The Application of EU Competition Law to Undertakings Located Outside EU Borders : international cartels in focus.

Abstract: The last decade or so the European Commission has put a lot of effort on combating international cartels. The same development can be seen on the other side of the Atlantic in the US and in international foras where focus is put on policy development, such as in the OECD. This master thesis investigates the challenges in enforcing EU competition law to companies situated outside the Union that enter into cartels. Are the non-EU undertakings harder to reach? Public international law and jurisdiction sets some limits for extraterritorial application of EU competition law. Case-law shows that the CJEU has chosen to base jurisdiction to apply EU competition law to non-EU undertakings with reference to the territorial principle, with a requirement that an agreement is implemented and produces a foresee-able, sustainable and immediate effect within the EU. Some say this "implementation doctrine" has a more limited reach than the "effects doctrine" promoted in the US. The method however still provides for legislative jurisdiction over, probably, all internation-al cartels. The enforcement jurisdiction shows to be more limited however and coercive actions cannot be carried out by the Commission outside the EU. Despite this the enforcement record is still good. Since the turn of the millennium the Commission has imposed record level fines on many non-EU undertakings for their participation in global cartels. I have studied some of the more debated Commission decisions on international cartels taken this last decade to see how jurisdictional issues have been dealt with and if the Commission takes into account that undertakings are increasingly being fined for the same cartel also in other jurisdictions. Extraterritorial application of EU competition law seems to be an accepted practice. Arguments made by undertakings that the Commission does not have jurisdiction under public interna-tional law or should have regard to the principle of non-intervention or comity have not been successful, nor arguments that the Commission should have regard to fines im-posed elsewhere in the world.