Making your case under Art. 101, 102 TFEU: the evidence standards in competition law appeals and cartel damage proceedings

The literature on Art. 101 and Art. 102 TFEU typically covers the legal requirements for finding violations and the economics underlying the legal theories of harm. The focus of that literature is on whether the enforcement agencies or civil claimants “got it right” in substance. What is less often discussed, at least beyond individual cases, is how the courts deal with issues of factual uncertainty. This is the realm of procedural law, more specifically the court rules and related jurisprudence on the taking and assessment of evidence. The present article argues that the European Court of Justice’s case law on evidence-related matters constitutes a largely harmonized body of law, although procedural competences remain dispersed among the EU and the Member States. This finding is of practical relevance as it allows to develop general principles for evidence-based strategies in court.