Category Archives: EU Law & Policy

A Tale of Legal Contortions: The Extraterritorial Application of EU Competition Law in the Global Economy: Conclusion (5/5)

This is the conclusion of a series of blog posts on the topic of the unilateral application of EU Competition Law beyond the confines of EU territory.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

As we have seen, the European Courts have adopted various legal contortions in order to maintain a legal fiction that foreign agreements and conduct are actually European, thus denying their ‘extra-‘ territoriality.

The ECJ has, therefore, largely avoided dealing with the issue of extraterritoriality under public international law, moving from a relatively strict territorial approach, as seen in the ‘economic entity’ doctrine, to a looser interpretation of territoriality as can be seen in the ‘implementation’ criterion. The same cannot be said of the Commission, which has unambiguously embraced the effects doctrine in a number of its decisions. These contrasting approaches are quite telling of the institutional power dynamics within the EU.

The ‘economic entity’ or ‘implementation’ doctrines will be sufficient to deal with most situations, although some rare cases may well fall through the EU’s jurisdictional net. Indeed, the situation under the paradigm market access case remains unsure, and these will not be sufficient in the case of a remote cartel surcharge via a bona fide intermediary. Should these scenarios arise it is posited that, in light of its previous case-law, the ECJ is likely to simply relabel any qualified effects as ‘implementation’1. The most significant obstacle will, therefore, remain the practicalities of exercising enforcement jurisdiction beyond the coercive powers of the EU territory.

We have seen that the Merger Regulation gives the EU unprecedented power to control mergers between foreign firms. It is precisely the ‘long-arm’ of the Merger Regulation, and its controversial quantitative thresholds, which prompted the CFI to justify its jurisdiction, in addition to the implementation criterion, under the qualified effects doctrine. Furthermore, we have seen that the courts do not see negative comity as restraining these powers, relegating this issue to prosecutorial discretion or the remedy stage, unless the conduct is compelled by the foreign state.

Despite the limitations outlined above, and the proliferation of bilateral agreements and attempts at international harmonisation, the unilateral extraterritorial application of competition rules undoubtedly remains the most important weapon in the arsenal of EU competition law enforcers2.

  1. Van Bael & Bellis (firm), Competition law of the European Community (5th ed. Kluwer Law International 2010) at 276; Florian Wagner von Papp, ‘Competition Law, Extraterritoriality & Bilateral Agreements’ [2012] at 31 [↩]
  2. Ibid. at 3; Alexander Layton and Angharad M Parry, ‘Extraterritorial Jurisdiction – European Responses’ [2004] 26 Houston Journal of International Law at 325 [↩]

A Tale of Legal Contortions: The Regulation of Mergers: unlimited extraterritorial jurisdiction (4/5)

This is part IV of a series of blog posts on the topic of the unilateral application of EU Competition Law beyond the confines of EU territory.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

Council Regulation 139/20041 applies to concentrations which have a ‘Community dimension’2. This will be the case when certain thresholds, relating to turnover worldwide and EU-wide, are met3). Once a concentration falls under this Regulation it will need to pre-notify the Commission (or face penalties4 ), so that the Commission may consider the compatibility of the proposed concentration with the internal market5.

It is clear that this approach will catch foreign undertakings which carry out only minimal activities within the EU, as well as certain entirely foreign-to-foreign concentrations6. This raises the question of whether, under international law, all the concentrations which meet these thresholds have a sufficient nexus to the EU to justify an assertion of jurisdiction?7

A. Gencor: the recognition of the effects doctrine under international law

In Gencor-Lonhro8, a proposed concentration, between the South-African interests of two undertakings, was deemed incompatible with the internal market as it would lead to a duopoly in the world platinum market. The Commission’s assertion of jurisdiction was challenged before the Court of First Instance on two grounds: (i) the territorial scope of the MCR9 and (ii) compatibility with public international law10.

The Court, besides holding that the quantitative thresholds of the MCR did not require undertakings to be registered or to produce in the Community, clarified that the implementation criterion, in merger cases, may be satisfied by ‘mere sales’11. This makes for an ineffective jurisdictional safeguard12, as any undertaking meeting the turnover thresholds will automatically be found to satisfy the implementation criterion13.

