Although often mentioned in Court cases, the “public distancing requirement” has so far never been accepted as a defense. The key function of this requirement is to rebut the so-called Anic presumption, according to which an undertaking that has attended (even passively) an anticompetitive meeting is deemed to have participated in a “concerted practice” within the meaning of Article 101 TFEU. The key function of the “public distancing requirement” is, therefore, to rebut a presumption of liability. From this point of view, the public distancing requirement performs a central role, in that it helps resolve the inherent tension between the “Anic presumption” and the presumption of innocence. With that role in mind, this article discusses the scope, stringency and judicial review of the public distancing requirement in light of the most recent case law of the EU courts.
World Competition