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The Implications of the Wood Pulp Case for the European Communities

Published online by Cambridge University Press:  21 July 2009

M. Jeffrey
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Abstract

The liberal extension by the United States of its laws to non-resident non-nationals under a so called ‘effects’ doctrine has been the cause of much concern to its closest trading allies. Some fear the European Court of Justice's recent Woodpulp case indicates that the European Community will follow the example of the United States. Jeffrey examines the legality of the ‘effects’ doctrine before looking in detail at the ECJ's decision in Woodpulp. He concludes that the Woodpulp case will not support the use of an ‘effects’ doctrine. Instead it evidences an exciting development in Community jurisprudence within the accepted limits of international law.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 4 , Issue 1 , April 1991 , pp. 75 - 107
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1991

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References

1. K. Dam, Economic and political Aspects of Extraterritoriality, 19 Int. Lawyer 888 (1985).

2. K. Dam, Extra-territoriality and Conflicts of Jurisdiction, in C.J. Olmstead (ed.), Extra-territorial Application of Laws and Responses Thereto 24 (1984).

3. Joined Cases 89, 104, 114, 116, 117 and 125–129/85, A. Ahlstrom Osakeyhtio v. Commission 4 C.M.L.R. 901 (1988).

4. H.J. Laski, The Foundations of Sovereignty 2 (1931).

5. Laski notes that “it is one of the outstanding paradoxes of history that a movement which sought ecclesiastical purification through the medium of individual conscience had this result”, supra note 4, at 15.

6. D. Thompson, Europe since Napolen 99 (1962).

7. Supra note4, at 14.

8. Max Huber in the Island of Palmas Case, 11 UN Reports of International Arbitral Awards 838–839 (1928).

9. L. Oppenheim (ed.), The Collected papers of John Westlake on Public International Law 86 (1914).

10. See P. Weil, International Law Limitations on State Jurisdiction, supra note 2, at 32.

11. F.A. Mann, Studies in International Law 10 (1973).

12. R. W. Bentham, The Oil Industry and Problems of Extraterritoriality, in R. W. Bentham (ed.), Recent Developments in UK Petroleum Law 52 (1983–1984).

13. Id.,

14. Supra note 8.

15. See, e.g., M.N. Shaw, International Law, ch. 8 (1986).

16. Professer Rosalyn Higgins' view that any base of jurisdiction that is reasonable should suffice will be examined below. R. Higgins, The Legal Bases of Jurisdiction, supra note 8, at 32.

17. Lord Macmillan in Compania Naviera Vascongado v. Christina SS, A.C. 489–497 (1938).

18. E.g. J.G. Starke, Introduction to International Law 202 (1989).

19. This is not to suggest that it will be illegal. We shall see below that several other bases of jurisdiction are accepted in international law. The existence of these in itself suggest that some form of extraterritorial jurisdiction is accepted as necessary, otherwise it would be pointless to have those bases.

20. See supra note 16.

21. See supra note 2: It seems that things are not so clear to the Americans. This essay is concerned with legislative competences only so we shall not explore this matter further.

22. S.S. Lotus case (France v. Turkey), 1927 P.C.I.J. Rep. (Ser. A No. 10, 28), at 18.

23. Some provisions in the Sherman Act take a civil law form. However, they are backed up by criminal sanctions. Civil law has not received the attention that criminal law has in this area. This essay assumes anti-trust is an element of the criminal law, at least under international law. See R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws, 33 Brit. Yb. Int'l Law 147 (1957).

24. R.Y. Jennings, supra note 23.

25. E.g. R. v. Hooper (1730) W. Kel 190: “All criminal prosecutions are local” (Lord C.J. Hardwicke)

26. “The territorial basis for circumscribing the exercise of jurisdiction is still for most purposes the best basis for defining the sphere of action of each state. But the world has moved on from being divided into a number of largely isolated nation states. Points of contact have multiplied. Modem activities readily penetrate frontiers”. N. HaverS, Good Fences make Good Neighbours: A Discssion of Problems Conceriring the Exercise of Jurisdiction, 17 Int. Law 784 (1983).

27. “The interference is irresistible that the principle of nationality extends a salient into an area which is otherwise forbidden or at least dubious ground”, supra note 23.

28. The subjective territorial principle gives a state jurisdiction over crimes commenced within the state but completed abroad. See also supra note 23.

