Applications of Legal Presumptions - European Union Competition Law

Sondah Ouattara

The following chart will layout descriptions of presumptions, and are not limited to competition law; rather the chart considers presumptions in a variety of areas. The cases noted examine how the Court of Justice of the European Union (“CJEU”) determines whether national courts are required to apply a particular legal presumption when certain facts are present. The chart further describes whether the CJEU upholds as valid the Commission or Member State’s application of the presumption and finds that the presumption exists under Treaty and was validly applied by the Member State, or whether the CJEU invalidates the Commission or Member State’s application of the presumption.

Case Name	Presumption At Issue	Valid/Invalid	Holding
T-Mobile Netherlands BV and Others v. Raad van bestuur de Nederlandse Mededingingsautoriteit The unilateral disclosure of information at a single meeting between mobile phone companies (Click here for the press release)	Whether under European Union Law, there exists a “rebuttable” presumption of a causal connection between the information shared and the conduct on the market, where there is a unilateral disclosure and the companies remain active on the market	Valid Presumption	Even where there has been one meeting, if information was disclosed, there will be a presumption of a causal link between the information disclosed and the competitors’ conduct on the market.
Partena ASBL v. Les Tartes de Chaumont-Gistoux SA A company registered in and subject to Belgian tax has an agent residing in and is self-employed in Portugal	Whether a Member State law that a person acting as an agent of a company or association that is responsible for paying Belgian corporation tax or the Belgian tax on non-residents, is irrebuttably presumed to pursue in Belgium a professional activity as self-employed person	Invalid Presumption	The presumption is discriminatorily applied. It is irrebuttable for persons who are residents of another Member State and who manage a company from abroad and rebuttable for persons who are residents of Belgium and do not manage companies from abroad. Although the Member State has a legitimate claim that the presumption can prevent social security fraud, by making it an irrebuttable presumption, the Member State prohibits any proof that the person is not managing a company from abroad.
Akzo Nobel NV and Others v. Commission of the European Communities Parent company fined because it held 100% of shares in five subsidiaries found to have participated in anti-competitive activities (Click here for the Press Release)	Whether the Commission can hold that where a parent company owns 100% of the capital of a subsidiary, it is irrebuttably presumed that the parent company exercises decisive influence over its conduct	Invalid Presumption	Merely holding 100% of the capital of a subsidiary is not enough to establish that the parent company exercises decisive control over the subsidiary’s conduct. The Commission has the burden of proving the parent company’s control with evidence in addition to its capital in the company.
Joao Pedro Lopes Da Silva Jorge Defendant married a French national and moved to France after being sentenced in Portugal to five years in prison for drug trafficking Defendant sought to serve his sentence in France but was denied because he was not a French national (Click here for press release)	Whether a Member State law can apply an irrebuttably presume that non-French nationals are not entitled to the member state’s refusal to execute an arrest warrant from another Member State	Invalid Presumption	The French Code of Criminal Procedure must be uniformly applied to nationals and non-nationals. The Member State’s argument that French nationals have a stronger bond with the country is unfounded, since a non-national can also have the same bond.
Michaniki AE v. Ethniko Simvoulio Radiotileorasis and Ipourgos Epikratias A company governed by Greek law solicited public contracts, whereas such contracts could only be awarded to companies with no ties to the media industry The contract was awarded to a company with its primary shareholder related to an individual in the media industry (Click here for press release)	Whether a Member State law can irrebuttably presume that a person seeking to obtain a public contract in Greece is precluded from doing so if he or she is the owner, partner, or main shareholder of a media company or affiliated with a media sector	Invalid Presumption	Although the provision in place has a legitimate purpose, i.e. transparency and equal treatment, it goes beyond what is necessary to meet that purpose by preventing anyone who falls within this category to be precluded from obtaining a public contract. A person in this position is simply excluded without being given the opportunity to rebut that presumption.
Council of the European Union v. Zhejiang Xinan Chemical Industrial Group Co. Ltd. The European Union imposes anti-dumping duties on certain chemicals, including Glyphosate Xinanchem, a Chinese company, manufactures and sells Glyphosate to the European Union When Xinanchem sought “market economy” status, it was denied solely because the majority of shares were owned by the State (Click here for press release)	Whether the Commission can irrebuttably presume significant state interference based solely on the state’s control, as shareholder, of an undertaking	Invalid Presumption	The Commission and the Council failed to consider the evidence presented by Xinanchem to demonstrate that despite the state’s control as shareholder, Xinanchem still operated under market economy conditions. The Commission and Council were required to “examine carefully and impartially all the relevant aspects of the individual case.”
Martin Luksan v. Petrus van der Let Breach of contract action between the principal director of a documentary and producer who had obtained the limited rights to distribute the documentary The parties agreed that the producer had the right to “broadcast to closed circles of users by video on demand and by pay TV”	Whether the Member State law can irrebuttable presumption that the producer has the sole rights to the exploitation rights of a film	Invalid Presumption	Member States cannot apply an irrebuttable presumption that in essence transfers all exploitation rights to the producer because such a presumption would result in the denial of fair payment to the principal director, the creator of the film.