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EU competition law and extraterritoriality

The European Commission (Commission) jurisdiction to prosecute antitrust infringements committed outside of the European Economic Area (EEA) by non-EEA-based undertakings has been the subject of much debate.

Although EU Treaties do not provide specific guidance on the extraterritorial reach of EU competition rules, the Court of Justice has over time devised a number of tests to determine whether, in a given case, the Commission has appropriate jurisdiction. These tests are:

1. •

   the single economic entity doctrine that enables the Commission to assert jurisdiction over the parent company of a subsidiary located and engaged in illegal activity within the EEA

2. •

   the implementation doctrine that focuses on the extent to which the anti-competitive conduct has been implemented in the EEA, and

3. •

   the qualified effects doctrine, whereby the Commission needs to show that the conduct had substantial, immediate, and foreseeable effects in the EEA.

See Practice Note: Extraterritorial application of EU competition law.

Effect on trade

‘Effect on trade’ is a jurisdictional test which determines whether EU or national law is applicable to potentially anti-competitive conduct.