29. J.B. Moore, A Digest of International Law vol. II at 244 (1906).

30. “In no case has an English or American court assumed jurisdiction, even under statutes couched in the most general language, to try to sentence a foreigner for acts done by him abroad, unless they were brought, either by immediate effect or by direct and continuous causal relationship, within the territorial jurisdiction of the court”, supra note 22, at 30. Note that this was said before in the ALCOA line of cases to be discussed below.

31. Supra note 23, at 158.

32. A.D. Neale, M.L. Stevens, International Business and National Jurisdiction 168 (1988).

33. D. Edward, The Practice of the Community Instituions in Relation to the Extraterritorial Application of EEC Competition Law, in R. Beiber, G. Ress (eds.), The Dynamics of EC-Law 371 (1987).

34. E.g. shooting someone across a border has the ‘effect’ in the sense of direct result that the person is injured. See, e.g. R. v. Baxter [1972] Queens Bench 1.

35. In relation to this we shall discuss the ALCOA case (United States v. Aluminium Company of America) 148 F.2d 416 (1945).

36. M. Akehurst, Jurisdiction in International Law, 46 Brit. Y.b. Int'l Law 154 (1972–1973).

37. Supra note 1, at 889.

38. It is extremely interesting to note, and it is an issue I shall come back to, that the E.C.J. did not talk of any such restriction in its Wood Pulp decision.

39. Supra note 22.

40. The court actuually used the objective territorial principle as an alternative ground for that decision. See H. Lauterpacht, The Development of International Law by the International Court 360–362 (1958).

41. A rule of international custom is not binding on any state that has persistently objected to it since its formulation. See note 15, at 74–76.

42. A.V. Lowe, Blocking Extraterritorial Jurisdiction: The British Protechtion of Interests Act, 75 AJIL 263(1981).

43. Lowe suggests another interpretation of the Lotus case that would fit in with such a view: “It seems clear that the Court in the Lotus case only intended the presumption to apply in cases such as that then before it, where there is a clear connection with the forum, accepted by international law as a proper ‘linking point’ or basis for the exercise of extraterritorial jurisdiction (…). If it intended more than this, it was probably wrong.” See supra note 42.

44. In other words we cannot justify the effects doctrine as an element of the objective territorial principle. It requires us to go a significant stage further towards (ultimately) universality than the objective territorial principle allows.

45. E.g. Australia's Foreign Proceedings (Excess of Jurisdiction) Act 1984, esp. S. 6(1) and U.K.'s Protection of Trading Interests Act 1980.

46. E.g. Nottebohm case, A.C. 347 (1946).

47. Supra note 15, at 352.

48. Supra note 16.

49. Difficulties still exist concerning the ability of a state to pierce the corporate veil of a company registered abroad. See supra note 23, at 154. See supra note 29, at 228 and see supra note 15, at 358.

50. There seems to be some confusion in terminology here. Jennings tells us that the passive personality principle is sometimes called the ‘protection’ principle, see supra note 23. Yet Shaw uses the term to mean the security principle, supra note 23, at 155.

51. See supra note 23, at 155.

52. See note 46.

53. The case is not a pure example of the protective principle since the defendant did have a British passport (fraudulently acquired) though claimed later to acquire German nationality.

54. Supra note 23. But see the case of U.S. v. Pizzarusso, 62 AJIL 975 (1968); “[…] we find the crime was complete when the false statements were made to an American consular official in Montreal.” It is unclear from the judgement how far a state's interests need be ‘harmed’ for jurisdiction to arise.

55. Supra note 32, at 17.

56. Final Report of the European Advisory Committee on Tentative Draft No. 2, Restatement of the Foreign Relations Law of the U.S. (Jurisdiction) March 3, at 15 (1961).

57. Supra note 23, at 156.

58. Supra note 15, at 359–360.

59. Supra note 23, at 154.

60. Id.,

61. Israel is reported to have based its prosecution of Eichmann on this. See P.J. Slot, E. Grabandt, Extraterritoriality and Jurisdiction, 23 C.M.L.R. 550 (1986).

