Presumptions in EU Competition Law: Blurring the Substantive-Procedural Dichotomy

Abstract

In EU competition law, presumptions are widely used for reasons of efficiency. However, the legal mechanism for the establishment and application of presumptions in the case law of the Court of Justice of the European Union may not always support efficiency. Instead, the fact that CJEU not only considers the systematic concept of presumptions per se, but also takes into account the full effect of EU law and any directly applicable general legal principles renders the establishment and the application of presumptions unpredictable and sometimes inconsistent. This phenomenon owes largely to the CJEU's contextual approach in interpreting EU law and the fragmentary nature of this approach. To have a better understanding of this phenomenon, this article first explores the operation of presumptions in EU competition law; second, through concrete examples, it examines the Court's approach to establishing and applying the presumptions; third, it identifies the potential impacts of the Court's contextual approach on the enforcement of EU competition law. The article seeks to demonstrate that the Court's interventions in presumption-related issues have blurred the boundary between substantive and procedural law, and thus risk narrowing the principle of national procedural autonomy. The Court's approach also presents challenges for the current system of decentralised enforcement of EU competition law by national courts.