The standard of proof is a core concept of competition law; it is the degree to which enforcers must prove their case to succeed in establishing the existence of a competition infringement or an anti-competitive merger. The evidentiary standard defines the quantity and quality of evidence the party must provide to meet the standard of proof required to find a violation or prohibit a merger. Yet, gathering the required evidence is no easy task. With the increasing complexity of establishing antitrust infringements, has the evidentiary standard been set too high? Could it be making it excessively difficult for competition authorities to prove their cases or block mergers? What about in assessments where concepts such as economic moats and entrenchment are involved? Should the standard of proof or the burden of proof be adjusted in the future?
On 26 February, the OECD Competition Open Day held a panel of international experts from academia and enforcement agencies to explore these and other fascinating questions around the standard of proof.
The session, available on replay below, was moderated by Antonio Capobianco (Deputy Head, OECD Competition Division) and had as invited speakers: Daniel Haar (Chief, Appelate Section US DOJ), Marc van der Woude (President, General Court of the EU) and Soo-jin Kang (Professor of Law, Korea University).
More about the 2025 OECD Competition Open Day at https://oe.cd/comp-od25
More OECD work on competition at https://oe.cd/competition
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