REGULATING THE INFERENTIAL PROCESS IN ALLEGED ARTICLE 101 TFEU INFRINGEMENTS

Kenneth Khoo

Journal of Competition Law and Economics, 2017, vol. 13, issue 1, 45-88

Abstract: EU competition law has various evidentiary rules and presumptions relating to the existence of collusive activity. I consider the effect of these rules and presumptions on economic efficiency, and highlight two forms of inefficiency associated with existing procedural law. First, suboptimal regulation of the inferential process increases the risk of “false positives,” a type of erroneous inference that is particularly problematic in the setting of collusion. I show that where existing procedural law allows the inference of collusive activity from the parallel conduct of firms, there is a risk that the trier of fact may infer anticompetitive conduct from factually neutral or procompetitive conduct. Second, I illustrate a different type of inefficiency that arises in competition law cases. Because evidential rules and presumptions have the potential to influence the behavior of firms in a collusive setting, overregulation of the inferential process has the potential to ameliorate the sustainability of a collusive equilibrium, undermining a key rationale of substantive competition law. I set out three specific areas of procedural law which exhibit these forms of inefficiencies, and argue for appropriate reformation of the law.

JEL-codes: K21 L41 (search for similar items in EconPapers)
Date: 2017
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Persistent link: https://EconPapers.repec.org/RePEc:oup:jcomle:v:13:y:2017:i:1:p:45-88.

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Journal of Competition Law and Economics is currently edited by Nicholas Economides, Amelia Fletcher, Michal Gal, Damien Geradin, Ioannis Lianos and Tommaso Valletti

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