Furthermore, in light of the jurisdictional sensitivities involved14, it went on to justify its decision under international law, holding that the MCR may be applied extraterritorially under international law where a proposed merger will have an ‘immediate, substantial and foreseeable effect’ on the internal market15 (which it found in this case). When the quantitative thresholds are met, it is likely that immediate and substantial effect will be foreseeable in the EU. This will, however, not be automatic16. Indeed, in Gencor this required careful factual examination by the Court17.

B. The notification problem

We are then left with an uneasy situation under which concentrations, which have a Community dimension, must be notified to the Commission, under the threat of fines, even though they may not have an effect on the EU market structure18.

The Commission has sought to address this jurisdictional problem through the simplified notification procedure introduced for full-function joint ventures19), which have little or no impact on the EU market. This may prove too limited in scope, as can be seen in the Samsung case20, where non-notification was sanctioned by fines, even though there were no EU competition concerns raised21.

The Community dimension as a jurisdictional tool is a brute instrument, which, as Ezrachi convincingly argues22, has significant added costs for non EU undertakings. As such, a jurisdictional test based on economic analysis and not political compromise as to competence between Member States and the EU would be a welcome development23.

C. A limited role for negative comity

Neither the Commission nor the courts have shown any particular interest in adopting a doctrine of international comity (or ‘reciprocal courtesy’)24. In Gencor, the Court held that there is no conflict of jurisdiction where one state prohibits conduct and the other allows it,

but does not require it (as was the case with the merger)25. A similar response was given in Woodpulp, where the ECJ was faced with an export cartel which was legal under the Webb-Pomerene Act in the United States26.

The Boeing/McDonnell Douglas27 case makes it clear that the Commission will, nevertheless, take into account international comity when reviewing and formulating remedies. In this instance, the Commission agreed to exclude from further review the military operations of these undertakings28.

In GE/Honeywell (General Electric/Honeywell, Case No COMP/M. 2220 [2004] OJ L48/1)) , the Commission prohibited what would have been the biggest merger in US history. This provides us with an interesting illustration of the consequences of competing authorities asserting jurisdiction over the same matter29.

The comity analysis, therefore, seems to be extremely limited and will hardly prove to be a restraint in practice. It may be better formulated as a matter of prosecutorial discretion rather than a legal prerequisite for the assertion of jurisdiction30. I would argue that this reasoning is a logical necessity in light of the EU’s approach of attempting to bring extra- territorial matters within its territorial jurisdiction31.

  1. Council Regulation 139/2004 [↩]
  2. Ibid. article 1 [↩]
  3. Ibid. article 1(2) and 1(3 [↩]
  4. Ibid. article 14 [↩]
  5. Ibid. article 2 [↩]
  6. Ibid. Recital 10; Mark Furse (ed), Butterworths Competition Law Service/Division XII Extra-territoriality [2011] at [133] [↩]
  7. Florian Wagner von Papp, ‘Competition Law, Extraterritoriality & Bilateral Agreements’ [2012] at 31 [↩]
  8. Gencor Ltd v Commission Case T-102/96, [1999] ECR II-753 [↩]
  9. Ibid. at [78]-[88] [↩]
  10. Ibid. at [89]-[111] [↩]
  11. Ibid. at [87] [↩]
  12. Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 116 [↩]
  13. Ariel Ezrachi, ‘Limitations on the extraterritorial reach of the European Merger Regulation’ [2001] 22 European Competition Law Review at 138 [↩]
  14. Christopher Bellamy, European Community Law of Competition (5th ed. Sweet & Maxwell 2001) at [2.157] [↩]
  15. Gencor Ltd v Commission Case T-102/96, [1999] ECR II-753 at [90] [↩]
  16. Ariel Ezrachi, ‘Limitations on the extraterritorial reach of the European Merger Regulation’ [2001] 22 European Competition Law Review at 138 [↩]
  17. Gencor Ltd v Commission Case T-102/96, [1999] ECR II-753 at [92]-[101]; Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 117 [↩]

  18. Andre R Fiebig, ‘International law limits on the extraterritorial application of the European Merger Control Regulation and suggestions for reform’ [1998] 19 European Competition Law Review 324; Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 116-117 [↩]

