On Implementation and Effects: The Recent Case-law on the Territorial (or Extraterritorial?) Application of EU Competition Rules

Abstract

To which conduct may (or should) a State apply its laws? Whom may a State compel to do or not to do something? Which laws should, if any, prevail—and under what conditions—when rules from different legal systems all seem applicable to the same situation, generating conflicts or overlaps? These questions—which concern the reach and scope of a State’s laws1—are as old as legal thought itself. Throughout Western Europe’s history, depending on the historical, social, and political context, different principles have governed jurisdictional issues. For example, the ancient world was composed of communities rather than territories and, therefore, the principle of personality prevailed.2 During the Roman Empire, laws were mainly regarded as territorial in scope, inasmuch as various cities conquered by Rome were permitted to retain (at least in part) the laws that they enjoyed before.3 In the Middle Ages, on the other hand, the principle of personality prevailed again as a result of the barbarian invasions: different ethnic groups or tribes lived in the same territory, each governed by its own laws. In the period of feudalism, the principle of territoriality reasserted itself but several legal systems sprung into life. Indeed, within a city, fiefdom, or land, different bodies of rules might have been applicable at the same time, leading to possible conflicts: religious rules versus secular rules, city or corporations’ rules versus jus commune (originating from Roman law) or lex mercatoria. Legal scholars, such as glossators, thus engaged, at least from the XII century, in a discussion on the territoriality or extraterritoriality of laws.4 Only with the rise of modern nation-States in the XVII century has the pre-eminence of the principle of territoriality become gradually entrenched in Europe.5 Paraphrasing Ford, it may be said that history appears to call into doubt the common intuition that territorial jurisdiction is a timeless, natural and inevitable feature of legal system.6