian Forrester, A Bush in Need of Pruning: the Luxuriant Growth of “Light Judicial Review” 407 XI John Ratliff, Judicial Review in EC competition cases before the European Courts: Avoiding double renvoi 453 XII Justin Coombs and Jorge Padilla, The Use of Economic Evidence before the Courts of the European Union 473 Panel III National competition authorities: standard of proof, burden of proof and evaluation of evidence in antitrust and merger cases 485 Written contributions to Panel III I Alberto Heimler, The Legal Significance of Economic Evidence in Antitrust Cases: Some Comments Based on the Italian Experience 513 II Pieter Kalbfleisch, Standard of Proof, Burden of Proof and Evaluation of Evidence in Antitrust and Merger Cases: A Perspective of the Netherlands Competition Authority 533 III Jacques Steenbergen, Rules of Evidence in Competition Cases: An NCA Perspective 549 IV J. Thomas Rosch, Observations on Evidentiary Issues in Antitrust Cases 557 V Rafael Allendesalazar and Paloma Martínez Lage, Evidence Gathered through Leniency: From the Prisoner’s Dilemma to a Race to the Bottom 565 VI Mario Siragusa, Antitrust and Merger Cases in Italy: Standard of Proof, Burden of Proof and Evaluation of Evidence 579 VII James Rill and Jaimee Lederman, Evidence in Judicial Review of U.S. Federal Trade Commission and U.S. Department of Justice Merger Cases 601 VIII Dennis Carlton, How Should Economic Evidence be Presented and Evaluated? 611 Panel IV National courts in major jurisdictions: Standard of proof, burden of proof, standards of review and evaluation of evidence in antitrust and merger cases 623 Written contributions to Panel IV I Vaughn Walker, Evidence in Competition Cases: An American Trial Judge’s Perspective 653 II Michael Boudin, Evidence and the Formulation of U.S. Antitrust Law 665 III Kelyn Bacon, Standard of Proof, Standards of Review and Evaluation of Evidence in UK Antitrust and Merger Cases 671 IV Jochen Burrichter and Hans Logemann, Evaluation of Evidence in National Courts: Reflections from the German Perspective 683 V Calvin Goldman, Robert Kwinter, Navin Joneja and Chad Leddy, A Canadian Perspective on the Evaluation of Evidence in Antitrust and Merger Cases in the Context of Recent Changes to Canada’s Competition Law 697 VI Barry Hawk and James Keyte, Separating the Wheat from the Chaff: How the U.S. Courts Analyze Antitrust Evidence 713 References 751 Table of cases, legislation and guidance 76