Burden of proof and judicial review

Coupled with substantive liability rules, burdens of proof and standards of judicial review can be dispositive of the outcome of unilateral conduct enforcement. The aim of this chapter is to shed further light on the burden of proof and judicial review in abuse of dominance cases under Article 102 TFEU in the European Union and in monopolization cases under Section 2 of the Sherman Act in the United States. As the analysis shows, there are remarkable similarities between the two jurisdictions: the burden of proof is shared between the parties, while public enforcers are afforded a degree of deference. At the same time, however, there are differences, too, which stem from the specific features of the EU and the US substantive rules and enforcement contexts. Moving forward, greater clarity and consistency in judicial pronouncements and practice concerning evidentiary matters and the intensity of courts’ control would be desirable.