FTC und DOJ haben ihre International Antitrust Guidelines [PDF] überarbeitet. Dort findet sich jetzt [etwas] mehr zur internationalen Behördenzusammenarbeit aus US-Sicht und auch zum Verständnis der dortigen Behörden von der Anwendbarkeit des US-Rechts auf Auslandssachverhalte. Das Ganze ist mit Beispielen versehen. Auf den Entwurf der neuen Guidelines konnte im vergangenen Jahr kommentiert werden; die Kommentare der ABA Antitrust Section [PDF] sind lesenswert und zeigen, wie umstritten einige der Thesen aus den Guidelines in den USA sind.
Hier eines der genannten Beispiele (S. 22 ff.):
Illustrative Example C
Situation: Corporation 1 and Corporation 2 have factories in Country Alpha where they manufacture Component X, a piece of high-tech hardware used in electronic products. Corporation 1 and Corporation 2 agree to raise prices for Component X sold to finished product integrators. These integrators have factories in Country Beta where they incorporate Component X into finished electronic products sold in the United States.
Discussion: Assuming Corporation 1 and Corporation 2 do not sell Component X in or for delivery to the United States, their conspiracy to fix the prices of Component X is conduct involving wholly foreign commerce, that is, commerce between Countries Alpha and Beta, and thus would not fall within the FTAIA’s import commerce exclusion. The conduct would still fall within the reach of the Sherman Act if it has a (1) direct, (2) substantial, and (3) reasonably foreseeable effect on U.S. import commerce in finished electronic products that incorporate Component X.
Assessing the conduct’s effects can be a fact-intensive inquiry. Here the Agencies would collect and analyze evidence to determine whether the price fixing of the component had an effect on U.S. import commerce. If it does, the Agencies would further analyze the evidence and collect additional evidence, as necessary, to determine: (1) whether the price fixing was the proximate cause of that effect, (2) whether the effect was substantial, and (3) whether that effect was a result of the price fixing that was foreseeable to a reasonable person making practical business judgments.
The fact that the price-fixed component was first sold to integrators in Country Beta, where it was incorporated into finished electronic products which were then sold in, or for delivery to, the United States would not render indirect an effect on import commerce in those products. Nor would the fact that the finished products were sold around the world or that Corporation 1 and Corporation 2 were unaware or indifferent to whether the finished products were sold in the United States render insubstantial or not reasonably foreseeable the effect on import commerce. In this context, substantiality is not a question of proportion. So long as the effect on import commerce is substantial, it does not matter if that effect is smaller than the conduct’s effect outside the United States. Reasonable foreseeability is an objective standard, which asks not whether the conspirators actually foresaw the effect, but rather whether a reasonable person
would foresee the effect on import commerce.
The relative size of Component X as a cost component of the finished electronic products may be relevant to determining whether the pricefixing conduct has the requisite effect, but it is not dispositive. For example, Component X may account for a large portion of the cost of the finished product, but competition from substitutes for the finished electronic products that do not incorporate Component X makes it unlikely that a price increase on Component X will affect import commerce in the finished products. Conversely, Component X may account for a small fraction of the cost of the finished product but the finished electronic product pricing is closely tied to input costs due to market conditions or contractual arrangements, or for other reasons. Thus, any price increase on Component X could, as a practical matter, have the requisite effect on import commerce in the finished electronic product.
Evidence that the conspirators actually expected their conduct to cause an effect on import commerce in the finished products would help to show that a direct, substantial, and reasonably foreseeable effect existed. Such evidence might include Corporation 1 and Corporation 2’s contacts with purchasers in the United States, including negotiations regarding Component X pricing, as well as Corporation 1 and Corporation 2’s discussing market conditions and tracking sales of the finished products in the United States. But the presence or absence of such evidence would not fundamentally alter the Agencies’ analysis.