European Public Law: EU eJournal最新文献

{"title":"Trust and the Law in the European Union","authors":"Anthony Arnull","doi":"10.2139/ssrn.3639262","DOIUrl":"https://doi.org/10.2139/ssrn.3639262","url":null,"abstract":"The principle of trust is assuming increasing importance in the case law of the European Court of Justice. But what does trust mean? Should we consider the European Union itself to be trustworthy? If not, how might the situation be retrieved?","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130087498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Competition Policy in Transition: Exploring Data Portability’s Roles","authors":"S. Vezzoso","doi":"10.2139/ssrn.3634736","DOIUrl":"https://doi.org/10.2139/ssrn.3634736","url":null,"abstract":"The paper explores data portability from an EU competition policy perspective as set against an institutional and conceptual background swept by gales of transformation. The looming competition policy reform package includes an ex ante regulatory framework aiming to impose proportionate constraints on the behavior of particularly powerful, structuring digital platforms, as well as a further competition tool possibly inspired by the UK market investigation regime. This brief contribution takes stock of data portability a decade after the Obama Administration first launched a series of so-called “My Data” portability initiatives in the US. In the EU, significant developments in this respect have been the introduction of the data portability right under the General Data Protection Regulation and, more recently the data porting framework under the Free Flow of Non-Personal Data Regulation. Specifically, the paper points out that, from a competition policy perspective, data portability can play three distinct roles, namely it can allow for switching, enable data fluidity and thereby promote competition and innovation especially in the context of digital ecosystems, as well as enhance consumer empowerment in the digital economy overall. These different roles are than analysed against the background of: \u0000 \u0000(1) traditional competition law, \u0000 \u0000(2) a market investigation regime and \u0000 \u0000(3) an ex-ante regulatory framework targeting large online platforms with gate-keeping power.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130897446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Commodity or Propriety? Unauthorised Transfer of Intangible Entitlements in the EU Emissions Trading System","authors":"B. Holligan","doi":"10.1111/1468-2230.12535","DOIUrl":"https://doi.org/10.1111/1468-2230.12535","url":null,"abstract":"This article argues that the law governing transfer of allowances within the EU Emissions Trading System (EU ETS) should place greater weight upon transactional (and environmental) integrity, even over market liquidity. More broadly, it reflects on the role played by registries in sharing or concealing information about the material world. Although property rules enable market activity through the creation of an abstract carbon commodity, they must also link past to future entitlements in a just way. In emissions trading markets, justice in private transactions is intimately connected to public questions of environmental justice. The relevant EU Regulation prioritises facility of transfer over protection of existing holders, insulating registered entitlements from prior proprietary claims. This approach ignores the important connections between history, integrity and responsibility in both public and private spheres. A preferable response would be to distinguish between transactional and register error, protecting against register mistakes, but not transactional defects.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126027315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Settlement of International Commercial Disputes Post-Brexit, or: United We Stand Taller","authors":"Giesela Ruhl","doi":"10.4337/9781800376588.00014","DOIUrl":"https://doi.org/10.4337/9781800376588.00014","url":null,"abstract":"The European market for the settlement of international commercial disputes is currently dominated by London. According to official statistics, about 80% of the cases brought before the London Commercial Court involve at least one foreign party. And in about 50% of the cases both parties are foreign. Obviously, the London Commercial Court is a popular forum for the settlement of international commercial disputes. And, obviously, it has an international appeal that is – at least in Europe and at least thus far – second to none.<br><br>The remaining EU Member States, however, are not sleeping. In fact, over the course of the last years the prospect of Brexit has induced some of them to take measures designed to make their civil justice systems more attractive for international commercial parties: Germany, for example, established two first instance, international commercial chambers at the Regional Courts in Frankfurt and Hamburg in 2018 which offer to conduct proceedings in English. France created an English language chambre internationale at the Paris Court of Appeal in March 2018 which complements and adds a second instance to the English language chamber at the Paris Commercial Court that has been operating since November 2010. The Netherlands inaugurated the English language Netherlands Commercial Court and the Netherlands Commercial Court of Appeal in January 2019. And other countries, notably Belgium and Switzerland are contemplating the establishment of one or more specialized courts to deal with international disputes. Quite clearly: the European market for international commercial litigation is on the move. And while some of the above mentioned chambers and courts were in the making before the UK decided to leave the EU in 2016, there can be little doubt that the prospect of Brexit has fuelled the development. <br><br>The interesting question, however, is whether the recent trend to establish international commercial chambers and courts will actually yield any success? Will companies decide to come to the continent – rather than to London – to settle their disputes after Brexit? As a matter of principle, the odds are not too bad: After all the UK will lose its access to the European Judicial Area once Brexit becomes fully effective, namely when the transition period provided for in the Withdrawal Agreement expires. English court proceedings will then no longer benefit from the many European Regulations that ease the settlement of international disputes and judicial cooperation in cross-border civil matters. At least for companies which seek access to the European Judicial Area, Brexit will, therefore, make it less attractive to settle a dispute in London.