Abusive Practices in Competition Law
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Abusive Practices in Competition Law

Edited by Fabiana Di Porto and Rupprecht Podszun

Abusive Practices in Competition Law tackles the difficult questions presented to competition lawyers and economists regarding abusive practices: where and when is the red line crossed in competitive advances? When is a company explicitly dominant? How do you handle those who hold superior bargaining power over others but are not classed as dominant?
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Chapter 3: Presumptions and short-cut rules in abuse regulation: (where) do EU and US antitrust approaches meet?

Pieter Van Cleynenbreugel

Abstract

The EU and US legal orders rely on presumptions and other rules of evidence permitting to establish, to the requisite legal standard, the presence of anticompetitive abusive behaviour. This chapter seeks to highlight how and when both legal orders rely on such presumptions and other rules of evidence and what impact such differentiated reliance has on the potential for both legal orders to converge on substantive abuse regulation questions. To that extent, it distinguishes and analyses two different categories of rules of evidence (short-cut rules and evidentiary presumptions) present in both legal orders. General policy and case law evolutions allow to infer that both legal systems seemingly attest to a move away from short-cut rules in favour of evidentiary presumptions. In the US, the latter kind of presumptions are also even more limited in scope and scale. Building on that analysis, the chapter subsequently questions to what extent short-cut rules and evidentiary presumptions serve as analytical benchmarks in the quest for a more globally streamlined abuse regulation framework.

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