62. Supra note 23, at 156.

63. Id.,

64. Supra note 33.

65. See 34 I.C.L.Q. 724 (1985).

66. Supra note 65, at 740.

67. Supra note 65, at 774–775.

68. Supra note 16, at 3.

69. Id.,

70. W. Letmin, Law and Economic Policy in America 8–9 (1967).

71. Id.,

72. Supra note 70, at 183.

73. Also of importance are the Robinson-Patman and Celler-Kefauver Acts of 1936 and 1950 respectively.

74. Supra note 32, at 37.

75. American Banana Co. v. United Fruit Co. 213 U.S. 347 (1909).

76. Supra note 35.

77. Timberland Lumber Co. v. Bank of America 549 F. 2d 597 (9 Cir. 1977).

78. Supra note 75.

79. Mr Justice Holmes, see supra note 32, at 39.

80. United States v. American Tobacco Co. 221 U.S. 106 (1911).

81. Supra note 32, at 41.

82. United States v. Hamburg-Amerikanische Packetfahrt-ActienGesellschaft 200 Fed. Rep. 806 (1911), 239 U.S. 466 (1916).

83. Supra note 32, at 42–43.

84. See J.B. Sandage, Forum Non Conveniens and the Extraterritorial Application of United States Antitrust Law, 94 Yale L.J. 1694 (1985).

85. “Scale economies which might present formidable problems for the maintenance of competition in an Australian market might prove entirely insignificant within the context of the U.S.A. (or even the U.K.). It is essential, therefore, from the viewpoint of antitrust policy, to treat scale as a a relative measure based upon the size of the market (or the economy) under consideration. For large markets are obviously better able than small markets to take advantage of scale economies without an attendant sacrifice of allocative efficiency.” See C.K. Rowley, Antitrust and Economic Efficiency 73 (1973).

86. Supra note 76.

87. Supra note 32, at 37.

88. Supra note 32, at 46.

89. Supra note 15.

90. United Stares v. General Electrical Co. 82 F. Supp. 753, at 884–885.

91. United States v. Watchmakers of Switzerland Information Centre Inc. 1963 Trade cases CCH, Para. 70600, 1963 Trade cases CCH, Para. 71352. For an excellent resume of the facts and a discussion of the implications of the case, J.A. Rahl, Common Market and American Antitrust vol. 4 ch. 6 (1970).

92. Supra note 32, at 64.

93. And also perhaps because the U.S. has lost some of its international trade predominance since World War II. See B.E. Hawk, United States, Common Market and International Antitrust vol. 1 (1984).

94. Supra note 77.

95. Supra note 32, at 37.

96. Supra note 32, at 71.

97. Supra note 32, at 72.

98. E.g. see supra note 84, at 1699–1700, “[…] interest analysis is both inappropriate and unworkable because it involves courts in weighing sensitive political and diplomatic concerns traditionally considered nonjusticiable”. Slot and Grabandt, see supra note 61, at 553.

99. See, e.g., K.M. Meesen, Antitrust Jurisdiction Customary International Law, 78 AJIL 783 (1984).

100. Laker Airways Ltd. v. Sabena 731 F.2d 907 D.C. Cir. (1984), at 995.

101. Supra note 100, at 948.

102. Outside the U.S. real concern exists as to the scope of it's antitrust regime. Sandage identifies eight notable features of it: (1) easy entry allowed by the effects doctrine; (2) more stringent antitrust laws; (3) treble damages; (4) comprehensive discovery laws; (5) jury trials; (6) contingency fees; (7) class actions; (8) private party suits. See Sandage supra note 84, at 1695.

103. L. Collins, Blocking and Clawback Statutes: The United Kingdom Approach, 1 J.B.L. 454 (1986).

104. A.C. 55 (1978).

105. See supranote 104, at 66–67.

106. See supra note 34.

107. Before that date “English law (had) grappled with aspects of monopoly and cartel power, albeit in a rudimentary and haphazard way”, see R. Merkin, K.Williams, Competition Law: Antitrust Policy in the U.K. and the E.E.C. 5 (1984).

