Antitrust

S H E A R M A N & S T E R L I N G L L P | 6 9 14. See, e.g., In re: Refrigerant Compressors Antitrust Litig., No. 2:09-MD-02042, 2016 WL 6138600 (E.D. Mich. Oct. 21, 2016) (holding that a refrigerator manufacturer could not maintain antitrust action against foreign manufacturers of refrigerant compressors based on purchases made by a joint venture partially owned by the plaintiff); In re Auto. Parts Antitrust Litig., No. 12-MD-02311, 2017 WL 7689654, at *9 (E.D. Mich. May 5, 2017) (finding that foreign auto parts suppliers that sold components to automakers abroad were not engaged in import commerce because it was the automakers, not the suppliers, that imported finished products into the United States). 15. The import commerce standard of Hui Hsuing has been applied to civil actions by district courts within the Ninth Circuit. See, e.g., In re Capacitors Antitrust Litig., No. 14-CV-03264-JD, 2018 WL 4558265, at *4 (N.D. Cal. Sept. 20, 2018) (denying summary judgment in case involving "capacitors sold and shipped by a foreign defendant to a foreign [] entity, and incorporated abroad into finished goods that were sold into the United States"); In re: Cathode Ray Tube (CRT) Antitrust, No. C-07-5944 JST, 2016 WL 5725008, at *4 (N.D. Cal. Sept. 30, 2016) (denying summary judgment where plaintiffs imported finished products containing price-fixed cathode ray tubes); Costco Wholesale Corp. v. AU Optronics Corp., No. C13- 1207RAJ, 2014 WL 4718358, at *3 (W.D. Wash. Sept. 22, 2014) (denying summary judgment because "Costco's purchases from foreign conspirators of finished products containing price- fixed panels are import commerce, regardless of the supply chain that brought the finished product to the conspirator who made the sale."). 16. Hui Hsiung v. United States, 135 S. Ct. 2837 (2015); Motorola Mobility LLC v. AU Optronics Corp., 135 S. Ct. 2837 (2015). 17. Case C-413/14 P, Intel v. Commission (EU:C:2017:632). 18. Cases T- 422/14, Viscas v. Commission (EU:T:2018:446), Case T- 444/14, Furukawa Electric v. Commission (EU:T:2018:454) and Case T- 447/14 NKT v. Commission (EU:T:2018:443). 19. Case C-191/16, Romano Pisciotti v. Bundesrepublik Deutschland (EU:C:2018:222). and it is not a defense for undertakings to claim that — seen in isolation — an anti- competitive practice does not have an effect on competition in the EU if the total conduct does have such an effect. Following the Capacitors cartel decision in March 2018, Commissioner Vestager reasserted that the Commission "will not tolerate anti-competitive conduct that may affect European consumers, even if all anti-competitive contact takes place outside Europe" — companies should expect the EC to continue with investigations that may at first glance appear to go beyond the scope of EU law, including by applying the qualified effects doctrine. THE EU — SUPPORT FOR EXTRATERRITORIAL APPLICATION OF CRIMINAL CARTEL REGIMES The EU has also shown that although the EU cartel regime is administrative rather than criminal in nature, in itself that does not protect EU nationals from extradition where the national laws of the Member State allows for extradition to take place. In the April 2018 Pisciotti 19 judgment, concerning the first successful extradition of an EU citizen to the U.S. for criminal cartel proceedings, the CJEU paved the way for further successful extradition attempts. Pisciotti, an Italian national, was under investigation in the U.S. in relation to his involvement in the Marine Hose cartel. For this purpose, the U.S. authorities requested his extradition under the EU-U.S. extradition agreement. In June 2013, Pisciotti was arrested in Frankfurt's airport on a flight stopover. Germany approved the extradition. Following conviction and serving his prison sentence in the U.S., Pisciotti brought an action in the German courts seeking a declaration that Germany was liable for damages for granting his extradition, on the basis that Germany would not have extradited one of their own citizens and so had infringed the fundamental EU law principle of equal treatment of EU citizens. However, the CJEU held that the key issue was whether Germany could have adopted a less prejudicial course of action by surrendering Pisciotti to Italy rather than extraditing him to the U.S. An extraditing Member State must notify the EU national's home state of the imminent extradition. As required, the Italian authorities had been kept fully informed of Pisciotti's situation by the German authorities and they had not sought his surrender. Further, the right of free movement can only be restricted by a legitimate objective, and in this case that objective was to ensure that Pisciotti did not escape prosecution. Given that the Italian authorities had not sought to intervene, this legitimate objective could not have been attained by less restrictive means and therefore the extradition was lawful. Although the Pisciotti case is fact-specific, it serves as a timely reminder that jurisdictions with criminal cartel regimes such as the U.S. will prosecute against nationals of all states, and that the lack of an EU-wide criminal cartel regime and the existence of EU rights such as freedom of movement of which EU nationals benefit, do not prevent EU nationals from being extradited if such extradition is possible on the basis of the laws of the Member State where they are located and the proper procedures have been followed.

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