Analytical shortcuts in EU competition enforcement: Proxies, premises, and presumptions

Abstract

Analytical shortcuts lie at the heart of competition enforcement and have crucial implications for both substance and procedure. Nevertheless, not all of them are created equal. This point has been rather missed in competition scholarship due to the tendency to use the term ‘presumption’ in an overly expansive and ultimately inaccurate manner. Aspiring to inject some conceptual clarity in the discussion, this work proposes a taxonomy for distinguishing common analytical shortcuts in law enforcement comprising proxies, premises, and presumptions in the technical sense. With this taxonomy in mind, it then takes a closer look at their operation in EU competition enforcement in particular. As the article demonstrates, proxies, premises, and presumptions play an intricate and multilayered role in the interpretation and application of the EU antitrust and merger rules that the generic use of the term ‘presumption’ fails to adequately capture. Given their significance for the effectiveness, efficiency, and accuracy of enforcement, competition authorities and courts should be conscious of their function and of their substantive and procedural implications and should use them appropriately and wisely.