On 26th March 2009, Neelie Kroes, European Commissioner for Competition Policy, stressed in her speech that her task is to reject the argument that going soft on competition enforcement is the right approach to helping bring an end to the recession. It is clear that the Commission will continue to apply its competition law to undertakings and impose fines for violations irrespective of the situation. This stance could potentially place a greater burden on private-sector companies, which have been struggling to deal with the recent economic crisis. In the era of globalization, it is becoming more and more difficult to isolate the effects of conduct committed by international companies, such that restrictions on competition affecting the EU internal market may very well originate outside the Community. As a result, limits on the application of EU competition law is subject to serious dispute in terms of the extraterritorial application of competition law.
In this paper, I shall explain the problems and the impact of the extraterritorial application of EU competition law; mainly the extraterritorial application of Article 101 of the Treaty on the Functioning of the European Union with reference of decisions of the Commission and judgments handed down by European courts. As a background to discuss the problems of extraterritorial application of EU competition law, I refer to the theory of jurisdiction from the perspective of public international law including the effects doctrine which is the most controversial theory regarding to the extraterritorial applications of the competition law in general. As an example which shocked Japanese companies affected by
the Commission's decision I will mention the recent decision in a case relating to a gas insulated switchgear cartel. Finally, I will discuss measures that can be implemented in order to resolve problems regarding the extraterritorial application of EU competition law.
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