COMPETITION • EUROPEAN LAW • FIELD OF APPLICATION
To determine the geographic scope of application of competition law, competition authorities today apply the criterion of implementation, in conjunction with that of qualified effect.
According to the implementation theory, for European competition law to be applicable, it is not necessary for the undertaking’s conduct to have taken place entirely within the territory of the Union, but neither is it sufficient that the anticompetitive effects were produced there. The anticompetitive behavior must have been implemented in the internal market. The criterion of implementation or “qualified behavior” requires a distinction to be made, both chronological and material, between the different acts that constitute the behavior: only the final act, the one that is binding, is relevant for triggering the Union’s jurisdiction with regard to undertakings located in third countries. As an intermediate theory between that of behavior and that of effect, the theory of implementation led the Court of Justice to remove the price recommendation of an American export association from the ambit of European law: although it constituted an element of the cartel and was a condition of its effects, the original operative event did not participate in its implementation. On the other hand, it made it possible to subject to Article 101 the practices of vertically integrated undertakings that incorporated, outside the EEA, semi-finished products into finished products resold in the EEA.