  19. Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) 139/2004; (2005) OJ C 56/4, art 5(a [↩]
  20. Samsung Case No IV/M.920 [1998] CMLR 494 [↩]
  21. Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 117 [↩]
  22. Ariel Ezrachi, ‘Limitations on the extraterritorial reach of the European Merger Regulation’ [2001] 22 European Competition Law Review at 138-139 [↩]
  23. Jacques HJ Bourgeois, ‘EEC Control Over International Mergers’ [1990] Yearbook of European Law at 103 [↩]
  24. Aluminium Imports from Eastern Europe [1985] OJ L92/1, [1987] 3 CMLR 813; Contra: 1986 OECD recommendation for Extraterritorial application of competition law [↩]
  25. Gencor Ltd v Commission Case T-102/96, [1999] ECR II-753 at [106] [↩]
  26. A Ahlström Oy v EC Commission Case 89/85 [1988] 4 CMLR 901 at [22]; Joseph Griffin, ‘Extraterritoriality in US and EU Antitrust Enforcement’ [1999] 67 Antitrust Law Journal at 179 [↩]
  27. Boeing/McDonell Douglas IV/M877 [1997] OJ L/336/16 [↩]
  28. Andre R Fiebig, ‘International law limits on the extraterritorial application of the European Merger Control Regulation and suggestions for reform’ [1998] 19 European Competition Law Review at 323 [↩]
  29. Alison Jones and Brenda Sufrin, EU Competition Law (4th ed, Oxford University Press 2010) at 1255 [↩]
  30. Van Bael & Bellis (firm), Competition law of the European Community (5th ed. Kluwer Law International 2010) at 140 [↩]
  31. William Sugden, ‘Global Antitrust and the Evolution of an International Standard’ [2002] 35 Vanderbilt Journal of Transnational Law at 1015 [↩]

A Tale of Legal Contortions: Articles 101 and 102: from ‘economic entity’ to ‘implementation’ (3/5)

This is part III of a series of blog posts on the topic of the unilateral application of EU Competition Law beyond the confines of EU territory.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

Articles 101 and 102 TFEU have a wide territorial ambit as they apply insofar as an agreement or conduct has a direct or indirect, actual or potential, appreciable effect on intra-state trade. They do, however, remain silent as to the matter of their extra-territorial scope15. Unsurprisingly, this has proven to be a ‘controversial question’1.

A) The single economic doctrine: a stop-gap solution?

In Dyestuffs, the Commission, investigating alleged price fixing amongst three non-EEC producers of dyes, relied upon the effects doctrine, holding that its jurisdiction could be based on the effects of the concerted practice in the EEC2. One of the undertakings appealed the decision. The Commission, in its reply, relied not only on the effects doctrine but also on the claim that the EEC subsidiaries were ‘mere extensions’ of the foreign undertaking3.

Advocate General Mayras recommended the adoption of the effects doctrine in cases where the restriction of competition was ‘direct, substantial and foreseeable’4. The ECJ was silent on the AG’s application of this qualified effects doctrine. Instead, it considered the EEC subsidiaries as part of a single economic entity under the control of their parent companies5.

This doctrine is now well established and has been frequently relied upon by both the ECJ and the Commission6. It does, however, present a considerable limitation, as it may only arise if the foreign undertaking has a subsidiary in the internal market7.

It has been posited that, faced with two options, the ECJ simply adopted the least controversial, and that by not disapproving of the effect doctrine it tacitly encouraged the Commission to rely on it. Commentators have been critical of the fact that the test looks at whether the parent was able to control the subsidiary, not whether it actually did so8, and that this doctrine disregards the characterisation of the subsidiary as a separate legal entity9.

B. ‘Implementation’: a sui generis criterion

Wood Pulp involved alleged price-fixing in the wood pulp industry, in which all producers were incorporated outside of the EC, but nevertheless had some form of presence within the EC10. Upon appeal, AG Darmon, echoing Mayras’ position, recommended that the Community should adopt a qualified effects based approach to jurisdiction11.

The ECJ, cleaving to the territoriality principle, adopted an ‘implementation’ test – according to which the decisive factor was not where the agreement was formed, but where it was implemented12. The location of the parties, or where the agreement was made, was, therefore, immaterial13.

The court made it clear that direct sales into the internal market are sufficient to trigger the implementation test, regardless of the lack of recourse to marketing or sales organisations within the EC14. Certain commentators have, whilst accepting the concept of implementation, criticised the court’s finding on the basis that there is not a sufficient nexus for direct sales to fall under the territoriality principle15.

