PROBATIO DIABOLICA: REBUTTING THE SUBSTANTIVE PRESUMPTIONS IN THE ANTITRUST DAMAGES ACTIONS

This paper aims at providing a critical narrative of the rebuttable presumption that cartel infringements cause harm and the rebuttable presumption of parent companies liability for infringements of competition law committed by their subsidiaries. In using equity considerations, we aim to reveal the side effects of the rebuttable presumptions inherently envisaged by the Directive on Antitrust Damages Actions. The European Commission has widely applied legal presumption to ease its administrative burden in the field of public enforcement of competition law. The New Directive extends this controversial common practice to the mechanism of private enforcement of competition law. Although, the presumptions are rebuttable in theory, they weigh heavily on defendant companies that are facing probatio diabolica. The Directive does not address the question of what standard of proof is required for a defendant to put forward a successful rebuttal of these presumptions. In the absence of a requisite legal standard in rebutting the presumptions, their application interferes with the principle of equality of arms.