Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

1) Restrictive agreements
In the case of a restrictive practice the ESA has jurisdiction when:
- trade between EFTA States only is affected (Section 56 (I a), EEA), or
- trade between the EU and at least one ETFA State is affected and the participating undertakings achieve a turnover of at least 33% in EFTA States (Section 56 (I b), EEA), or where
- the effect on trade between EU Member States or  …

Jurisdictional rules

In the case of a restrictive practice the ESA has jurisdiction when:

- trade between EFTA States only is affected (Section 56 (I a), EEA), or

- trade between the EU and at least one ETFA State is affected and the participating undertakings achieve a turnover of at least 33% in EFTA States (Section 56 (I b), EEA), or where

- the effect on trade between EU Member States or on competition within the Union is not appreciable (Section 56 III, EEA).

According to Section 56 (I c) EEA, the EU Commission decides on the remaining cases as well as on cases under Section 56 (I b) EEA, where trade between Member States is affected.

The division of jurisdiction in cases of abuse of a dominant position is based on three parameters:

- the geographic market on which a dominant position is found to exist,

- the share of turnover between in the EU and EFTA.

Cases are attributed to one or the other authority on the basis of a combination of two or all three parameters. In principle, the authority in the territory of which a dominant position is found to exist has jurisdiction (Section 56 (II), EEA). If a dominant position is found to exist in both the EFTA States and the EU, the attribution rules under restrictive practices apply: the ESA has jurisdiction where trade between the EU and at least one EFTA State is affected and if the undertaking concerned achieves a specific percentage (33% or more) of its aggregate EEA turnover in the territory of the EFTA States. The European Commission is said to have jurisdiction if:

(1) the undertaking achieves more than 67 per cent of its aggregate EEA turnover in the EU States, or

(2) the practice affects trade between EU Member States.

According to Section 62, all existing systems of State aid in the territory of the contracting parties, as well as any plans to grant or alter State aid, shall be subject to constant review as to their compatibility with Section 61. This review shall be carried out:

(a) as regards the EU Member States, by the EU Commission;

(b) as regards the EFTA States, by the EFTA Surveillance Authority which is entrusted with the powers and functions laid down in Protocol 26 of the EEA Agreement.

With a view to ensuring a uniform surveillance in the field of State aid throughout the territory covered by this Agreement, the EU Commission and the ESA must cooperate in accordance with the provisions set out in Protocol 27 of the EEA Agreement.

The powers and functions of the ESA, the EU Commission or the Liechtenstein authorities when investigating alleged breaches of the EEA competition rules include, the possibility to request information from and to carry out on-the-spot investigations into undertakings, make requests for information from the competent authorities and the Governments of Member States and to make inquiries into sectors of the economy where pertinent. Where an investigation is to be carried out by the ESA, the permission of the General Court must first be received, on the application of the Office of Economic Affairs, in order for all the premises, properties and means of transport belonging to the undertaking to be searched (Section 4 of the 1996 Act). According to Section 55 EEA, the ESA and the EU Commission shall investigate cases on their own initiative or on application by a State coming from their respective territory.

At a national level the Office of the Economic Affairs shall give its assistance to the competent surveillance authority in order to carry out these investigations. The Office of Economic Affairs may in accordance with Section 3 of the 1996 Act, request undertakings and associations of undertakings to provide information within a specified time limit set in accordance with the circumstances of each individual case. The Authority may also inspect and audit an undertakings business records or have them inspected and audited by suitably qualified experts. The proprietors of an undertaking must provide any information requested by the authority as well as permit business premises and business property to be entered.

Complaints and investigations

In enforcing the provisions of the EEA competition rules, both the ESA and the EU Commission are obliged to respect the right of defense of the undertakings concerned thus ensuring a fair procedure. This involves giving the undertaking the opportunity to express its views on the matter both orally and in a written form and allowing it access to the file. Both the ESA and EU Commission are bound by a duty not to disclose confidential information and the rules on professional secrecy. Furthermore, the authorities must carry out their respective duties in close liaison with the competent authorities of the Member States. At national level, enforcement proceedings are carried out by the Office of Economic Affairs. The national procedure follows the rules of the law regarding the General Maintenance of State Administration (Gesetz über die allgemeine Landesverwaltungspflege).

Proceedings before the ESA, the EU Commission and the Office of Economic Affairs

      Pursuant to Section 4 of Chapter II of Protocol 4 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, the competition authorities of the EFTA States have the power to apply Sections 53 and 54 of the EEA Agreement in individual cases and, for this purpose, acting on their own initiative or on a complaint, they may, inter alia, order interim measures.

  Likewise, under Section 8 of the same Protocol, the ESA may also order interim measures in cases of urgency due to the risk of serious and irreparable damage to competition, on the basis of a prima facie finding of infringement. Such an order applies for a specified period of time and may be renewed insofar as is necessary and appropriate.

Interim relief

      Law suits or claims for damages can be taken in Liechtenstein's civil courts, based on the competition rules of the EEA Agreement. 

Global Competition Law

1077. Jurisdictional rules

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Les notions juridiques connexes

1077. Jurisdictional rules

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise