European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The single economic entity theory is not of general application since it depends on the presence of subsidiaries within the EU. The effects theory does seem relatively unsuitable in the context of competition law: an anticompetitive effect can be multiplied ad infinitum and be more or less appreciable depending on the market on which it is produced and the way it is assessed under various competit …

Implementation doctrine/Qualified effects doctrine

The single economic entity theory is not of general application since it depends on the presence of subsidiaries within the EU. The effects theory does seem relatively unsuitable in the context of competition law: an anticompetitive effect can be multiplied ad infinitum and be more or less appreciable depending on the market on which it is produced and the way it is assessed under various competition rules can be fundamentally different. In reality, the effects theory creates too broad a jurisdictional scope. Furthermore, in general when the doctrine is upheld, it is usually in terms of a “qualified effect” . The control authorities now seem to replace the “effects” criterion with the more restrictive “implementation” theory: for EU law to apply, participating companies must have implemented the anticompetitive practices within the EU .

According to the Court of Justice , “an infringement of Article 101 TFEU, such as the conclusion of an agreement which has had the effect of restricting competition within the [internal market], consists of conduct made up of two elements, the formation of the agreement, decision or concerted practice and the implementation thereof. If the applicability of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions. The decisive factor is therefore the place where it is implemented”. The Court of Justice prefers the “qualified behavior” to the “qualified effects” doctrine  probably as it avoids all the subjective assessments that it would have to make in order to qualify the effect. For EU competition law to apply, it is not necessary that the behavior of the undertaking is fully realized within the EU territory but it is not enough either that anticompetitive effects are produced on it. The anticompetitive behavior must have been implemented in the internal market. The implementation or “qualified behavior” test requires that a chronological and material distinction be made between the different acts making up the anticompetitive behavior: only a definite act, binding in its scope, is relevant to trigger the jurisdiction of the Union in respect of enterprises located in non-Member countries . Somewhere in between the effects doctrine and the behavior doctrine, the implementation doctrine led the Court of Justice in the wood pulp judgment to remove the price recommendations by an American export association from the jurisdiction of EU law: although it is an element of the agreement and determines its effects, the original operative event leading to the agreement is not part of its implementation . On the other hand it means that practices by vertically integrated undertakings which incorporate semi-finished products outside the EEA into finished products within the EEA are caught by Article 101 . Recently the EU court has held that, in order to justify the Commission's jurisdiction under public international law where trade with third countries is involved and where implementation of the practices at issue takes place within the European Union, it is sufficient to establish either the qualified effects of the practice within the internal market or that it was implemented in the European Union . The criterion of the implementation of the cartel as a factor linking it  to EU territory is satisfied where the cartel participants, directly or  indirectly, sold the products concerned worldwide, including in Europe,  even if the applicant claims that sales in that geographical area were  very limited and were made by its subsidiaries .

The General Court subsequently stated that, when anticompetitive conduct originates outside the territory of the Union or the EEA, the implementation and qualified effects tests are alternative criteria , and that the Commission must establish either the qualified effects of the practice in the  European Union or that it was implemented in the European Union .  In the most recent case law, the General Court would seem to favor the qualified effects test. In several judgments handed down on the same day ,  the Court specified that the implementation of this criterion does not require the  establishment that the conduct in question has had anticompetitive effects in the internal market or within the EEA territory but means only that it entails taking into account the likely effect of the conduct in question on competition. It is sufficient for the Commission to be able, in the absence of any doubt, to consider that it is reasonably foreseeable that the infringement will produce immediate and substantial effects in the internal market or within the EEA, for EU law to be applicable .

See the dicta of Advocate General Darmon in Case on the ECJ 89/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

See Case 89/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ; Commission Decision No 85/206/EEC of 19 December 1984, Aluminium imports from eastern Europe, LawLex200500004013JBJ and No 85/202/EEC of 19 December 1984, Wood pulp, LawLex200500004017JBJ.

Case T-286/09 Intel Corp, Judgment of 12 June 2014, LawLex201400002078JBJ, upheld by the Court of Justice in Case C-413/14 P Intel Corporation, Judgment of 6 September 2017, LawLex201700001368JBJ. Concerning the alternative nature of the criteria, see also Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ. 

Judgments of 30 March 2022: Case T-324/17 SAS Cargo Group and other, LawLex202200001875, Case T-323/17 Martinair Holland NV, LawLex202200002878JBJ, Case T-334/17 Cargolux Airlines  International SA, LawLex202200002012JBJ, Case T-325/17 Koninklijke Luchtvaart Maatschappij NV, LawLex202200002861JBJ, Case T-342/17 Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG, LawLex202200001917JBJ, Case C-326/17 Air Canada, LawLex202200001990JBJ.

The requirement of foreseeability is satisfied by effects that the parties to the agreement must reasonably - within the bounds of generally known realities - know will occur, such as price increases from the horizontal fixing of surcharges by air carriers: Case T-342/17 Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG, LawLex202200001917JBJ.

See Case 89/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

According to which it is enough that the effect of a practice be immediate, substantial and foreseeable for the jurisdiction of the EU authorities to apply to it: See, for concentrations, See Case T-102/96 Gencor v Commission [1999] ECR II-753, LawLex200500004258JBJ.

Commission Decision No 94/601/EC of 13 July 1994, Cartonboard, LawLex200400003662JBJ; No 85/202/EEC of 19 December 1984, Wood pulp, LawLex200500004017JBJ; No 89/191/EEC of 21 December 1988, LdPE, LawLex200500003936JBJ; Case 89/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ; See also Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ, pointing out that the criterion as to the implementation of an agreement is satisfied by mere sale within the Union, irrespective of the location of the sources of supply and the production plant.

Cases C-89/85; C-104/85; C-114/85; C-116/85; C-117/85; C-125 to 129/85 Ahlström Osakeyhtiö and others v Commission [1988] ECR 5193, LawLex200500003941JBJ.

Case T-91/11 InnoLux Corp., Judgment of 27 February 2014, LawLex201400000368JBJ, upheld in Case C-231/14 P InnoLux Corp v  Commission, Judgment of 9 July 2015, LawLex201500000902JBJ; Case T-91/13 LG Electronics Inc., Judgment of 9 September 2015, LawLex201500001143JBJ; Case T-92/13 Koninklijke Philips Electronics NV, Judgment of 9 September 2015, LawLex201500001184JBJ; Case T-104/13 Toshiba Corp., Judgment of 9 September 2015, LawLex201500001109JBJ. 

Case T-286/09 Intel Corp, Judgment of 12 June 2014, LawLex201400002078JBJ, upheld in Case C-413/14 P Intel Corporation, Judgment of 6 September 2017, LawLex201700001368JBJ. See also Case T-8/16 Toshiba Samsung Storage Technology Corp, Judgment of 12 July 2019, LawLex201900000929JBJ.

Case T-363/18 Nippon Chemi-Con Corporation, Judgment of 29 September 2021, LawLex202100005437JBJ; Case C-759/21 P Nippon Chemi-Con Corporation, Judgment of 13 July 2023, LawLex202400004665JBJ.

Case T-343/17 Cathay Pacific Airways Ltd, Judgment of 30 March 2022, LawLex202200001916JBJ. 

European Competition Law

16. Implementation doctrine/Qualified effects doctrine

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Les décisions de justice citées dans ce paragraphe :

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16. Implementation doctrine/Qualified effects doctrine

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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