International competition law: extraterritoriality matters, conflicts of decisions

Extraits

[...] If we take into consideration the place of formation it would be easy to escape the prohibition. For example: organize a cartel abroad, outside the EU with an effect on the EU. The principle of noninterference: discussion about the international comity principle. The argument was that in the US there is a rule, the Webb Pomerene Act that exempts export cartels. In the US, export cartels are not void nor illegal, so you cannot sanction undertakings in the EU because of the comity principle. [...]

[...] According to the doctrine, the American judge is not supposed to take this into account, only the effect matters. It's a unilateral principle and one of the circuit court in the US decided to reject this doctrine to take into account the interest of other parties. Several states in the US have adopted blockings statutes limiting the extraterritorial antitrust laws. They tried to temper the harsh ruling of Alcoa by balancing the interest of the US in regulating anticompetitive activities against the legitimate sovereignty interests of the nation. [...]

[...] When EU prosecuted the producers, they said once it is outside the EU, they do not have jurisdiction to sue these undertakings. The answer given by the Court of Justice is: “It should be observed that an infringement of Article 85, such as the conclusion of an agreement which has had the effect of restricting competition within the common market, consists of conduct made up of two elements, the formation of the agreement, decision or concerted practice and the implementation thereof. [...]

[...] International competition law: extraterritoriality matters, conflicts of decisions We will talk about extraterritoriality matters and conflicts of decisions. I. Extraterritoriality matters One criterion in Europe: effect doctrine. Competition rules exist on the European scale, but we don't have a worldwide competition law. In the past, the WTO tried to set up a worldwide code with antitrust rules: the Munich Group. It was hard to reach an agreement between countries, mostly for the US and African countries. The first problem for the US to refuse: - the American rules are supposed to be the best one in regards competition law. [...]

[...] Under anti-trust law, there are two methods to assess conduct of a firm: - Per se rule: something is illegal by nature, it prohibits the conduct in itself. For example: when you impose a resale price to the distributor, for a long time this kind of practices was illegal per se. - Rule of reason: it is a more balanced approach where the authority will balance the anti-competitive effects with the pro-competitive effects. For example: In a vertical agreement, it has pro-competitive effects and also anti-competitive effects, the competition agencies are going to balance the two to determine whether it's legal or illegal. [...]