Extracting from the Court’s decision reveals the following points: • The standard of proof applicable to a particular agency action (e.g., merger, dominance, interim measures) is not changed based on an innovation theory of harm.18 • The analysis of potential innovation competition requires evaluation of both the effects of future competition as well as the likelihood that such competition will ev. [...] Then, in 2015, the Commission for the first time stretched the timeline for the entry of competing products in order to find harm to innovation and to justify the decision in Novartis/GSK.25 This decision necessarily relied on a significant degree of speculation, because products further up the developmental pipeline have an increasingly limited probability of becoming commercialized. [...] For instance, in its recent decision in Commission v CK Telecoms UK Investments, the European Court of Justice determined that the standard of proof required for the Commission to find a significant impediment to effective competition (“SIEC”) under the EUMR is whether mergers are “more likely than not” to give risk to a SIEC, applying the “balance of probabilities” test.30 While the case was a vi. [...] Although the CAT stated that there was no dispute as to the standard of proof required to demonstrate an SLC, it nonetheless disagreed with this statement of the burden of proof.34 Specifically, the CAT rejected the idea that the “CMA was not obliged to make a finding one way or the other, but simply resolve the question on the basis of whether it was more likely than not.”35 35. [...] These factors included the motives and thinking of the merging firms, the market value attached to the dynamic element, the contestability of the market, and the ultimate ability to monetize the dynamic market.39 37.
- Pages
- 8
- Published in
- France
