A recent TILEC discussion paper by Laura Parret (TILEC) presents an original perspective on a classical legal theme, namely rules on proof. Such rules might be perceived by some economists as formalistic, or overly complicated. However, the paper argues that they are necessary to ensure the protection of higher principles, such as the presumption of innocence and proportionality. In addition, the case is made that the importance of such rules has increased since the promotion of a more economic approach to competition law. At the same time, lawyers should also avoid being too formalistic: there is no pressing need for a "right" standard of proof to be defined, contrary to what some lawyers are claiming after ECJ judgments such as Tetra
Laval. Lawyers should accept that the current standard is workable and sufficient as a basis, at least in cartel cases. Decision-makers can handle flexible and differentiated rules, and should be trusted to do so. However, it is essential for authorities and courts to adequately motivate their decisions, to be accountable both to the companies concerned and to the general public, and not in the least to allow for efficient judicial review. A revised version of the paper is forthcoming in the European Competition Journal.
