Judicial control of the Commission’s complex economic appraisals in EU competition enforcement has long troubled both academics and practitioners. Despite the commonly shared feeling that the marginal standard of review, as applied by EU Courts, is not as deferential as one might fear, its operation remains shrouded in vagueness, due to difficulties in defining the notion of “complex economic evaluations” as the trigger for a less strict standard of control and due to the lack of a clear understanding as to the errors that may invalidate the Commission’s analysis. This article sheds light on the judicial scrutiny of complex economic assessments, and demonstrates that (a) complex economic evaluations may come in different varieties and should not be seen as a uniform group, (b) the manifest error of assessment test is not an intangible formula of judicial scrutiny, contingent on one’s subjective perception of “manifestness”, but targets four specific defects in the Commission’s analysis: failure to correctly assess the material facts of the case, failure to take into account a relevant factor, taking into account an irrelevant factor that distorted the analysis, and failure to satisfy the standard of proof, and (c) EU Courts have three “aces” up their sleeve that may enable them to diminish the Commission’s margin of appreciation: economics, evidence review and Article 19(1) TEU.

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This article evaluates the allocation of the legal burden of proof in cases concerning the application of Article 101 TFEU, as prescribed by Article 2 of Regulation 1/2003 which provides that the Commission is responsible for establishing that an agreement or concerted practice constitutes a restriction of competition by object or effect, whereas it is for the undertakings to demonstrate the ‘defence’ of Article 101(3) TFEU. The article investigates how this shared division of the legal burden instructs competition analysis under Article 101 TFEU and affects its enforcement; and secondly, whether such a bifurcated apportionment of the burden of persuasion respects the evidential prescriptions of the presumption of innocence. The analysis of these two questions yields the conclusion that shifting the legal burden of establishing the conditions of Article 101(3) TFEU on the undertakings is prone to distort the substantive scope of Article 101 TFEU and increase the risk of over-enforcement, whilst it is also at odds with the presumption of innocence. On this basis, it is submitted that Article 2 of Regulation 1/2003 must be re-read as placing the whole legal burden on the Commission and imposing only an evidential burden on defendant undertakings.

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Ownership holds a core position in a market economy; however, property-related claims are uncommon in competition litigation. This article provides a brief account of the relevant case-law and explains its scarcity by reference to the caveat that accompanies the right to property, namely that it is subject to lawful restrictions. Indeed, the competition rules constitute examples of such limitations. It is submitted that the proportionality test seems to be the only way for undertakings to benefit from a property claim in antitrust litigation. It is also suggested that the right to property and the associated economic freedom may  have an impact on merger proceedings, either by increasing the requisite standards of procedural fairness, or by underpinning a presumption of legality as the guiding principle for merger evaluation.