Izvorni znanstveni članak
European Antitrust Law in the Regulation Rome II
Vilim Bouček
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The author analyses the special provisions of Article 6, paragraphs 3 and 4 of the Rome II Regulation, which constitute new European private antitrust law. After an outline of the legal solutions preceding these provisions - those contained in the national regulations concerning private international law of certain EU member states, the case law of the Court of the EU based on primary EU law, i.e. the provisions of Articles 101 and 102 of the Treaty on the Functioning of the European Union (ex Articles 81 and 82 of the EC Treaty), and particularly Article 137 of the Swiss Private International Law Act of 1987 - the author analyses the said provisions of the Rome II Regulation, which protect free competition in terms of private international law.
Although Rome II regulates various aspects of protection of free competition, as regards the determination of applicable law for private law consequences of a breach of unfair competition clauses and restrictions of free competition, Article 6 of Rome II also applies locus laesionis. In principle, this provision calls for the application of lex loci laesionis, i.e. lex mercati; in other words, the law of the country in which the market has been affected. The author emphasises that the provision of Article 6, paragraph 3, point a should be interpreted in accordance with the above mentioned provisions of national laws of certain member states, case law of the Court of the EU, and of the said Swiss law, i.e. with regard to the law of the country „directly and substantially“ affected by the restriction of free competition.
As regards restrictions of free competition in terms of a breach of antitrust law affecting more than one member state, Rome II permits the application of the law of the country in which the defendant is domiciled (lex fori) on the basis of an escape clause. This is possible under the assumption that the market of that member state is in one of the countries directly and substantially affected by the restriction of free competition (Article 6, paragraph 3, point b, up to semi-colon). The author also points out a novelty in Rome II. If the claimant is suing more than one defendant, the claimant can choose to base the claim on lex fori if the restriction of free competition also affected the market in the country of the court (Article 6, paragraph 3, point b, after semi-colon).
When it comes to the tort provisions pertaining to restrictions of free competition, party autonomy is not permitted (Article 6, paragraph 4 of Rome II).
It can be expected that Article 6, paragraphs 3 and 4 of Rome II, as provisions of secondary EU legislation, will supplement the provisions of European antitrust private international law contained in Articles 101 and 102 of the Treaty on the Functioning of the EU (ex Articles. 81 and 82 of the EC Treaty), and that they will help assert in practice the private international law aspects of competition law.
Ključne riječi
tort conflicts; acts restricting free competition (antitrust); Regulation Rome II
Hrčak ID:
100073
URI
Datum izdavanja:
28.12.2012.
Posjeta: 2.730 *