Part III Tests of Abuse, 9 Defences

Subject(s):

Abuse of dominant position — Burden and standard of proof

This chapter explores the defences available to a prima facie case of abuse. Two preliminary issues had to be clarified first: the burden of proof and the thresholds of anti-competitive effects. When a prima facie case of abuse has been established, the dominant undertaking acquires the burden of adducing sufficient evidence to substantiate a defence. This calls for the determination of the degree of probability of the anti-competitive effects that the competition authority or claimant must prove. Defences under Article 102 can be divided into mere defences and objective justification. Mere defences do not plead a new primary fact but are limited to challenging the weight or significance of the evidence adduced by the competition authority or claimant. Objective justification is a defence that pleads a new primary fact consisting of benefits that contribute to long-term social welfare maximization.