InnoLux v AU Optronics: Comparing territorial limits to EU and US public enforcement of the LCD cartel

Abstract

This article assesses the current position on territorial limits to public cartel enforcement in the European Union and the USA on the basis of the decisions and court rulings concerning the global LCD cartel. It considers the basis for asserting jurisdiction, the scope of the cartel conduct that is being sanctioned and the methodology for calculating the cartel fine. A comparison between the two jurisdictions indicates that while the European Commission is moving closer to (and according to some over) the line of lawful extraterritorial cartel enforcement, the US Department of Justice still maintains a much more expansive approach. The courts in both the EU and the USA confirmed the legality of the authorities' long territorial reach and their wide discretion in determining the fines. It is submitted that these legal precedents are a cause for concern as they do little to move the Commission and DOJ in the direction of greater self-restraint in the enforcement of international cartels, something which is becoming more and more important in view of the increasingly crowded global arena of cartel enforcement.