The Gazette 1985

JULY/AUGUST1985

GAZETTE

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 16 . 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 f LAWPRINT

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 a h a r m o n i o us d e v e l o p m e nt of 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) For a complete range of Legal forms (ex stock) and ell your stationery requirement.

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