Abstract
In the preliminary observations to this study we have noted that a particular aspect of the general legal competence of State jurisdiction under international law is concerned with enforcement jurisdiction. See 1–16. The rule in that respect is that even when a State has jurisdiction to prescribe rules, such jurisdiction does not give it the right to engage in extraterritorial enforcement of its rules in the territory of another State.1 Extraterritorial enforcement is generally regarded as a violation of international law, except in certain limited situations (e.g. enforcement action on a vessel of one State in the territorial waters of another), unless the territorial State consents.2 The limits on enforcement jurisdiction are concerned both with the exercise of physical force in the territory of another State and with the peaceful performance of acts of authority therein, e.g. whether police investigations and search may be mounted, orders for production of documents may be exercised, summons may be served, orders may compel an action abroad and persons may be arrested in the territory of another State.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
See Jennings “General Course on Principles of International Law” 121 Recueil (1967-II) p.522; Mann, the Doctrine of Jurisdiction in International Law“ 111 Recueil (1964-I) p.13.
See Oppenheim, International Law vol. 1, 327–328 (8th ed., Lautherpacht, 1963): Research in International Law Under the Auspices of the Harvard Law School, Jurisdiction With Respect to Crime 29 Am. J. Int. L. Supp. 435 et seq (1935). The scope of the concept of State’s consent or the question whether it has been granted, by implication may leave room for controversy.
See Cheshire’s Private International Law 77 (9th ed.,North, 1974).
In accordance with the wide definition of the term “enterprise” in Arts. 85 and 86 (see 1–29) the question of service of process holds true for natural persons and legal entities alike.
For detailed discussions of the Commission’s procedure in antitrust matters see the following articles: Graupner “Commission Decision-Making on Competition Questions ”10 C.M.L.Rèv.291 (1973); Temple-Lang “The Procedure of the Commission in Competition Cases” 14 C.M.L.Rev. 155 (1977).
On commencement of the Commission’s procedure the national cartel authorities lose jurisdiction over the alleged Treaty infringement; see case 127/73 Belgische Radio en Televisie (BRT) and Société Belge des Auteurs Compositeurs et rditeurs v. SV SABAM and NV Fonior [1974] E.C.R. 51.
See Case 48/72, Brasserie de Haecht S.A. v. Wilkin (No.2)[1973]E.C.R.77.
The Commission is obliged to hold an oral hearing if it proposes to impose a fine or periodic penalty payment (Art. 7(1) or Reg.99/63).
See Rules of Procedure of the Court of Justice, adopted on 4th December, 0.J. 1974, L 350/1 (hereinafter cited as “Rules of Procedure”).
See Geigy Case submissions and arguments of the parties, 805; I.C.I. Case opinion of the Advocate-General, 669. It has to be mentioned again that the issues of fact and of law and the grounds of judgment in the Geigy Case are similar to those in the Sandoz Case (concerning another Swiss company involved in the affair).-
It has been confirmed in a private communication with the Head of Inspection Division at the Directorate-General for Competition, Mr. A. Pappalardo,(in 2.10.79) that this is the current practice of the Commission.
Dyestuffs Decision D33, at para. 29; see also I.C.I. Case, submission and arguments of the parties 635. The Court had found service to the “internal sphere” of the addressee proper in Case 8/56, A.L.M.A. v. High Authority [1957] 3 Rec. 179 (a matter in the context of the E.C.S.C. Treaty) but see argument of the applicant in the Geigy Case (pp.802–803) that according to the A.L.M.A. judgment due process reaches the internal structure of the addressee upon duly reaching the registered office of the enterprise in question and not of its subsidiary.
See Continental Can Case issues of fact and of law, 220. However, the decision as published in the Official Journal was addressed to Continental Can Company Inc. of New York.
Compare Koppensteiner, “International Enterprises Under the Antitrust Law of the European Economic Community” 9 J.W.T.L. 316–317 (1975).
In the Geigy Case (submissions and arguments of the parties 802) the Commission stressed that the principle of service to a subsidiary established in the Common Market, on behalf of its non-Community parent company, must also apply to the notification of measures during the course of purely administrative procedure.
Geigy Case submissions and arguments of the parties,802. The Commission interpreted the A.L.M.A. judgment (see note 30) as expressing such a’ view.
