i. properly assess anticompetitive effects
The Commission was criticized for jumping to conclusions. While the conduct in question (a system of loyalty rebates), by its nature, could legitimately be deemed likely to have restrictive effects on competition, the GC clarified that this is a “mere presumption” that cannot relieve the Commission of its obligation to complete a careful analysis. In particular, where a dominant company submits, on the basis of supporting evidence, that the allegedly abusive conduct was not capable of restricting competition and not capable of producing the alleged foreclosure effects, the Commission has a duty to analyze carefully such arguments and evidence. The GC found that the Commission had failed to do so in this case.
ii. meet the requisite standard of proof
The GC clarified the burden of proof and the standard of proof required to establish the existence of an infringement of competition law. As to the standard, the Commission has to establish the existence of an infringement by means of a “sufficiently precise and consistent” body of evidence. The GC focused on the presumption of innocence, and how any doubts must operate to the advantage of the alleged infringer, and so the GC will not support an infringement finding if it still entertains any doubts about whether the Commission has met the requisite legal standard. The Commission has historically been permitted to rely on presumed effects and abstract theories of harm, and to some extent has not been pressed by the Courts to focus so heavily on hard evidence to prove actual (or at least very likely) impacts. Recent rulings — including this one — mark a shift towards prioritizing hard evidence. As a result, the Commission is increasingly focused on document collection in its enforcement practices, and this judgment will certainly add to that trend.
iii. conduct thorough and complete economic analyses
The GC concluded that the Commission committed a number of errors in its economic analysis and that the analysis was not complete. The GC thereby confirmed the importance of conducting a detailed and thorough economic analysis. To a certain extent, the Commission has already been doing this in its more recent investigations. For example, in its 2017 decision in Google Shopping, the Commission devoted over 120 paragraphs to its analysis of exclusionary effects. The GC’s ruling may nevertheless have an impact on ongoing Commission investigations and decisions under appeal, in particular, where similar arguments about the sufficiency of Commission economic analyses have been raised.
The Commission is assessing whether to appeal the GC’s judgment to the Court of Justice of the EU. Irrespective of whether it appeals, the Commission could still look to rectify the identified shortcomings in its 2009 decision by including additional analysis in a new decision. This is the approach the Commission has taken in relation to a number of prior decisions that have been annulled, but the Commission might also conclude that such additional analysis would no longer be feasible or serve any purpose, given that the conduct at issue happened almost 20 years ago. This time span, and the fact that the case may yet not be over, illustrates again the criticism that EU enforcement (including appeals cycles) simply takes too long. Coupled with the fact that the Court has found the Commission’s investigations to be insufficient, its seems fair to say that enforcement in this case has been both too little, and too late.
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