Extraterritorial Jurisdiction, Antitrust, and the EU Intel Case: Implementation, Qualified Effects, and the Third Kind
This Essay in honor of the memory of my dear friend and coauthor, Roger Goebel, presents a cutting-edge issue of extraterritoriality. May the law of one jurisdiction, whose competition law reaches a set of practices that may be anticompetitive, also reach wholly offshore conduct that is part of the same strategy? Does it matter that the conduct is not implemented in the jurisdiction, and its prospective territorial effects are derivative from its effects on the world market? This question was before the Court of Justice of the European Union in the now famous case, Intel Corp. v. Commission (“Intel”). The Court in Intel examined two alternative jurisdictional bases, each reflecting a theory of the case: (1) was the impugned conduct implemented in the European Economic Area (“EEA”)? ; and (2) did the conduct have qualified effects (foreseeably substantial and immediate) in the EEA? Despite the words of the Court of Justice of the European Union which presume to apply the qualified effects test, I conclude that the Court applied a third test—a “qualified effects extension” for ancillary, directly related conduct. Was application of the third test appropriate?
Eleanor M. Fox, Extraterritorial Jurisdiction, Antitrust, and the EU Intel Case: Implementation, Qualified Effects, and the Third Kind, 42 Fordham Int'l L.J. 981 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss3/8