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The Presumption of Harm – Means to the End: Significance, Standard of Proof and Implications

Talja, Dima

Opinnäytetyöt, Gradut ja muut tutkielmat
Alkuperäinen julkaisupäivä: 2.10.2017


The subject of the research is the presumption of harm caused by the cartels in Finnish competition law related damages proceedings.
The ineffectiveness of the private enforcement of competition law has led to the European Union legislating the Directive on Competition Damages 2014/104/EU, which aims at improving a claimant's position in the competition law related damages proceedings. The burden of proof put on the defendant by the presumption of harm is one of the means by which the Directive is designed to assist the claimant in obtaining compensation for the sustained damages. However, the contents of the presumption are open for interpretation, and there is no similar presumption in the Finnish legal system, which may cause uncertainty in future proceedings. For the purpose of predictability and legal certainty, it is essential to interpret the contents and the application of the presumption.

The research approaches the presumption through its contents, effect and rebuttal with a purpose of systematising the matter. The applied research method is primarily legal dogmatic, and the EU and Finnish legal praxis, in addition to the Finnish and foreign literatures on relevant topics are used as the source materials. In addition to the above, foreign practice is utilised through the analogous interpretations and recommendations. However, the effect of the presumption and its rebuttal is examined mainly through the standard of proof. The research compares the presumption of harm to the general perceptions of presumptions, and also to the Finnish and EU presumptions. An appropriate standard of proof for the rebuttal of the presumption is determined by examining the Finnish and EU legal praxis and literature. The standard of proof is used to analyse the strength of the presumption and its implications for future proceedings. In addition, the research considers the critique of the presumption and whether it is appropriate to apply a broad or a narrow application of the presumption.

The research concludes that the presumption, despite the fact that it could prove to be a mere formality, should be strong, primarily taking into account the required standard of proof for its rebuttal and the objectives of the competition law. The research suggests that the most appropriate standard of proof for the presumption is "credible". However, the standard of proof might flex depending on the circumstances and the cartel type, for example through the theme probability method. Moreover, it is expedient to apply a broad application of the presumption, as it will contribute to the functioning of the competition law system and keep the number of erroneous judgments at a satisfactory level.


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