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Hi again, Miguel, and apologies for the late reply (24 Court submissions yesterday -not kidding- is my objective justification.).My two cents on your points:First, there are two different concepts that generally get mixed up (I don’t mean by you, but by us lawyers, Commission and Courts). One is the “object” of the proof (i.e. What has to be proved) and the other is the “standard of proof” (to what degree you have to prove it).
In the case of Phase I decisions, the Merger Regulation is quite clear that the “object” is “absence of serious doubts”. This is, I believe, uncontroversial. As the Court itself acknowledges in this Judgment, if the Commission has doubts it has no discretion and shall undertake an in-depth Phase II review.So in reality, the Court may be right in ruling that the standard of proof is the same. The problem is that the “object” of the proof in each case is different (much more onerous in Phase I) and this means that “evidentiary threshold” should be higher in Phase I (because what has to be proved is different)This had been uncontroversial in previous merger case law:– Babyliss (T-114/02, para. 69): since “an in-depth market study is not carried out in Phase I”, the Commission had to demonstrate that the commitments were “sufficient to rule out clearly any serious doubts” as to whether effective competition would be significantly impeded.– Esyjet (T-177/04, para. 129): “the Commission was entitled, without committing a manifest error of assessment, to take the view that the proposed commitments constituted a direct and sufficient response capable of clearly dispelling all serious doubts”.You mention that “if anything, the bar would actually be lower in Phase I cases, if only because the Commission lacks knowledge of the full facts at that stage — it simply doesn’t have all the evidence, which makes sense given that the outcome of a Phase I investigation”.
My sense is that these circumstances are precisely what justify the higher bar: the idea being that the Commission shouldn’t take an informed decision without knowledge of the full facts and enough evidence (that is also what Kokott says in para 210 of her Opinion in Impala). On this, read also the case-law cited 5 paras belowIn other words, the Commission should only do away with the need to examine something thoroughlly only when it’s clear that it won’t pose problems. If you’ve doubts (theoretically an objective concept), then it should continue to investigate.Now, do I think the standard of “proof” should be the criminal “beyond reasonable doubt” one?
That’s what Kokott said, but probably that’d be asking to much. Nonetheless, I insist, the Commission should in any case prove (under the standard we choose: the Court has now said that the applicable one is the manifest error test) that it could not have had “serious doubts” (again the object-standard issue).So what should that standard be? I guess in reality it shouldn’t be neither the “beyond the reasonable doubt one” nor the “manifest error” one. I would (and did) argue that all the right answers lie on the State aid case law:The European Courts have noted that in its review of State aid the Commission may restrict itself to the preliminary examination under Article 108(3) the equivalent of Phase I only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the common market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 108(2)’ (emphasis added).As you will notice, this is the point I was making earlier in this commentIn this sphere the Courts have also clarified that ‘the notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content. That investigation must be conducted objectively , comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aids with the common market.
It follows that judicial review by the Court of First Instance of the existence of serious difficulties WILL, BY NATURE, GO BEYOND SIMPLE CONSIDERATION OF WHETHER OR NOT THERE HAS BEEN A MANIFEST ERROR OF ASSESSMENT” (Caps are mine).The State-aid case-law is also useful in discerning the circumstances that might point to the existence of ‘serious doubts’ or ‘serious difficulties’. In particular, the European Courts have found that evidence indicating the existence of serious doubts can be found, among other, wherethe Commission’s decision does not contain clear data supporting its conclusions on the circumstances, effects or goal of the measure; where there are evident contradictions between the documents explaining the measure and the decision authorizing such a measure; or where there is a link or resemblance between the measure at stake and other measures which in the past triggered the initiation of the investigation phase. I´ve citations for all of these should you be interestedThanks for spurring an interesting debate which (given the lenght of our respective comments) we might be the only ones following!Enjoy the sunny weekend. Interesting topic indeed, and the points you raise are certainly valid and well supported. Mine was an attempt to spark a debate, not on how this has been dealt with in the Microsoft case in particular, but on whether there may generally be reasonable alternatives from a legal point of view in dealing with the standard of proof that the Commission’s has to satisfy in its merger control decisions. And, of course, the role that these alternatives may have, if they do in fact exist, in ECJ rulings that constitute a shift in past practice.Of course, I can’t discuss with what the current state of EU Law (through case law) is, nor is it my intention to do so.However, I do have a couple of remarks on standard vs object of proof. In no particular order:1.
I cannot fully agree with using state aid cases in analogy to merger control cases. As a matter of principle, all state aid (that distorts competition and affects trade between Member States) is forbidden unless the scheme meets certain conditions (and is properly notified by the State in question and is reviewed by the Commission). We can therefore agree that the Commission has to prove that the measure won’t conflict with the internal market in order to clear it.In merger control cases, however, there is no such blanket prohibition to start with. It therefore begs the question of whether it is legally reasonable that a Phase I clearance decision has to prove (to whichever standard) that no “serious doubts as to the compatibility of the internal market” exist.2.
Indeed, I believe there are two indications that the standard (and object) in merger control is different from state aid cases, and, within the former, between Phase I and Phase II decisions, the effect of which is a return to a more classical approach towards the proof of “innocence” and “guilt” than in state aid investigations.a) Firstly, the consequences of not clearing a deal. While this would result in a prohibition decision in Phase II, in Phase I it would only give rise to further investigation, without prejudgment of the final decision. Bps file for code 128 barcode symbology for acrobat pro.