Cf. Kruithof “The Applicability of the Common Market Antitrust Provisions to International Restraints of Trade” 2 C.M.L.Fb 92 (1964). The writer also anticipates such a development in the approach of the Community authorities in the future.
In the Community legal system there is, therefore, no need for an additional requirement of “venue”.
See the Transocean Marine Paint Association Case 1080.
See Temple-Lang, supra note 6, at 169. It has to be observed in that connection that for the purpose of reinforcing the protection of fundamental rights at Community level, the Commission has recently proposed that the Community formally adhere to the European Convention for the Protection of Human Rights and radamental Freedoms oí’1950 and to the protection mechanisms which it contains. See Commission Memorandum, Accession of the Communities to the European Convention of Human Rights, Bull. E C Supp. 2/79.
Cf. Ake Skiöld “Antitrust Problems in Connection with Dealings with Common Market Countries” in International Bar Association, Ninth Conference Report 199 (Edinburgh 1962).
Regulation 27/62 of the Commission, First Regulation Implementing Council Regulation 17/62, J.O. 1962, 35/1118; O.J. (Special Edition 1959–1962) p.132.
Opinion Concerning the Applicability of the Treaty of Rome to the Importation of Japanese Products into the Community, J.O. 1972, C111/13. For details about the content of the Opinion see 2–54.
Cf. Franco-Japanese Ballbearings Decision D15, at para. 16, and D90 at para. 43; French and Taiwanese Mushroom Packers Decision D90, at para. 21.
On the use which the Commission makes of Art. 15(6) of Reg. 17 see Second Report on Competition Policy point 31; Sirdar/Phildar t1975J 1 C.M.L.R. 378; Bronbemalinq/Heidemaatschappij 1975 2 C.M.L.R. D67. On the right to a hearing (but not necessarily to an oral hearing) which exists before a preliminary decision under Art. 15(6) of Reg. 17 see the Cimenteries Case, supra note 59.
Such a conclusion is expressed in an article, from an early stage of the development of Community Law; see Nebolsine “Foreign Enterprises Under the Common Market Antitrust Rules” 38 N.Y.Un. L. Rev. 486–487 (1963). The writer argues that the participation of Member States in the exercise of such power constitutes a functional part of the investigatory power and that the requirements in the regulation are not solely for the Member States’ benefit, but can be invoked by the non-Community enterprise itself.
Deringer, The Competition Law of the European Economic Community sec. 2207 (CCH Ed. 1968),; Hug “The Applicability of the Provisions of the European Community Treaties Against Restraints of Competition to Restraints of Competition Caused in Non-Member States, But Affecting the Common Market” in Cartel and Monopoly in Modern law vol 2, 632 (1961).
See Transocean Marine Paint Association [1975] 2 C.M.L.R. D75.
Re the Business Records of Vereinigung Deutscher _Freiform-Schmieden (1978) 1 C.M.L.R. D36.
a. See McCoy “The United States Parent Corporation-European Subsidiary Relationship Under the European Antitrust Regulations” 8 Va. J. Int. L. 65 (1963); Hollmann “Problems of Obtaining Evidence in Antitrust Litigation; Comparative Approaches to the Multinational Corporation” 11 Texas Int. L.J. 470 (1976).
See for an analogy Case 31/59, Acciaieria di Brescia v. High Authority (1961] 5 Rec. 151, which referred to the investigatory powers of the High Authority of the E.C.S.C. It indicated that the necessity of information required by the High Authority must be clearly apparent from the decision demanding the information.
J. Van Damme, Rechtskundig Weeklad 1630 (1965).
See the decision mentioned in note 84 above. A requirement for the disclosure of information would not be regarded as a violation of business secrets under the law of any Member State (see Commission’s reply to W.Q. No. 152/72, 0.J. 1975, C209/15, and the decision of the English High Court, Chancery Division, British Leyland Motor Corporation Ltd., British Leyland U.K. Ltd., Pressed Steel Fisher Ltd. and British Leyland (Austin Morris) Ltd. v. Wyatt Interpart Company Ltd. [1979] C.M.L.R. 83 para. 12
The judgment in the Hoffmann-La Roche Case indicated the Court’s awareness of some deficiencies in the law regarding business secrets and confidential information (see pp.510–513), although the Court’s opinion offers little guidance as to how those deficiencies will be corrected.
