Safe harbours and legal presumptions in competition law


 5 December 2017  Paris

Competition enforcement is presented as consisting of two modes of analysis. On the one hand, agencies and courts are supposed to pursue detailed market analyses (e.g. rule of reason or effects test) to assess whether a conduct is anticompetitive. On the other, there are rules concerning certain forms of behaviour that dispense with market analysis altogether. There are rules for finding that a certain behaviour is presumed to be anticompetitive –so-called presumptions of illegality – and for finding that conduct is lawful – so-called safe harbours. Both safe harbours and presumptions of illegality can be absolute or rebuttable, depending on whether evidence against it can be brought by either the parties or the enforcing agency.

In December 2017, the OECD will hold a discussion to explore the nature and suitability of rules (i.e. safe harbours and presumptions of illegality) and standards (i.e. detailed market analyses) in competition law. This debate will not focus on whether rules or standards should be adopted, but rather on how precisely to structure the relevant legal tests – touching on topics such as whether legal presumptions should be adopted, how the burden of proof should be allocated, what role should potential efficiencies play in a market assessment, among others. ‌

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Abuse of dominance and monopolisation

Cartels and anti-competitive agreements

Prosecution and law enforcement



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