108. Supra note 107, at 11.

109. See generally Halsbury's Laws of England, Trade and Labour vol. 47 (1984).

110. See supra s(s). 2(3) and 35(4).

111. Supra note 107, at 469–471.

112. These Acts now define the jurisdiction of the Monopolies and Mergers Commission.

113. See note 107, at 471.

114. See supra note 12, at 64.

115. British Nylon Spinners v. I.C.I. 1 Chancery Reports 19 (1955).

116. See generally R. Whish, Competition Law 394–395 (1985).

117. These powers were of course used in British Airways Board v. Laker Airways, 3 All E.R. 375 (1983). In that case J. Parker although noting some grounds of potential injustice to the U.K. firms arising from the action (such as the trebling of damages) decided that it would be unfair on Laker to give temporary injunctions against court orders made in the U.S. (where in fact Laker had brought his case under S(s). 1 and 2 of the Sherman Act, and under the Clayton Act). An order was made by the Secretary of State following this decision (Protection of Trading Interests (U.S. Anti-Trust Measure) Order, S.I. 1983 No. 900). In light of this the court of appeal, when the Laker case reached, reimposed the injunctions against Laker.

118. Australia, Belgium, Canada, denmark, Finland, France, the Federal Republic of Germany, Way, the Netherlands, New Zealand, Norway, The Philipppines, South Africa, Sweden, Switzerland and the United Kingdom. See A.V. Lowe, The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution, 341.C.L.Q. 727 (1985).

119. Advocate General Darmon notes this in his opinion in the Wood Pulp case.

120. See note 132.

121. A.G. Mayras in his opinion in I.C.I. Ltd. v. Commission, 1 C.M.L.R. 557–604 (1972).

122. J. Steiner, Textbook on EEC Law 92 (1988).

123. Supra note 33, at 356.

124. Cases 56/64, 58/64, 1 C.M.L.R. 418 (1966).

125. See supra note 3, at 418.

126. Supra note 33, at 356.

127. J.-F. Bellis, International Trade and the Competition Law of the European Economic Community, 16 C.M.L.R. 647–649 (1979).

128. Supra note 33.

129. Case 22/71 1 ECR 949–959 (1971).

130. See, e.g., Bellamy, CD. Child, Common Market Law of Competition 120 (1987).

131. See M. Waelbroeck, The European Approach, in C.J. Olmstead (ed.), Extra-territorial Application of Laws and Responses Thereto 74–76 (1984). D.G.F. Lange, J.B. Sandage, The Wood Pulp decision and its implications for the scope of EC competition law, 26 C.M.L.R. 137 (1989), state that in Beguelin “the court offered some oblique support for the effects test without actually passing upon its validity”. They cite Waelbroeck's article as authority for this proposition. It is my reading of Waelbroeck's article that he does not think that case supports the effects doctrine in EEC law. See at 97 of Waelbroeck's article.

132. Case 48/69 2 E.C.R. 619 (1972) and 1 C.M.L.R. 557 (1972).

133. Re Aniline Dyes Cartel, 1 C.M.L.R. 23 (1969).

134. Supra note 133, at 28.

135. E. Steindorff, Case Note, 9 C.M.L.R. 504 (1972).

136. D.E. Goyder, E.E.C. Competition Law 387 (1986). See also Hawk supra note 93, at 50–52: He criticises the Community legal regime for not clearly distinguishing between subject matter jurisdiction (or scope of application) and personal jurisdiction.

137. See supra note 135.

138. The court rejected an appeal based on the international law doctrine of self-help in cases 90 and 91/63 Commission v. Luxembourg and Belgium I ECR 625 (1964).

139. Case 41/74 Van Duyn v. Home Office, ECR 1337 (1974) and 1 C.M.L.R. 1 (1975).

140. See supra note 132, at 604–605.

141. Supra note 132, at 603.

142. Supra note 132, at 603.

143. At p 604 of the opinion Mayras asks himself whether we must insist that a ‘constituent element' of the offence takes place within the common market. He has this to say:“[…] should we not accept that the very effect of the infringement is one of the constituent elements and probably even the essential element”. I shall come back 10 this point.

144. Supra note 132, at 629.

145. Supra note 33, at 369.

146. Case 48/69 I.C.I, v. Commission 2 ECR 662 (1972). Also see Steindoff's analysis of this aspect supra note 135, at 506.

147. Supra note 146, at 662.

148. Cases 6, 7/63 Istituto Chemioterapico Ilaliano & Commercial Solvents v. Commission, E.C.R. 223 (1974).

149. Case 6/72 Europemballage Corp. and Continental Can Company Inc. v. Commission, 12 C.M.L.R. 199(1973).

150. Case 405/84 Zinc, Commission Decision of 6th August 1984, 2 C.M.L.R. 108 (1985).

151. Aluminium Imports from Eastern Europe O.J. L92/37 (1985).

152. See e.g., I. van Bael, J. Bellis, Competition Law of the EEC 70–73 (1987).

153. Supra note 136, at 389.

154. Supra note 33, at 365, 367–368.

155. In its Eleventh Report on Competition Policy, Application of the competition rules to non-community undertakings (1981), the Commission clearly indicated such a view.