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Quite similar, in my view, to Article 101 or 102 cases, by the way. That’s why I insist that, contrary to what AG Kokott seemingly defends in para. 211 of her Opinion in Impala, the standard to oppose clearance can’t be higher in Phase I than in Phase II, given that the consequences are less harmful to the applicant(s) in a Phase I non-clearance decision than in a Phase II prohibition decision.b) Secondly, the wording of Article 6 of Regulation 139/2004 requires the Commission not to oppose a deal if it doesn’t have “serious doubts”. Clearly, the Commission does not have to make an airtight case to justify opening Phase II proceedings, it simply has to substantiate the existence of “serious doubts” that would require an in-depth analysis.
But when looking at what the Commission has to “prove” in order to hand down a Phase I clearance decision, the opposite shouldn’t hold true under general principles of law: “proving” that the Commission has no “serious doubts” (note it’s not just doubts, but serious ones) with the evidence available at that stage is close to impossible, so someone could always argue that Phase I clearance should only be available to very limited white-listed instances, e.g. To non-overlap deals, or to transactions where the combined market share is de minimis (or almost). It is within legal reason to require proof of the serious doubts that’d trigger Phase II proceedings, i.e. To have to prove there are elements that point to adverse future market effects, but I query whether anyone can be made to prove (to whichever standard) that they have no doubts (serious or not) about the absence of those future effects. In the remit of infringement proceedings, this would equate to having to prove innocence (rather than guilt) beyond doubt Furthermore, a literal interpretation of the EUMR should allow the Commission to clear a deal in Phase I even if it has doubts – so long as they aren’t serious doubts, that is.In all, and as I say acknlowedging that case law currently stands as it is, the margin of discretion afforded to the Commission should be higher to clear than to oppose in Phase I. In other words, the Commission certainly has to substantiate its claims that a deal may negatively affect the market to move on to a Phase II investigation (though to a lower standard than in a Phase II prohibition decision), but shouldn’t be required to prove that nobody within DG Comp had a suspicion that the transaction could in the future lead to negative effects on the market.
After all, how could it ever do so? Unless, of course, one advocates at the same time that only child-game transactions can be cleared in Phase I.Well, that’s as much that a sunny Sunday in Lux will allow me to concentrate on competition matters, so I’ll leave it here! Likewise, Miguel. I believe your attempt to spark further debate on a general point of interest has succeeded. You’ve also challenged me to reflect more on some of these issues.I understand that the purpose of the debate is to try to find a sensible way to deal with standard/object of proof issues possibly without having to build on previous case law. I’m happy to have that debate since on this particular issue my opinions are not conditined by the case (we only put forward the argument to set the stage rightly and clearly, but the solution of the case didn’t at all depend on it).With regard to your points,1.The point you make to contest the validity of the State aid analogy is interesting, and it was also the reasoning used in the Judgment to deviate from that stream of case law. However and although I see what you mean, I’m not sure I’m fully persuaded.In my view the Court gets its wrong when it says in the Judgment that State aid is presumed illegal unless authorized.
Unless I’m wrong, the only State aid presumed illegal is non-notified aid, and no such presumption exists regarding notified aid (which, at most, and given that the Commisison’s silence equates to an implicit authorization, you could even argue is presumed compatible with the internal market). And since the 2nd Phase standard(threshold/case law applies both to notified and non-notified aid, the Court’s distinction doesn’t hold (again, in my perhaps non-objective view). That’s why I still think the reasoning undertaken in State aid cases could very well be applied here.2.a) I see your point. Mine partly departs from the very same initial observation (that the consequences are different, and much less onerous in Phase II) but takes a different turn:In Phase I the Commission isn’t only authorizing, it’s authorizing and concluding that a serious review (one that, among others, includes market definition) isn’t necessary. Even if Kokkot’s “beyond reasonable doubt” test may sound excessive, I do agree with the underlying logic, that the Commission should only be able to (not only authorize but also) decide not to examine something in-depth when it is confident and can show that this in-depth assessment wouldn’t be necessary.Instead of comparing how onerous Phase I and Phase II outcomes are, let’s look at the situation from a different angle:Observe that out of the two possible outcomes in Phase I, only one is definitive. In other words, clearance is a final non-reversible decision with immediate effecs on the market, whereas the opening of Phase II isn’t, it’s a simple intermediate step in the procedure with no effects on markets. Should the standard of proof be the same for final acts and for intermediate acts?
I have serioud doubts about it!b) You say: “proving” that the Commission has no “serious doubts” (note it’s not just doubts, but serious ones) with the evidence available at that stage is close to impossible”. I don’t think I agree on that one. Most mergers raise no problem, or at least no SIEC, and it shouldn’t be difficult for the Commission to prove that “beyond serious doubts”, as, in fact, it does in practice in the great majority of cases.Those doubts would arise only if in order to authorize the Commission has to e.g. A wrong prediction:– Commission decision in Microsoft/Skype:para: 213.
“A number of respondents to the market investigation also pointed out that by acquiring the critical mass of Skype’s users, Microsoft could create an exclusive, or preferential, interoperability between the Skype’s user-base and its Lync application”paras. 217 and 220: “For the reasons above, the Commission concludes that Microsoft has no ability and no incentive to engage with Skype in such a strategy”– Microsoft’s blog post from a few days ago announcing that “drawing upon the strengths of both programs, the next version of Lync will become Skype for Business” “We believe that Skype for Business will again transform the way people communicate by giving organizations reach to hundreds of millions of Skype users outside the walls of their business,” (availablesee alsocould have rested your case.