Volume 41 (2018) / Issue 2
Infringement decisions by one of the European competition authorities constitute either irrefutable evidence or prima facie evidence of an antitrust violation in cases brought before a national court. As a result, evidentiary rules applicable to investigations have a direct impact on the scope of potential damages exposure in civil litigation. The legal concept of the single and continuous infringement is an example of such an evidentiary rule. This construct has alleviated the burden for authorities to prove the existence of cartels whose membership and activities may have evolved over time. However, in order to ensure that defendants are not paying for harm they have not caused or could not have prevented, appropriate limiting principles are necessary.
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