156. Wood Pulp, Commission Decision of 19 Dec. 1984, 0.J. L85/1 (1985) 3 C.M.L.R. 474 (1985). On both the Commission's decision and the ECJ's judgement see B. Burrows, EEC law- Extra-territorial Scope, Jur. Rev. 102–104 (1989) and J.E. Ferry, Towards completing the charm: the Wooclpulp Judgement, 10 E.C.L.R. 58–73 (1989) and M. Friend, The Long Arm of Community Law, E.C.R. 169–175 (1989). See also Lange supra note 131 and A.V. Lowe, International and the Effects Doctrine in the European Court of Justice, 48 Cam. J.L.9–11 (1989) and F.A. Mann, The Public International Law of Restrictive Practices in the European Court of Justice, I.C.L.Q. 375 and A.N. Vollmer, J.B. Sandage, The Wood Pulp Case, 23 Int. Law 721 (1989).

158. Supra note 156: 3 C.M.L.R. 499, 474–500(1985).

159. Supra note 3, at 914.

160. Id.,

161. Id.,

162. Id.,

163. Id.,

164. Id.,

165. Supra note 3, at 914–915.

166. A/G Darmon, supra note 3, at 917.

167. Id.,

168. Supra note 3, at 925.

169. Supra note 3, at 928.

170. Supra note 3, at 931.

171. Id.,

172. Id.,

173. Of course the main uncertainty is the level of control required by a parent over its subsidiary.

174. Supra note 3, at 933.

175. Supra note 3, at 939.

176. A.N. Vollmer, J.B. Sandage see supra note 157, at 723.

177. Supra note 3, at 941.

178. M.Friend, supra note 157, at 171.

179. N. Burrows, supra note 157, at 103–104, takes the view that the best way to understand the Court's decision is by reference to A/G Darmon's opinion. She states that quite clearly that in her opinion the decision is ‘effects’ based. However, it is unclear whether the effects she has in mind are akin to those found in ALCOA, or whether they require to be more direct. It is therefore unclear whether this essay disagrees in ALCOA, or whether they require to be more direct. It is therefore unclear whether this essay disagrees with her in substance, or merely in terminology. A. V. Lowe, supra note 157, takes an entirely different view. According to him A/G Darmon takes an ‘effects’ approach, but the Court does not. According to him ‘implemented’ means physically acted. Accordingly his paper demonstrates a narrow concept of jurisdiction, much along the same lines as traditionally expressed by the United Kingdom. He finds evidence for his view in the fact that all the undertakings that were finally found guilty of Article 85 violations by the cort acted in the communities through subsidiaries or agents. But Low' view suffers one serious flaw; it is impossible to reconcile Paragraph 17 with it. There it was made clear that the Court was not relying on physical conduct in the Community to found its claim to jurisdiction.

180. This is in fact the view taken by F.A. Mann, supra note 157.

181. See J.E. Ferry, supra note 157, at 65.

182. J.E. Ferry, supra note 157, at 65–66.

183. Supra note 157, at 66.

184. Supra note 3, at 942.

185. Id.,

186. J.E. Ferry, supra note 157, at 71.

187. The U.K. may be on the verge of a radical change in its competition policy. Its White Paper, Opening Markets: New Policy on Restrictive Trade Practices, Cm 727 July 1989, stated “The Government has considered the appropriate jurisdiction for the new prohibition. While the proposed system involves a prohibition drawn in terms of effects, that does not mean that the jurisdiction should necessarily depart from the principle of territoriality and follow the so-called ‘effects’ doctrine […]. But it is recognised that the place where the agreement having an anti-competitive effect is made is not always the determinative factor. The government are considering therefore applying the prohibition not only to agreements made in the U.K. but also to those implemented within the U.K.”. It would be interesting to know exactly how the term ‘implemented’ is to be defined. Unfortunately there has been no consideration of this.

188. See note 118, at 728.

189. Supra note 93, at 17–18.

190. F.A. Mann, supra note 157, at 377.