C) ‘Implementation’ vs effects

Is ‘implementation’ merely an ‘effects doctrine in disguise’16, or are there substantive limitations involved in the reliance on ‘implementation’? At first sight, the test seems analogous to the effects doctrine insofar as where an agreement is implemented in the EU, it clearly has an effect there17 – although the reverse will not necessarily be true.

What of a collective refusal to supply customers within the EU by foreign undertakings? It has been argued that ‘implementation’ could include such negative conduct18. The preponderant view does, however, seem to be that this would not be covered by the ‘implementation’ criterion19, whereas it would be covered under the effects doctrine20.

Similarly, let us consider a cartel which is formed outside the EU by non-EU producers of a raw material, which is then processed outside the EU by an unaffiliated and bona fide non-EU intermediary21. This cartel surcharge would result in higher prices within the EU, yet it is hard to see how this original cartel can be said to be ‘implemented’ (as a result of remoteness), whereas this would certainly be ‘direct and produce effects’ within the EU22.

The Commission’s Guidelines on ‘the effect on trade concept’23 unambiguously state that articles 101 and 102 may be applied extraterritorially, provided the conduct or agreement produce effects inside the EU24. These guidelines, whilst being a non-regulatory document, provide welcome guidance as to what constitutes an ‘effect’ and can be taken as a clear endorsement of the effects doctrine by the Commission25.

As such, if confronted with one of the above scenarios it is likely that the Commission would simply rely on the effects criterion26, as it has previously done, yet how the ECJ would respond remains an open question.

D. Enforcement as a limiting factor

Besides the question of prescriptive jurisdiction, the practical matter of enforcement must be considered. Once one goes beyond the ‘economic entity’ doctrine, and, therefore, beyond the powers of coercion of the EU territory, enforcement becomes a factor inhibiting assertions of jurisdiction27.

Indeed, attempting to recover a fine outside of the EU would be “the exercise of power… in the territory of another State”28 which is prohibited under international law and was recognised as so by the AGs in ICI and Wood Pulp29. Nevertheless, one may posit that few undertakings will be willing to forfeit access to the EU market, which may be “too big to give up”((Chie Sato, ‘Extraterritorial Application of Competition Law – Is It Possible for Japanese Companies to Steer Clear of EU Competition Law?’ [2010] 11 Keio Journal of Political Science and Sociology at 40; Robert Lane, EC Competition Law (Longman 2001) at 290)). Perhaps the biggest obstacle lies in the Commission’s ability to investigate30 and serve decisions31, for which it will have to rely on the assistance of the third party State32.

