|
IV. Conclusion
In 1990, just before the long-awaited Merger Regulation was to take effect, a leading scholar on European competition law, Barry Hawk, predicted that the European Commission’s “broad remedial powers under the Regulation may raise jurisdictional and comity issues if the EC attempts to invoke them in transactions involving non-Community firms.” More than one decade’s practice of the Commission havs proved the commentator’s foresight. The recent Boeing and AOL Time Warner mergers have shown the Commission’s tremendous power in regulating U.S. companies, and its increasing willingness to exercise such power. Some reactions need to be made. Given the EU’s indifference to international comity, and the almost insurmountable difficulties in negotiating a multinational antitrust agreement, bilateral negotiations on a case-by-case basis under the 1991 Agreement seems to be a practical option for the time being, though it may need some fine-tuning to be more effective. However, no matter what the solution, it will be important to remember the words of the Honorable Learned Hand: “The successful competitor, having been urged to compete, must not be turned upon when he wins.”
【注释】 Council Regulation 4064/89, 1989 O.J. (L 395) 3, as amended by Council Regulation 1310/97, 1997 O.J. (L 180) 3 (hereinafter Merger Regulation).
Merger Regulation, supra note 1, Preamble, para. (3)-(4) (stating that such reorganizations are a corollary of the dismantling of internal frontiers, and should be welcomed as being capable of increasing the competitiveness of European industry).
Id. Preamble, para. (5).
For the definition of “Community dimension”, see infra notes 11-12 and accompanying text.
Merger Regulation, supra note 1, art. 6, 8, 13.
Some well known cases include Boeing’s merger with McDonnell Douglas (Commission Decision of 30 July 1997 Declaring a Concentration Compatible with the Common Market, 1997 OJ 16) (hereinafter Boeing) and Time Warner’s merger with AOL (Commission Decision of 11 October 2000 Declaring a Concentration Compatible with the Common Market, 2001 OJ 28) (hereinafter AOL Time Warner).
This normally means an analysis of the applicability of article 81 (prohibiting agreements in restraint of trade) and 82 (prohibiting the abuse of a dominant position) of the Treaty of Rome, the potential application of any block exemptions, and the potential need to notify the Commission for a comfort letter or negative clearance, plus the possibility of investigation by the competition authorities of member state.
See Spencer Weber Waller, Antitrust and American Business Abroad, §§ 16:2-16:3 (3d edition, 2001).
Merger Regulation, supra note 1, art.3(1)(a)-(b).
Id. art. 3(3).
Council Regulation 4064/89, 1989 O.J. (L 395) 3, art. 3(2).
Council Regulation 1310/97, 1997 O.J. (L 180) 3, art. 1(3). For an official interpretation of this term, see also the Commission Notice on the Concept of Full-Function Joint Ventures under Council Regulation 4064/89, 1998 O.J. (C 66) 1.
Merger Regulation supra note 1, art. 1(2).
Id., art. 1(3).
See generally Reynolds, The Future of Merger Control in Europe, 26 International Business Lawyer 100 (1998).
Merger Regulation, supra note 1, art. 4(1).
Id. art. 7(1)
Id. art.14(1), 15(1). In February 1998, the Commission announced that it had fined the Korean electronic giant Samsung Euro 33,000 for its failure to timely notify the Commission of its acquisition of AST, an America firm. 1998 Competition Policy Newsletter 71 (June 1998).
Merger Regulation, supra note 1, art. 10(1).
Id. art. 6(1).
Id. art 10(3)
Id. art 2(2)-(3). Article 2(1) directs the Commission, in making this appraisal, to take into account the need to maintain and develop effective competition within the Community, the structure of the all the relevant markets, the actual or potential competition from undertakings within and without the Community, the market position of the parties, the interests of consumers, and the development of technical and economic progress.
Id. art 8(2)-(4).
Black law ?
Roger P. Alford, The Extraterritorial Application of Antitrust Law: The United States and European Community Approaches, 33 Va. J. Int’l L. 1,5 (1992) (hereinafter Alford, Extraterritorial Application).
15 U.S.C. §§ 1 & 2.
United States v. Aluminum Co. of Am., 148 F. 2d 416, 444 (2d Cir. 1945) (hereinafter Alcoa).
Id. at 443-44.
In its 1976 Timberlane decision, the Ninth Circuit adopted the “jurisdictional rule of reason” which involved evaluating and balancing a number of factors pertinent to international comity in addition to the consideration of effects. Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 611-12 (9th Cir. 1976). Several circuit courts adopted similar balancing test subsequently. Meanwhile, the 1982 Foreign Trade Antitrust Improvement Act (FTACA) amended the Sherman and Federal Trade Commission Acts with respect to export commerce and wholly foreign conduct: jurisdiction would exist only when the challenged conduct had a “direct, substantial and reasonably foreseeable” effect on U.S. domestic economy or on U.S. export commerce. 15 U.S.C. §§ 6(a), 45(a)(3). ].
|