See Re An Investigation at Am & S. Europe Ltd. [1973] 3 C.M.L.R. 378, at para. 14–17.
See J. Rahl, Common Market and American Antitrust: Overlap and Conflict 139(1970).
Cf. Allen “The Development of European Community Antitrust Jurisdiction Over Alien Undertakings” 2 Legal Issues of European Integration 74 (1974).
Continental Can Case 242, at para. 16. The appeal, however, was lodged both by the subsidiary and the parent company as the case was entitled, in the Journal Official of 8th January, 1972, “Europemballage Corporation”, and likewise the letter accompanying the decision was served on Europemballage and there too the case was called “Europemballage Corporation”. The Court stated that the heading of the contested decision was a formal error which can not effect the validity of the contested measure.
See Lipton Cash Registers Decision D37 at para. 75, and D40–041.
Honig, Brown, Gleiss and Hirsch, Cartel Law of the European Economic Community 14–15 (1963).
Statement by Mr. G. Linssen (Office of Competition, Commission of the EEC) in The Application of Articles 85 and 86 of the Treaty in the Antitrust Structure of the European Common Market (a penal debate) 153 (J. Growley ed.,Fordham University Press, 1963).
In 1975 the Commission replied to a M.Q. which, inter alia wanted to know the number of competition cases where the fines had been fully paid up and inquired whether the Commission had ever followed the enforcement procedure when a fine was not paid up in due course. The Commission replied that so far it had had to resort to the enforcement procedure under Art. 192 on one occasion only. This was the case of ACF Chemiefarma NV (a Community enterprise) which paid the fine after the procedure had been initiated (see answer to W.Q. No.542/74, 0.J. 1975, C40/16). In correction to this answer (which was published as an answer to W.Q. 584/76, 0.J. 1977, C27/16) the Commission admitted that at that time Boehringer Mannheim Gm H (a Community enterprise) still owed it 80,000 units of account (this happened as a matter of error and the Commission took immediate steps to collect the amount).
In the U.S. the Attorney General’s Committee recommended that in such situations (where an American enterprise is prosecuted abroad for infringing an agreement ruled prohibited by a U.S. court) the U.S., through the Department of State, should use its offices to assist the American party in defending the foreign suit (see Ret of the Attoroay renPral’R National Committee to Study the NRSLrust Laws 76 (1955).
See Baxter “Extraterritorial Application of the Domestic Law” 1 Un. of Brit. Col. L.R. 333 (1959).
OECD, Committee of Experts on Restrictive Business Practices, Restrictive Business Practices of Multinational Enterprises 53, at sec. 180 (1977).
Regulation 2988/74 of the Council of 26 November 1974, Concerning Limitation Periods in Proceedings and the Enforcement of Sanctions Under the Rules of EEC, Relating to Transport and Competition; 0.J. 1974, L319/1.
Cheshire’s Private International Law, supra note 4, at 229 et seq. The defence of illegality exists also in non-Common Law countries, e.g. Code Civil Articles 1131, 1133 (54th Ed., Dalloz,1955). This approach may also apply to the issue of whether a Community enterptise may be confronted by a foreign judgment, compelling it to carry action abroad which has previously been prohibited by the Commission (e.g. if such action abroad is required by a foreign enterprise which resorted to his own national courts for redress).
See Preston “The Defence of Coercive Foreign Legislation in Competition Proceedings Before the Commission of the European Economic Community”.11 The Int. Lawyer 625 (1977).
See BNA, Antitrust & Trade Reg. Rep. Oct. 21, 1975.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1981 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Barack, B. (1981). The Enforcement Jurisdiction of European Economic Community in respect of Non-Community Enterprises and Conduct Abroad. In: The Application of the Competition Rules (Antitrust Law) of the European Economic Community to Enterprises and Arrangements External to the Common Market. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4482-9_4
Download citation
DOI: https://doi.org/10.1007/978-94-017-4482-9_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-017-4484-3
Online ISBN: 978-94-017-4482-9
eBook Packages: Springer Book Archive