Mergers, Standard Of Proof And Expert Economic Evidence

There is an increasing use of complex econometric modelling in EC merger control proceedings. The question is whether econometrics are subject to a standard of evidence similar to that applicable to facts and theories that the Commission traditionally uses and articulates in its merger decisions or whether there should be some margin of discretion left to the Commission in the treatment and handling of econometric evidence. In the former case, EC courts would exert an intensive review of the Commission's use and articulation of econometric evidence. In the latter case, EC courts would adopt a rather deferential approach. While the issue has not yet been dealt with before EC courts, this article submits that the Commission should use econometrics with caution and, hence, should meet a relatively high evidentiary threshold before admitting the results of econometric models into evidence. Several guiding principles of evidence are suggested, which are not intended to negate the Commission's margin of discretion, but would, nevertheless, ensure that econometrics be subject to a fairly high standard of proof.