  1. Mark Furse (ed), Butterworths Competition Law Service/Division XII Extra-territoriality [2011] at [116] [↩]
  2. Commission Decision 69/243/EEC [1969] OJ L 195/11 [↩]
  3. Richard Wish, Competition Law (6th ed. Oxford University Press 2008) – Chapter 12: The International Dimension of Competition Law – at [12.27] [↩]
  4. ICI Ltd EC Commission (‘Dyestuffs’) Case 48/69 [1972] ECR 619 at 696 [↩]
  5. Ibid. at [130]-[140]; Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 110 [↩]
  6. For eg. Continental Can Co Inc [1972] CMLR D11; Commercial Solvents [1974] ECR 223 [↩]
  7. Leigh Davison and Debra Johnson, ‘The EU’s Evolving Stance on the International Dimension of Competition Policy: A Critical Commentary’ [2002] 37 Intereconomics at 250 [↩]
  8. Joanna Goyder and Albertina Albors-Llorens, Goyder’s EC Competition Law (5th ed, Oxford University Press 2008) at 582; Acevedo, ‘The EC Dyestuffs Case: Territorial Jurisdiction’ [1973] 36 MLR at 317 [↩]
  9. Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 111 [↩]
  10. Alison Jones and Brenda Sufrin, EU Competition Law (4th ed, Oxford University Press 2010) at 1243 [↩]
  11. A Ahlström Oy v EC Commission Case 89/85 [1988] 4 CMLR 901 at 923 [↩]
  12. Ibid. at [16] [↩]
  13. Christopher Bellamy, European Community Law of Competition (5th ed. Sweet & Maxwell 2001) at [2.156] [↩]
  14. A Ahlström Oy v EC Commission Case 89/85 [1988] 4 CMLR 901 at [17]; Robert Lane, EC Competition Law (Longman 2001) at 285 [↩]
  15. Walter Van Gerven, ‘EC Jurisdiction in Antitrust Matters: The Wood Pulp Judgement’ [1989] Annual Proceedings of the Fordham Corporate Law Institute at 470 [↩]
  16. Jurgen Basedow, ‘International Antitrust: From Extraterritorial Application to Harmonization’ [2000] 60 Louisiana Law Review at 1040 [↩]
  17. Leigh Davison and Debra Johnson, ‘The EU’s Evolving Stance on the International Dimension of Competition Policy: A Critical Commentary’ [2002] 37 Intereconomics at 250 [↩]
  18. Jose Perez Santos, ‘The Territorial Scope of Article 85 of the EEC Treaty’ [1989] Annual Proceedings of the Fordham Corporate Law Institute at 571; Florian Wagner von Papp, ‘Competition Law, Extraterritoriality & Bilateral Agreements’ [2012] at 29 [↩]
  19. See Gencor Ltd v EC Commission [1999] 4 CMLR 971 at [87]; Walter Van Gerven, ‘EC Jurisdiction in Antitrust Matters: The Wood Pulp Judgement’ [1989] Annual Proceedings of the Fordham Corporate Law Institute at 451 [↩]
  20. Furse M, Butterworths Competition Law Service/Division XII Extra-territoriality [2011] at [120] [↩]
  21. Robert Lane, EC Competition Law (Longman 2001) at 288 [↩]
  22. Florian Wagner von Papp, ‘Competition Law, Extraterritoriality & Bilateral Agreements’ [2012] at 29 [↩]
  23. Guidelines on the effect on trade concept contained in Article 81 and 82 of the Treaty (2004/C 101/07), OJ C 101/81, para. 37-43 [↩]
  24. Ibid. paras 100-101 [↩]
  25. Chris Noonan; Chie Sato, ‘Extraterritorial Application of Competition Law – Is It Possible for Japanese Companies to Steer Clear of EU Competition Law?’ [2010] 11 Keio Journal of Political Science and Sociology at 39 [↩]
  26. Joseph Griffin, ‘Extraterritoriality in US and EU Antitrust Enforcement’ [1999] 67 Antitrust Law Journal at 187 [↩]
  27. Robert Lane, EC Competition Law (Longman 2001) at 289 [↩]
  28. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 at 18 [↩]
  29. Brenda Sufrin, ‘Competition in a Globalised Marketplace: Beyond Jurisdiction’ in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds), Asserting Jurisdiction (Hart Publishing 2003) at 111; Mark Furse (ed), Butterworths Competition Law Service/Division XII Extra-territoriality [2011] <www.lexisnexis.com/uk/legal/> at [128] [↩]
  30. Articles 18 and 20 of Regulation 1/2003; articles 11 and 13 of Regulation 139/2004 [↩]
  31. But see: Europemballage and Continental Can v Commission Case 6/72 [1973] CMLR 199 [↩]
  32. Van Bael & Bellis (firm), Competition law of the European Community (5th ed. Kluwer Law International 2010) at 135 [↩]

A Tale of Legal Contortions: The concept of extraterritoriality: bases of jurisdiction and the effects doctrine (2/5)

This is the part II to a series of blog posts on the topic of the unilateral application of EU Competition Law beyond the confines of EU territory.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

A state’s, and by analogy the EU’s1, ability to apply its competition laws extraterritorially is governed by public international law2. Accordingly, a state has the power to make laws governing conduct within its territory (the territoriality principle3 ), as well as to regulate the conduct of its citizens and undertakings abroad (the nationality principle4 ). Objective territoriality recognises the State’s jurisdiction where the infringing conduct originates abroad but is then completed or implemented within the State’s territory5.

Applying the latter principle to competition law, especially if based solely on the effect of an agreement or conduct which has not been committed within the territory of the state asserting jurisdiction, has proven extremely controversial6 ).

It has long been the position of the United States7 that their competition rules may be applied where foreign conduct is show to have an effect on US commerce8 ).

