Die Überwindung des Territorialitätsprinzips im EU-Kartellrecht

The Decline of the Territoriality Principle in EU Antitrust Law This study challenges paradigms in the area of EU antitrust law. In contrast to the prevailing opinion it draws the conclusion that the legal acts (the decisions) of the cartel authorities of the EU member states ought to be qualified as transnational administrative acts which are issued under the authority of the EU within the application of European law.Specifically, this concerns the question whether the cartel authority of one EU member state may decide on anti-competitive behaviour in the same manner as, for example, the European Commission would decide on it, i.e., with direct effects including the obligation to execute such decisions on the territory of all member states. The predominant view is that a decision of a national cartel authority does not have direct effects on the territory of other member states. Especially in private international law literature it is argued that even within the framework of the EU, the principles of territoriality and limitation of administrative acts apply and that therefore such decisions are limited to the territory of the member state in which they were issued. This shows that even the existence of the EU has not led to a change in traditional opinions. In practice, however, this leads to seriously inappropriate phenomena, including, for example, additional costs for parallel proceedings in practically the same matters in several member states. In view of administrative sanctions this may also violate one of the basic principles of human rights: ne bis in idem.According to this study, already de lege lata in all EU member states the effects of transnational acts are fundamentally the same as they are within the jurisdiction in which they are issued. Such an act binds every affected party, including all state authorities of the member states. Its validity is based on the principle of the recognition of all national legal systems within the EU. Despite the non-existence of an explicit provision, from the purpose and certain principles of European law one may construe a general obligation to respect the effects of the so-called European Transnational Act. However, any such act must comply with the basic principles of EU law, and especially it must not be in conflict with basic procedural rights. De lege ferenda it appears necessary to change Regulation 1/2003 in order to clarify the legal regime.