Zur Interessenabwägung im Rahmen des Auswirkungsprinzips

Abstract

On balancing of interests within the effects-doctrine

In competition matters, the effects doctrine establishing state jurisdiction over conduct outside its territory that has or is intended to have foreseeable, direct and substantial effects within its territory is generally accepted. Public international law does not require a balancing of interests in international competition cases and it does not contain rules of priority in cases of concurring international jurisdictions established under the effects doctrine. In the absence of state practice in the United States of America, the European Union and Germany supporting an interest-balancing requirement under customary international law or of rules of priority between concurring international jurisdictions, and in view of the fact that the development of such rules is highly unlikely in a foreseeable future, emphasis should be placed, as suggested by international organizations such as the WTO and the OECD and in numerous bilateral co-operation agreements on competition, on jurisdictional self-restraint as a matter of comity where this is feasible. Further developing instruments at multilateral, bilateral and unilateral levels and where feasible creating new instruments of which the use remains voluntary is likely to facilitate further resolving or mitigating most international conflicts in this field. As far as Germany is concerned, there is at this time no urgent need to develop formal procedures how to deal with cases of international conflicts in competition matters. If such procedures should turn out to be appropriate and desirable in the future, decision making should remain with the Federal Cartel Office. Only in cases of international conflict, in which substantial political issues play a role, the Minister of Economics and Energy should be allowed to intervene with the option to end proceedings envisaged by the Federal Cartel Office to prosecute the competition offense in question. The actual division of functions between the Federal Cartel Office and the Minister in merger cases could serve as a model.