This presentation by David Bailey, Visiting Professor at King’s College was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.

1. VISITING PROFESSOR DAVID BAILEY
OECD, PARIS
5 DECEMBER 2017
David Bailey5 December 2017 1

2. OUTLINE OF PRESENTION
ISSUE 1: WHAT IS A PRESUMPTION?
ISSUE 2: WHY DOES EU COMPETITION
LAW ALLOW PRESUMPTIONS?
ISSUE 3: PRESUMPTIONS IN PRACTICE
ISSUE 4: FUTURE OF PRESUMPTIONS
David Bailey5 December 2017 2

3. WHAT IS A PRESUMPTION?
 A PRESUMPTION IS AN INFERENCE THAT CAN
NORMALLY BE DRAWN FROM THE EVIDENCE
 PRESUMPTIONS CAN BE CREATED BY
LEGISLATION, GUIDELINES OR JUDGES
 PRESUMPTIONS CAN BE ADMINISTRATIVE,
PROCEDURAL, FACTUAL OR LEGAL
 PRESUMPTIONS CAN BE CONCLUSIVE OR
REBUTTABLE
David Bailey5 December 2017 3

4. WHAT IS A PRESUMPTION?
HOW DOES A PRESUMPTION DIFFER
FROM:
 AN ASSUMPTION?
 AN ASSERTION?
 A ‘PER SE’ RULE?
 A BLOCK EXEMPTION?
 COMMON SENSE?!
David Bailey5 December 2017 4

5. EXAMPLES OF PRESUMPTIONS IN EU LAW
 DOMINANCE MAY BE INFERRED FROM VERY HIGH
MARKET SHARES: HOFFMANN-LA ROCHE, 1979,
PARA 41
 SALES BELOW AVERAGE VARIABLE COSTS ARE
PRESUMED TO BE ABUSIVE: AKZO, 1991, PARA 71
 PARTICIPATE IN A CARTEL IF FIRM ATTENDS A
MEETING WITH AN ANTI-COMPETITIVE PURPOSE:
AALBORG PORTLAND, 2000, PARA 81
 FIRMS ARE POTENTIAL COMPETITORS IF THEY GO
TO THE TROUBLE OF MAKING A MARKET-SHARING
AGREEMENT: TOSHIBA, 2016, PARAS 33-4
David Bailey5 December 2017 5

6. WHY DOES EU LAW ALLOW PRESUMPTIONS?
 EXPERIENCE SHOWS THE PRESUMED FACT TO BE
TRUE
 AG KOKOTT IN T-MOBILE, 2009, §93
 CJEU IN CARTES BANCAIRES, 2014, §51
 ECONOMICS SUPPORTS THE PRESUMED FACT
 ARTICLE 101(3) GUIDELINES, §21 ON LIKELY
NEGATIVE EFFECT OF OBJECT RESTRICTIONS
 ENFORCEMENT BENEFITS FROM PRESUMPTIONS
 AG MAZÁK IN GENERAL QUIMICA, 2011, §61
 BUT SHOULD THIS BE SUFFICIENT ON ITS OWN?
David Bailey5 December 2017 6

7. PRESUMPTIONS IN PRACTICE:
EXAMPLE OF LOYALTY REBATES
 THERE IS A LONG-STANDING PRESUMPTION
IN EU LAW THAT LOYALTY REBATES OF
DOMINANT FIRMS ARE ANTI-COMPETITIVE:
HOFFMANN-LA ROCHE v COMMISSION,
1979, PARA 89
 HOWEVER, THE PRESUMPTION LOOKED
AND FELT LIKE A ‘PER SE’ RULE
David Bailey26 April 2017 7

8. PRESUMPTIONS IN PRACTICE:
EXAMPLE OF LOYALTY REBATES
 THE PRESUMPTION THAT LOYALTY REBATES
ARE ANTI-COMPETITIVE IS REBUTTABLE
AND CAN BE REBUTTED BY
 ABSENCE OF FORECLOSURE AND/OR
 EFFICIENCIES
 COURT OF JUSTICE IN INTEL v COMMISSION,
2017, PARAS 137-139
David Bailey5 December 2017 8

9. THE FUTURE OF PRESUMPTIONS
 PRESUMPTIONS MAY BE EXTENDED TO NEW
SCENARIOS: E.G. ETURAS, 2016
 PRESUMPTIONS MAY BE REFINED TO
REFLECT NEW THINKING: E.G. MARKET
SHARES AS A ‘USEFUL FIRST INDICATION’
RATHER THAN A STRONG PRESUMPTION
David Bailey5 December 2017 9

10. THE FUTURE OF PRESUMPTIONS
 NEW PRESUMPTIONS WILL BE BORN:
 E.G. EXPEDIA, 2012, PARA 37 — OBJECT
RESTRICTIONS ARE PRESUMED TO BE APPRECIABLE
 E.G. MERCK (GUK), 2016, PARA 286 PAYMENTS
IN EXCESS OF LITIGATION COSTS TO DELAY
ENTRY ARE PRESUMED TO BE ANTI-COMPETITIVE
David Bailey5 December 2017 10

11. THANK YOU FOR YOUR ATTENTION
David Bailey5 December 2017 11