‘Extraterritoriality’ in European Law: Airfreight and Beyond

Air carriers operate, almost by definition, in an international environment. Under air services agreements (ASAs) concluded by European Union (EU) Member States with third countries, with or without the involvement of European institutions, many non-EU airlines offer flights to or from the Union. However, the correlative increase in competition has not only positive effects, e.g., a wider offer and more advantageous flight rates. The fact that the obligations imposed on – and, in general, the conditions applicable to – non-European carriers in their respective countries of origin are different from those that weigh on European airlines leads to situations in which EU and non-EU carriers do not compete on equivalent terms. Furthermore, anticompetitive behaviour on the part of the airlines cannot be ruled out. The question then is whether and to which extent European legislation is applicable to non-EU carriers, both in terms of competition law and sector-specific regulations. The present article aims at reviewing the current state of ‘extraterritorial’ application of European law, mainly from an antitrust perspective, and it does so on the basis of a thorough analysis of a case currently pending before the General Court (GC), where the jurisdiction of the Commission has been challenged precisely for sanctioning non-EU carriers for acts performed outside the Common Market.The present study has been carried out in the framework of the research project ‘Transport Faced with the Challenges of Technological Development and Globalization: New Solutions in the Field of Liability and Competition’ (Ref. PID2019-107204GB-C33/ AEI/10.13039/501100011033), funded by the Spanish State Research Agency (main researchers: M.V. Petit-Lavall and A. Puetz