Fordham Competition Law Institute: International Antitrust Law & Policy
Facts are chiels that winna ding*
This essay reflects on how facts are established for purposes of European competition cases, how these facts are tested when they are inconsistent or disputed, and what improvements might be made. After noting some early characteristics of the Brussels enforcement regime, I describe the means currently available to gather facts, and will note that the Commission is armed with wide, effective and intrusive powers of enquiry, which it uses vigorously. I have picked a few examples of factual controversies to illustrate fact-handling problems (not to re-argue whether the outcome was right on the merits). What should we conclude from the fact that one competition authority or court decides one way, and another reaches a quite different factual conclusion? Both cannot be right, and divergences suggest that different procedures may lead to different outcomes.
In the concluding section, I suggest that as there is a spectrum of different situations where competition law is enforced, ranging from non- confrontational mergers to condemnations and severe punishments, so fact-finding processes could be calibrated to the needs of each situation.
* The stanza from the 1786 satirical poem "A Dream" by Robert Burns reads thus in the original: "But facts are chiels that winna ding, An' downa be disputed." A modern English translation would read: "Facts are fellows who will not be shaken, and cannot be disputed."
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