Cartels globaux, riposte américaine. L'ère empagran ?
This paper examines how competition policy deals with transnational anticompetitive practices. Following the prevalent effects doctrine, national competition authorities have jurisdiction only for practices which have an anticompetitive effect on their national territory, whether those practices have been implemented by domestic firms or by foreign firms. But outbound extraterritoriality is usually excluded. National competition authorities are not competent to deal with practices which have an effect outside their national territory whether such practices have been implemented by domestic or foreign firms. While the effects doctrine is clear and simple, it does not allow competition authorities to eliminate all transnational anticompetitive practices. The possible significance of the recent Empagran decision of the US Supreme Court concerning extraterritorial enforcement of competition law is discussed. In this decision, the US Supreme Court rejected the claim of a foreign plaintiff suing in the USA another foreign firm which had participated in an international cartel. The Court did not rule out that such a claim could be admitted if it was established that the damage abroad was linked to a domestic violation of the Sherman act. We focus on two questions. First is the Empagran decision merely a reaffirmation of a strict interpretation of the « effects doctrine» ? If that is the case, how can the enforcement of domestic competition laws by national competition authorities deal with transnational anticompetitive practices ? Second, can the Empagran decision be understood as signalling a move away from the pure effects doctrine and as the beginning of a new era featured with a reinforced role for US courts in the fight against international cartels ? Those questions are all the more relevant that the discussions on the possible multilateral framework to deal with transnational anticompetitive practices in the WTO are at a standstill.
Volume (Year): t. XIX, 1 (2005)
Issue (Month): 1 ()
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