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Fernando Castillo de la Torre and Eric Gippini Fournier

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Fernando Castillo de la Torre and Eric Gippini Fournier

This chapter explains the aim of the book and its scope. It distinguishes issues of law and fact, and explains the relevance of this distinction. It briefly presents the structure of the enforcement system of EU competition law, the interaction of the administrative and the judicial stage, and the gathering of evidence at the administrative stage, always having in mind certain criticisms formulated against the system as being incompatible with fundamental rights.

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Fernando Castillo de la Torre and Eric Gippini Fournier

Chapter 2 examines some traditional concepts used in the laws of evidence, such as the legal burden of proof and the standard of proof, as applied in EU competition law, but also explores in depth the different manifestations of the evidential burden of proof, the use of presumptions and inferences, and the different variables that may influence the ‘persuasive effect’ of the evidence. The chapter addresses the influence of the presumption of innocence, and interprets existing case law as not necessarily applying the same standard for all the different constituent elements of the infringement. The case law also requires a holistic assessment of the evidence, and how this is carried out and the different variation of this holistic assessment are analysed. The role that discretion may have in the assessment of the evidence is also examined.

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Fernando Castillo de la Torre and Eric Gippini Fournier

Chapter 3 examines in turn the four specific areas where evidentiary issues often arise in competition litigation, with in depth descriptions of the relevant case law and the underlying applicable principles: first, the burden and the standard of proof in the context of the finding that there is a single and continuous infringement, as well the liability of each undertaking for it; second, the most frequent evidentiary issues relating to the proof of the duration of the infringement or the participation of the undertaking (beginning, interruptions, termination); third, the principles applicable as regards the possible defences (such as objective justifications or Article 101(3) TFEU); finally, evidence in the context of fines, where standards may vary depending on the element of the calculation of the fine (value of sales, gravity, aggravating and attenuating circumstances).

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Fernando Castillo de la Torre and Eric Gippini Fournier

Chapter 4 focuses on the intrinsic probative value of each type of evidence, after some introductory sections on the types of evidence and the admissibility of the evidence. The prevailing principle in Union law is the unfettered evaluation of evidence, the only relevant criterion for such evaluation being the reliability of the evidence. Even if evidence must be assessed together, case law has increasingly developed certain guidance as to the value to typically give to pieces of evidence showing certain features. The chapter examines two main types of evidence, evidence being drawn up at the time of the events (in tempore non suspecto) and evidence drafted for the purpose of the procedure (in tempore suspecto), analysing the elements that may tend to increase or decrease the probative value of each piece of evidence. The value of economic studies and of the attitude of the undertaking during the proceedings are given particular attention in separate sections.

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Fernando Castillo de la Torre and Eric Gippini Fournier

Chapter 5 presents the main features of the procedure before EU Courts. First, some specific issues relating to how to plead competition cases are explored. Second, the chapter examines in depth the rules relating to the gathering of evidence during court proceedings, and the roles of the parties and the judges. Finally, two specific types of evidence, oral testimony and expert reports, are examined in this chapter, insofar as this type of evidence is not already part of the administrative file, and it is ordered by the Court or provided for the first time by the parties in view of challenging or defending the decision.

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Fernando Castillo de la Torre and Eric Gippini Fournier

Chapter 6 covers the scope and the standards of judicial review. The chapter clearly distinguishes the review of the findings of the constituent elements of the infringement, on the one hand, and the fine, on the other. The powers of EU Courts are different in these two areas, since EU Courts have ‘unlimited jurisdiction’ for the amount of the fines. The nature of the review, the legal framework and the practice are examined, as well as the interaction between the two types of review. Controversial issues, such as the possibilities of providing new evidence not adduced during the administrative procedure, and the review of ‘complex economic assessments’, deserve particular attention. All these issues are also analysed from a historical and theoretical perspective, and in the light of the right to a fair trial and effective judicial review. A final section deals with two specificities of the outcome of judicial review in competition cases, namely the possibility of partial annulment and the possible extensions of certain findings to other applicants which did not raise a plea or submission.

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Fernando Castillo de la Torre and Eric Gippini Fournier

Fernando Castillo de la Torre and Eric Gippini Fournier, two of the most experienced competition litigators at the European Commission, undertake an in-depth analysis of the case law of the EU Courts on the rules of evidence, proof and judicial review, as they are applied in EU competition law. These topics often engage with fundamental rights, and the book takes stock of the most frequent criticisms that are made of the EU enforcement system and review by EU Courts. The result is an extremely thorough and well-structured review of the relevant rules of law and of the precedents. The authors combine valuable insights and critical analysis to construct a definitive yet balanced portrayal of the state of EU competition law.