This landmark decision is the first time that the Court of Justice has ordered a party abusing a dominant position to correct that abuse constructively, by requiring the monopolizer to sell to the complaining and injured party sufficient quantities to satisfy that party's requirements. Although not novel when compared with United States antitrust law, this is one large step beyond previous decisions within the EEC. The wide spectrum of remedies available under American law, ranging from criminal prosecution, to administrative orders, and to civil suits where the broad powers of equity are available, has not previously been applied within the Common Market. The Commission has been limited to declaring practices unlawful, imposing fines and issuing cease and desist orders. Commercial Solvents may well be an indication from the European Court that the American arsenal against antitrust is recognized as necessary and effective in combatting the growing problems of a more unified Community economy. Additionally, the scope of the definition of what is necessary to "affect trade between Member States" as required by article 86 is stretched to include more tangential effects than in earlier cases. Refusal to sell by a market-dominating enterprise is made an abuse, although not specifically listed in the text of article 86. This may permit other practices, heretofore outside the reach of EEC antitrust law, to be classified as abuses under article 86 and brought within the regulation of the Community. It is no longer necessary for the complaining party to have sales within the Common Market, only that exports from the EEC are choked off by an abuse of a dominant position. After Commercial Solvents it would seem that little proof, if any, is required to show that trade between Member States is affected." The Court has broadened the reach of its sanctions by effectively eliminating this defense; any party trading within the Community affects trade between Member States and may be subject to the controls of article 86 if found to be abusing their dominant position. The abuse may be by a corporation based outside the Common Market which only exports raw materials into the Community through a subsidiary. Based on the instant case, the next decision might conceivably reach the foreign corporation directly, dropping all pretenses of requiring economic unity of parent and subsidiary. One thing is certain, the scope of the authority of the Court and its interpretations of the antitrust provisions of the EEC Treaty are rapidly reaching beyond the geographical confines of the Common Market.
Mark A. Schneider,
8 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol8/iss3/9