This has led a number of countries, including the United Kingdom9 ), to pass ‘blocking statutes’ which attempt to counter excessive assertions of jurisdiction10.The EU institutional response towards extra-territorial applications of US laws can be said to be equally hostile11. As a result of this viewpoint, the EU institutions have had to find more palatable justifications for addressing the anti-competitive conduct of foreign undertakings which have an effect within the EU12.

  1. Reparations for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174; article 47 Treaty on European Union; Case 22/70 Commission v Council (ERTA) [1971] ECR 263; Robert Lane, EC Competition Law (Longman 2001) at 278 [↩]
  2. Richard Wish, Competition Law (6th ed. Oxford University Press 2008) – Chapter 12: The International Dimension of Competition Law – at [12.4] [↩]
  3. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10; Robert Lane, EC Competition Law (Longman 2001) at 179 [↩]
  4. Andre R Fiebig, ‘International law limits on the extraterritorial application of the European Merger Control Regulation and suggestions for reform’ [1998] 19 European Competition Law Review 326 [↩]
  5. Ibid. [↩]
  6. Joseph Griffin, ‘Foreign Governmental Reactions to US Assertions of Extraterritorial Jurisdiction’ [1998] George Mason Law Review 505 [↩]
  7. United States v Alcoa, [1945] 148 F.2d 416 (2d Cir.); Hartford Fire Insurance Co. v California [1993] 113 S.Ct. 2891 [↩]
  8. See now: 15 U.S.C. § 6(a)(1) (conduct involving trade or commerce with foreign nations [↩]
  9. See now: 15 U.S.C. § 6(a)(1) (conduct involving trade or commerce with foreign nations [↩]
  10. Mark Furse (ed), Butterworths Competition Law Service/Division XII Extra-territoriality [2011] at [363]; Joseph Griffin, ‘Foreign Governmental Reactions to US Assertions of Extraterritorial Jurisdiction’ [1998] George Mason Law Review at 506 [↩]
  11. For eg. Council Regulation (EC) No 2271/96; Alexander Layton and Angharad M Parry, ‘Extraterritorial Jurisdiction – European Responses’ [2004] 26 Houston Journal of International Law 315 [↩]
  12. Joanna Goyder and Albertina Albors-Llorens, Goyder’s EC Competition Law (5th ed, Oxford University Press 2008) at 581; Richard Wish, Competition Law (6th ed. Oxford University Press 2008) – Chapter 12: The International Dimension of Competition Law – at [12.5] [↩]

A Tale of Legal Contortions: The Extraterritorial Application of EU Competition Law in the Global Economy (1/5)

This is the introduction to a series of blog posts on the topic of the unilateral application of EU Competition Law beyond the confines of EU territory.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

“The picture before us is that of an international society made up of adjacent cells, separated by frontiers; the concept of territory… illustrates that division between separate entities by physical and geographical boundaries. But it is clear… that frontiers are not only barriers, but also crossing points and economic life makes light of such barriers.”1

In these posts, I shall argue that the European Courts have, unlike the Commission, for the most part, been cautious in dealing with extraterritoriality, devising various tests with the aim of bringing offending foreign conduct within the purview of EU law. This concern explains their reluctance to rely on contentious interpretations of international law, such as the effects doctrine, in favour of more ‘European’ principles, such as the implementation criterion and economic entity doctrine.

In examining the ways in which the EU has been able to surmount the limitations of its territorial jurisdiction in order to address conduct by foreign entities which have an impact on the internal market, I will focus on the unilateral application of EU competition law extraterritorially, as opposed to other methods such as bilateral cooperation and multilateralism, which are beyond the scope of this essay.

To do so, I shall first briefly outline the bases for assertions of jurisdiction under public international law (part II). I shall then analyse the evolving bases used for the extraterritorial application of articles 101 and 102 (part III), before evaluating whether the implementation criterion is a sufficient base of jurisdiction, and reviewing the practical limitations of enforcement. I will then turn to the Merger Regulation and consider its controversial quantitative jurisdictional test (part IV), before examining whether negative comity has constrained the EU’s extraterritorial application of competition rules.

