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’. 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 enforcers.