This presentation by Federica Maiorano and Pedro Caro de Sousa from the OECD Competition Division was made during the discussion “Safe harbours and legal presumptions in competition law” held at the 128th meeting of the OECD Competition Committee on 5 December 2017. More papers and presentations on the topic can be found out at oe.cd/21v.

1. Safe Harbours
and Legal Presumptions
Federica Maiorano / Pedro Caro de Sousa
DAF / Competition Division, OECD
Paris, 5 December 2017

2. • No previous work at OECD on Competition Rule Design
– But Topic Important (and Implicit) in many Roundtables / Hearings
• Theoretical Framework Already Available
• Decision Theory / Error Cost Theory
• Administrability of Competition Law
• Theory Applies to Different Types of Rules
– Substantive Rules (Per Se / Object, Safe Harbours, Economic
Analysis)
– Evidentiary Rules (Presumptions, Burden of Proof)
Background
2

3. • Historical Trend – From Bright-Line Rules to Standards
• Decision Theory and Its Application to Competition Law
– Trade-Off between Accuracy and Administrability
– Enforcement bodies are resource-constrained
• When and Why Should Rules be Adopted
– Different Types of Rules
• Substantive v. Evidentiary
• Absolute v. Conditional
– Less Stringent Requirements for Safe Harbours?
Structure of Paper
3

4. • Are certain types of rules better suited to deal with certain
topics?
• Does enforcement capacity influence rule design?
• How can we integrate practical experience and theoretical
insights?
Seemingly theoretical questions
– with important practical implications
Questions
4

5. Thank you for your attention!
Contact: pedro.carodesousa@oecd.org / federica,maiorano@oecd.org
More on the OECD’s work: http://www.oecd.org/daf/competition/