Sui limiti internazionali all’applicazione extraterritoriale del diritto europeo della concorrenza

The author examines the practice concerning the scope of application of European Union competition rules. The purpose of this study is to establish whether rules of international law exist, or are recognised to exist, which may limit the extraterritorial reach of articles 101 or 102 TFEU, as well as of the EU regime on mergers control. Notwithstanding the apparent nuances characterising the case law of the Commission, the General Court or the European Court of Justice, the analysis made by the author tends to exclude that rules of international law restrain the enforcement of European antitrust law. Rather, once an interest exists to apply European competition rules to situations characterised by extraterritoriality, a legal criterion justified by, or compatible with, international law is always found. In this vein, it is also maintained that, on the one hand, the enforcement of antitrust rules vis-à-vis non-European entities is a matter of policy rather than law. It is based on the principle that all companies that operate in the European market, whatever their nationality, have to play by EU rules. Decisions may be subject to judicial review only if they are badly motivated as regards the policy interests beneath the choice to apply extraterritorially domestic law. This scenario implies the acceptance of concurring and even of conflicting jurisdictions on the same subject-matter; and yet, this situation occurs regularly in the globalised world we experience and is well known to firms willing to operate in international markets. It can be partly organised through international agreements (which the EU has stipulated with third States), but should be regarded as normal. As a final remark, it is argued that the States’ claim to apply their legislation with extraterritorial reach is nothing else than a revised expression of State sovereignty and of the wish to enforce domestic values and interests in the international arena; the more these are common to other States (this being the case for antitrust rules), the easier will be the acceptance of an extraterritorial reach of domestic law.