TRENDS : EFFECT ON COMMERCE BETWEEN MEMBER STATES - NOTION - RESTRICTIVE DEFINITION - EUROPEAN COMMISSION’S GUIDELINES - CRITERION OF MARKET SHARE - ANTITRUST

Effect on trade between Member States and anticompetitive practices: A current issue

The papers gathered in this section provide various points of views on the notion of effect on commerce between member States in EU law, with some US point of view. Professor David Bosco in a brief introduction focuses on the evolution of the notion. According to Irene Luc, Chief legal officer of the French Competition Authority and author of the second contribution, several recent cases decided by French Courts implement a restrictive definition of the concept of substantial effect according to the European Commission’s Guidelines. Such a case law does not rely on EU caselaw but seems to be stemming from a strict reading of the EU Guidelines. French Courts, in these recent cases, favored the criterion of “aggregate market share of the parties on any relevant market within the Community affected by the agreement” to the detriment of the criterion based size of the concerned undertakings. Yet, there is no particular reason to favor the first criterion over the latter. As a consequence, French Courts exclude the applicability of EC law to anticompetitive conducts that only affect a portion of the Member State’s territory, i.e. French overseas territories. Still, certain cases of anticompetitive practices, taking place in ports and airports, affecting French overseas territories or substantial parts of the Common Market have an unquestionable appreciable effect on trade between member States, pertaining to the senses given to the term by the EC’s guidelines, when they involve European or even worldwide-scale companies. According to Philipe Rinzacaux, author of the third contribution and lawyer at the Paris Bar, the submission of anticompetitive practices to UE law results in important material and procedural consequences for national antitrust authorities and courts. The EU law applicability can be difficult to prove when the practices have an effect on trade between member States. This issue has been illustrated by recent French Courts decisions concerning practices taking place in small parts of the national territory, the French overseas departments. According to these decisions, the dimension of the undertakings concerned and the localization of their activity and head office are useful criteria to prove the existence of an effect on trade between member States. However , in order to ascertain the appreciability of this effect, the volume of sales affected must be compared to the overall volume of sales of the products concerned inside the relevant member State. The fourth contribution, written by Pascal Cardonnel of the Court of Justice of the European Union, is dedicated to the concept of commerce interstate appreciability and its various interpretations. Finally the last contribution by Jean-Christophe Roda, Lecturer at the University Paul Cézanne at Aix Marseille, is devoted to the notion of "interstate commerce" in US antitrust law.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Introduction David BOSCO Associate of the law faculties, professor at the University of Nice Sophia-Antipolis 1. Curiously, talking about the effect on trade between Member States has never been as topical as it is today. Yet the wording of the texts has not changed since the founding treaties. "Any agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States are incompatible with the internal market and prohibited. […] "(now Article 101 TFEU); "Any abuse by one or more undertakings of a dominant position shall be prohibited as incompatible with the internal market in so far

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Authors

  • Jean Moulin University Lyon III
  • University of Aix-Marseille
  • French Competition Authority (Paris)
  • European Court of Justice (Luxembourg)
  • Orrick, Herrington & Sutcliffe (Paris)

Quotation

Jean-Christophe Roda, David Bosco, Irène Luc, Pascal Cardonnel, Philippe Rincazaux, Effect on trade between Member States and anticompetitive practices: A current issue, May 2011, Concurrences N° 2-2011, Art. N° 35746, pp. 17-32

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