The present thesis deals with the application of European Community (EC)1 Competition Law by the competent Communitarian institutions, namely the Commission, the Court of First Instance and the European Court of Justice. Because the discussion will concern its application to non-European legal entities, one explanatory remark is necessary. Dealing with the application of Competition Law with regard to non-European corporations is not meant to suggest that any form of discrimination based on nationality exists. As former Commissioner Sir Leon Brittan commented with regard to one of the early cases involving non-EC companies, “the location of a party’s incorporation or headquarters is immaterial for Competition Law” ,2 which must focus on impact on markets. One necessary goal of this thesis then will be the assessment of the EC’s treatment of these cases. A legal entity’s non-European nationality must not be confused with the lack of links to the EC, as the presence of an established (not necessarily incorporated) branch or subsidiary within the EC will suffice to determine the ordinary - that is territorial - application of EC law. Instead, the focus will be on cases that would require extraterritorial application of the law: As it will be discussed, the Court of Justice has never formally endorsed the principle of extraterritorial jurisdiction,3 so that it will be necessary to discover how the EC deals with cases that have no links that could trigger the territoriality principle. Another purpose of this thesis will be to search into the ramifications of the transnational structure of certain corporations. In fact, while these may be affected by the peculiarities of EC Competition Law, they may be able to affect a market in Europe through their dominance of another market elsewhere. Based on the assumption that the legal standards cannot and will not vary simply depending on the nationality of the entities that are subject to the EC’s sovereignty, a case-oriented analysis will be made to uncover the general orientations, if any, followed by the Communitarian institutions in the application of Competition Law to non-EC firms. However, while Mr. Brittan’s argument can be said to hold true, it must also be noted that EC law is no exception to one basic principle, that is the territorial nature of the law. The law is the expression of one sovereign power which has territorially limited extension and its application to entities or situations that have no territorial links to its territory deserves special treatment.
Cavicchioli, Federico, "The Application of EC Competition Law to Non-European (U.S.) Corporations" (2000). LLM Theses and Essays. 8.