Cite as 532 F.2d 674 (1976)
VW and Subsidiary (as well as the Federal Republic of Germany) urge that this import ban offends Article 16 of the German/American Treaty of 1954,[1] and Articles I and III of the General Agreement on Tariffs and Trade (GATT),[2] because it restricts German manufacturers but not American automobile manufacturers, who remain free to sell cars with factory-installed air conditioners.
The district court was apparently of the view that the treaties had no application, see Calnetics Corp. v. Volkswagen of America, Inc., 353 F.Supp. at 1222 n.5, because the relief granted did not “discriminate against the products of Germany in favor of United States producers or manufacturers.” Rather, the relief granted was merely “intended to deal with and is aimed at the maintenance of a free, open and competitive market in automobile air conditioners for Volkswagen automobiles.” 353 F.Supp. at 1222.
The district court apparently considered only the effect of its decree on competition within the submarket it had defined; on that basis, the decree did not “discriminate” against a German manufacturer, because the import ban was merely one of a series of restrictions aimed at controlling the purchasing and manufacturing activities of a domestic corporation, Volkswagen of America.
This reasoning is based upon an unduly limited market concept. The import ban affects not only competition for the sale of domestic automobile air conditioners but also competition for the sale of automobiles. The record demonstrates that an important factor in the sale of automobiles is the availability of integrated, factory-installed air conditioning. The ban discriminates against the German automobile manufacturer because it forbids him to sell in the United States cars with factory-installed air conditioning while imposing no similar restriction on domestic automobile manufacturers.
An exception in GATT does permit restrictive measures “necessary” to comply with United States antitrust laws.[3] But because the district court did not consider the treaties relevant, it did not attempt to justify the import ban under this exception.
Apart from treaty provisions, the effect of the import ban would be anticompetitive with respect to competition for the sale of automobiles. While courts must disregard such incidental effects in determining the illegality vel non of an alleged antitrust violation,[4] they should consider them when fashioning relief.[5]
Similarly, the ban will have at least a short-term anticompetitive effect with respect to competition for the sale of air conditioning equipment, because Volkswagenwerk A.G., the German manufacturer, will vanish as a potential market entrant, thus eliminating any downward price pressure the threat of its entry into the market might exert.
If, on remand, there is a jury verdict in favor of Calnetics on one or more of its antitrust claims against VW and Subsidiary, and if the district court makes the further determination that Calnetics is entitled to equitable relief under the traditional standards governing the availability of relief under § 16 of the Clayton Act, then the court should reassess the necessity for an import ban in light of (1) the applicability of the treaties, (2) the unavailability of the divestiture remedy, (3) the anticompetitive
- ↑ 7 U.S.T. 1839, 1857, T.I.A.S. No. 3593 (1956). The United States as amicus takes the view that the import ban does not offend the treaty or GATT.
- ↑ 61 Stat. Pt. 5, at A-5, A-12 through A-13, A-18 through A-19; T.I.A.S. No. 1700, 55–61 U.N.T.S. (1947).
- ↑ Article XX(I)(d) of GATT, 61 Stat. Pt. 5, at A-61.
- ↑ Cf. United States v. Philadelphia National Bank, 374 U.S. 321, 370–71, 83 S.Ct. 1715, 1745, 10 L.Ed.2d 915, 948–49 (1963).
- ↑ The relief granted must, of course, be effective to redress the violation and restore competition. United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 326, 81 S.Ct. 1243, 1250, 6 L.Ed.2d 318, 325 (1961).
