The Gazette 1985

GAZETTE

JULY/AUGUST1985

Community's Member States is the foundation of the

Community's jurisdiction, in full conformity with

international law.

A further interesting feature of this case is that some of

the US producers had registered their export cartel under

the

U.S. Webb-Pomcrcne Act

which grants immunity from

action under American antitrust law. The Commission's

decision, while stressing that Webb-Pomerene associa-

tions trading into the common market are not

per se

unlawful in Community law, held that their activities

may — and in this case did — fall foul of Article 85 if the

various conditions for the application of that provision

are met in the normal way. Any other view would have

been surprising. The Webb-Pomerene Act can hardly

confer exemption from foreign antitrust laws and I should

not expect any provision of Community law to do so

either. The water's edge is the water's edge, be it in County

Kerry or the coast of Maine.

At the end of 1984, the Commission took an important

decision regarding imports of

aluminium

into the

common market from Eastern Europe

. Here the

arrangement was that major Western European

producers together with their North American counter-

parts bought aluminium ingot from Eastern European

foreign trade organisations. These organisations

undertook in return not to sell ingot, scrap or semi-

manufactures to any other party in the Westerners'

markets. The Western producers' take-up of Eastern

aluminium was in direct proportion to their share of total

Western production. Self-restraint agreements between

companies are likely to violate Article 85(1) and the fact

that they are condoned or even supported by Govern-

ments does not protect them from the rigours of

Community competition law.

As regards jurisdiction, the Commission applied the

enterprise entity doctrine

to those undertakings which had

subsidiaries in the EEC under their control and used that

relationship of control to engage in anti-competitive

conduct and the

effects

doctrine to those which were

located outside the common market but traded into it.

The Commission's application of the principle of

comity

was phrased thus:

"Moreover there are no reasons of

comity which militate in favour of self restraint in the

exercise of jurisdiction by the Commission. The exercise of

jurisdiction by the Commission does not require any of the

undertakings concerned to act in any way contrary to the

requirements of their domestic laws, nor would the

application of Community law adversely affect important

interests of a non-member State. Such an interest would

have to be so important as to prevail over the fundamental

interest of the Community that competition within the

common market is not distorted (Article 3(f) of the EEC

Treaty), for that is for an essential means of achieving the

objectives of the Community.

(OJ p.48, para. 14.7).

These decisions illustrate the Commission's determina-

tion to oppose horizontal price fixing and market sharing

arrangements. Such flagrant interference with competi-

tion and violation of basic common market principles will

be met with strict application of the law and heavy fines

where appropriate. The Commission may fine an

undertaking up to 10% of its turnover in the preceding

business year and may adjust its fining practices in the

light of the overall needs of competition policy. It is

sometimes necessary to "décourager les autres".

This Article will be concluded in the October 1985

'Gazette'.

Footnotes

I . I shall c o n c e n t r a te on the E E C , m e n t i o n i ng the E C S C only in

relation to steel policy.

2. F o r the C o m m i s s i o n 's overall policy, see

The Thrust of

Commission

Policy,

s t a t e m e nt by C o m m i s s i on President D e l o rs to the E u r o p e an

P a r l i a m e n t,

14-15 J a n u a ry

1985, Bulletin of the

E u r o p e an

C o m m u n i t i e s, S u p p l e m e nt 1/85 a n d

Programme

of the

Commission

for

1985.

s t a t e m e nt

by President

D e l o rs to the

E u r o p e an

P a r l i a m e n t, 12 M a r ch 1985, Bulletin of the E u r o p e an C o m m u n i t i e s,

S u p p l e m e nt 4 / 8 5.

3. Article 2 of the E:EC treaty p r o v i d es that: " T h e C o m m u n i ty shall

have as its task, by establishing a c o m m o n m a r k et a nd progressively

a p p r o x i m a t i ng the e c o n o m ic policies of M e m b er States, to p r o m o te

t h r o u g h o ut

the C o m m u n i ty

h a r m o n i o us

d e v e l o p m e nt

e c o n o m ic activities, a c o n t i n u o us a nd b a l a n c ed e x p a n s i o n, an

increase in stability, an a c c e l e r a t ed raising of the s t a n d a rd of living

a n d closer relations b e t w e en the States b e l o n g i ng to it."

4. Articles 85-90 E E C.

5. Article 37 E E C.

6. Articles 92-94 E E C. O n state aids, see C a s p a r i,

State Aids in the EEC.

(1983) F o r d h a m C o r p o r a te L a w Institute 1.

7. C o m m i s s i on R e g u l a t i on N o. 2 3 4 9 / 84 of 23 July 1984 on the

a p p l i c a t i on of Article 85(3) of the T r e a ty to certain categories of

patent licensing a g r e e m e n t s, O . J. N o. L 2 1 9 / 1 5, 16 August 1984;

C o m m i s s i s on R e g u l a t i on N o. 4 1 8 / 85 of 19 D e c e m b er 1984 on the

a p p l i c a t i on of Article 85(3) of the T r e a ty to categories of research

a n d d e v e l o p m e nt a g r e e m e n t s, O . J. L 5 3 / 5, 22 F e b r u a ry 1985;

C o m m i s s i on R e g u a l t i on N o. 4 1 7 / 85 on the a p p l i c a t i on of Article

85(3) of the T r e a ty to categories of specialisation a g r e e m e n t s. O . J. L

5 3 / 1. 22 F e b r u a ry 1985; C o m m i s s i on R e g u l a t i on of N o. 123/85 of

12 D e c e m b er 1984 on the a p p l i c a t i on of Article 85(3) of the T r e a ty to

certain categories of m o t o r vehicle d i s t r i b u t i on a nd servicing

a g r e e m e n t s, O . J. L 15/16, 18 J a n u a ry 1985.

8. e.g. T h e E S P R I T p r o g r a m me ( E u r o p e an P r o g r a m me lor Research

a n d D e v e l o p m e nt in I n f o r m a t i on T e c h n o l o g i e s) — O . J. L 6 7 / 5 4. 9

M a r ch 1984 a n d O . J. L 55, 23 F e b r u a ry 1985; the R A C E p r o p o s al

( R e s e a r ch a n d D e v e l o p m e nt in A d v a n c ed C o m m u n i c a t i on T e c h n o-

(continued on p. 235)

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