  1. Professor Prosper Weil, L’application extraterritoriale du droit économique (Montchrestien 1987) at 11 – quoted by Advocate General Darmon in A. Ahlström Osakeyhtiö and others v Commission (‘Woodpulp’) [1988] European Court Reports 5193 at [47] [↩]

Pre-Contractual Duties of Information in English & French law and the Consumer Rights Directive: Conclusion (5/5)

This is the conclusion of my series of blog posts on the topic of pre-contractual duties of information in English, French and EU contract law.

Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion

As we have seen, there is a certain level of convergence between French and English law with regards to false representations inducing a party to enter into a contract. This pre-contractual information duty to not mislead relies on different concepts but produces broadly similar outcomes.

The chasm occurs when one turns to positive duties to provide information. English law still largely abides by contractual freedom and, accordingly, does not recognise any broad doctrine of contractual behaviour involving a positive duty of information at the pre-contractual stage. There has, nonetheless, been a move towards a dynamic market individualistic approach and, therefore, some intervention, notably on consumer grounds, has been accepted. French law, by contrast, has developed an obligation d’information based on the concept of good faith in contracting. This is a remarkable collaborative framework which attempts to put weaker parties on a more equal footing by ensuring they possess all the facts which may influence their decision to contract1.

Reconciling these differences is a considerable challenge, especially when attempting to draw up common European principles of disclosure. It is interesting to note that article 4:107 of the Principles of European Contract Law, relating to disclosure, clearly endorses the French and civil law approach. Yet in doing so, it envisages that the question of whether a duty to disclose exists will rest upon, inter alia, not only the expertise of the party and the importance of the information to the other party, but also the cost of acquiring such information and whether the other party should have reasonably been able to acquire it by himself2. As Gilliker convincingly argues, this represents “a merger of common and civil law concerns”3 and paves the way for a potential compromise.

Common principles will, however, be meaningless if national courts are unable to transcend their dogmatic context and develop a consistent interpretation of these4. As such, one may wish for strong external intervention, perhaps from the European Court of Justice which could, perhaps, be accompanied with a focus on an economic perspective analogous to that adopted in EU competition law5.

This prospect appears fanciful when one considers the Consumer Rights Directive, which, as we have seen, is disappointing in its lack of ambition. Given the limited scope of maximum harmonisation, traders targeting consumers in other EU countries will still be faced with multiple standards of information duties, especially those falling under the umbrella of ‘general concepts of contract law’6. As a result of article 6 of the Rome I Regulation7, these traders will not be in a position to exclude these national information duties.

Therefore, the limited scope of the changes introduced by the Consumer Rights Directive can only increase the pressing need for a Common European Sales Law. This would, in the absence of a fully fledged European contract law, provide us with an optional instrument, that would be classified as a ‘second national regime’ under the Rome I Regulation8, and thus finally bring about a uniform trading platform for business and consumers throughout Europe.9

  1. Pierre Legrand Jr, ‘Information in formation of contracts: a civilian perspective’ [1991] 19 Canadian Business Law Journal at 336 [↩]
  2. 4:107(3);  See also: Draft Common Frame of Reference, article II.–7:205 [↩]
  3. Paula Gilicker, ‘Regulating Contracting Behaviour: The Duty to Disclose in English and French Law’ [2005] 5 European Review of Private Law at 636 [↩]
  4. Ibid. at 639 [↩]
  5. See for eg. Simon Bishop and Mike Walker, The economics of EC competition law : concepts, application and measurement (3rd ed. Sweet & Maxwell 2010); Kim Lane Scheppele, Legal secrets : equality and efficiency in the common law (University of Chicago Press 1988) [↩]
  6. Peter Rott, ‘Information obligations and withdrawal rights’ in Christian Twigg-Flesner (ed.), The Cambridge Companion to European Union Private Law (Cambridge University Press 2010) at 200 [↩]
  7. Rome I Regulation’ – Regulation 593/2008/EC of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [↩]
  8. Martijn Hesselink, ‘How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation’ [2012] 1 European Review of Private Law at 195 [↩]
  9. Ewoud Hondius, ‘The Proposal for a Directive on Consumer Rights: The Emperor’s New Clothes’, [2011] 2 European Review of Private Law at 164; Christoph Busch and Ronny Domröse, From a Horizontal Instrument to a Common European Sales Law: The Development of European Consumer and Market Law in 2011 [2012] 1 Journal of European Consumer and Market Law at 50 [↩]