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Analytical Shortcuts in EU Competition Enforcement: Proxies, Premises and Presumptions

Research output: Contribution to journalArticlepeer-review

Original languageEnglish
Pages (from-to)392-433
Number of pages42
JournalJournal of Competition Law and Economics
Volume16
Issue number3
Early online date4 Jun 2020
DOIs
Accepted/In press2 Apr 2020
E-pub ahead of print4 Jun 2020
Published1 Sep 2020

King's Authors

Abstract

Analytical shortcuts lie at the heart of competition enforcement and have crucial implications for both substance and procedure. Nevertheless, not all of them are created equal. This point has been rather missed in competition scholarship due to the tendency to use the term “presumption” in an overly expansive and ultimately inaccurate manner. Aspiring to inject some conceptual clarity in the discussion, this work proposes a taxonomy for distinguishing common analytical shortcuts in law enforcement comprising proxies, premises and presumptions in the technical sense. With this taxonomy in mind, it then takes a closer look at their operation in EU competition enforcement in particular. As the article demonstrates, proxies, premises and presumptions play an intricate and multi-layered role in the interpretation and application of the EU antitrust and merger rules that the generic use of the term “presumption” fails to adequately capture. Given their significance for the effectiveness, efficiency and accuracy of enforcement, competition authorities and courts should be conscious of their function and of their substantive and procedural implications and should use them appropriately and wisely.

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