<br><br>The following chapter takes this observation as an occasion to explore the consequences of Brexit for the settlement of international commercial disputes in more detail. It argues that no court in the remaining Member State seems in a position to present itself as a serious altern","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123953188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Price for a Seat at the ISDS Reform Table – CJEU’s Clearance of the EU’s Investment Protection Policy in Opinion 1/17 and Its Impact on the EU Constitutional Order","authors":"S. Hindelang","doi":"10.2139/ssrn.3548204","DOIUrl":"https://doi.org/10.2139/ssrn.3548204","url":null,"abstract":"The CJEU in Opinion 1/17 concluded that the CETA’s investment provisions are in compliance with the EU Treaties; a decision not just of considerable importance for the Commission’s investment protection policy and reform agenda. It also shows significant consequences for the EU constitutional order. This chapter seeks to explore the said consequences – or the price, so to say – which will come with clearing the way for ISDS in EU agreements in three dimensions. First, the CJEU possibly finding itself more often in judicial conflicts with adjudicative bodies established on the basis of EU agreements, ISDS may sooner or later face its ‘Kadi moment’. Second, by allowing for different standards for reviewing the exercise of sovereign power inside and outside the EU judicial system, Opinion 1/17 gave its blessings to a reshape of the Union’s rule of law. Third, ‘strategic ambiguity’ having been displaced by clarity, the EU unconstitutionality of many EU Member State BITs with third countries as well as of the application of the ECT in disputes with non-EU investors can hardly be denied.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128232836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judicial Review of the Acts of EU Agencies: Discretion Escaping Scrutiny?","authors":"Annalisa Volpato","doi":"10.2139/ssrn.3500731","DOIUrl":"https://doi.org/10.2139/ssrn.3500731","url":null,"abstract":"The creation and empowerment of European Union (EU) agencies constitutes one of the most momentous developments of the EU composite administration. In the last decades, the delegation of powers to EU agencies grew exponentially both in quantitative and qualitative terms. As a result of this evolution and of the more permissive position of the Court of Justice of the EU in the Short selling judgment, EU agencies today are called upon to make relevant political, economic and social choices even in highly sensitive and contentious domains. The possibility to challenge their acts has been finally sanctioned in primary law. The exercise of their powers, however, is subject only to a limited scrutiny by the Court, which has recognized broad discretion to these bodies in carrying out complex and technical assessments. Analysing the approach of the Court to the review of European Chemical Agency’s (ECHA) discretion, this paper reflects upon its effectiveness and its implications for the accountability and legitimacy of agencies within the EU institutional framework.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121458490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Concept of Abuse of Law in European Taxation: A Methodological and Constitutional Perspective","authors":"W. Schoen","doi":"10.5040/9781509929122.ch-009","DOIUrl":"https://doi.org/10.5040/9781509929122.ch-009","url":null,"abstract":"In two recent cases “T Danmark” and “N Luxembourg 1” the European Court of Justice delivered landmark judgments on the impact of the concept of “abuse of law” in the area of taxation. In these judgments the Court promoted the recurrent notion that “European law cannot be relied up-on for abusive or fraudulent ends” to the rank of a “general principle” of European law in matters of direct taxation. This has a profound effect on the legal framework for taxpayers and tax authorities as such a “general principle” has the power to override both secondary EU law and national tax legislation. According to the Court, it has to be applied irrespective of conflicting provisions in EU tax directives and without any explicit basis under domestic tax law. This article, which has been written to celebrate Professor Judith Freedman on the occasion of her retirement at Oxford University, challenges the findings of the Court, which create confusion and uncertainty both from a methodological and a constitutional perspective. This article proposes to recognize a concept of “abuse of law” at the level of secondary EU law, thus leaving the hierarchy of norms under European law and the interaction between EU law and national legislation intact.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126697178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Solidarity in the Case Law of the European Court of Justice – Opportunities Missed?","authors":"D. Schiek","doi":"10.2139/ssrn.3523787","DOIUrl":"https://doi.org/10.2139/ssrn.3523787","url":null,"abstract":"Since the EU Treaties constitute solidarity as one of the EU’s fundamental values (Articles 2, 3 (2) TEU). In a Community of law, the validity of this value depends on its capacity as a legal principle. This chapter asks what, if anything, the case law of the Court of Justice (ECJ) contributes to the dis-cursive exegesis of solidarity as a principle of EU Constitutional Law. In order to answer this ques-tion, it offers an empirical analysis of the Court’s case law framing the notion of solidarity, providing a unique database evaluating all 122 cases elaborating on the concept. The analysis distinguishes three categorial types of solidarity (solidarity as charity, as mutual obligation and as risk mitigation) and three functional types of solidarity (embedding individual rights, embedding the Internal Mar-ket, rejecting limiting effects of national solidarity). The chapter identifies a number of missed op-portunities, and a high degree of in-consistency. A more assertive and consistent approach to soli-darity could, however, contribute to supporting a more inclusive constitutional discourse on Euro-pean integration than the mere reliance on liberal constitutional principles.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130536420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the Consistency of the European Commission’s Remedies Practice","authors":"Benjamin Lörtscher, F. Maier-Rigaud","doi":"10.2139/ssrn.3450614","DOIUrl":"https://doi.org/10.2139/ssrn.3450614","url":null,"abstract":"The European Commission’s remedial practice displays important differences in the type of remedies accepted in merger versus antitrust cases. This paper provides a review of the Commission’s remedies practice over the last 14 years highlighting the differences and discussing inconsistencies. In particular, it raises the question why predominantly behavioural remedies are chosen in antitrust cases and how this practice is in line with the approach in merger control where the risks to effective competition are viewed as deriving from changes in the structure of the market and where therefore structural remedies are typically considered necessary.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126734085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comparative Perspective to Competition Law Cases in the Ride-Sharing Industry: Reflections from Jurisdictions of Singapore, EU and India","authors":"Shubhalakshmi Bhattacharya, Ganesh Bhaskar Lata, D. Mohan","doi":"10.2139/ssrn.3449615","DOIUrl":"https://doi.org/10.2139/ssrn.3449615","url":null,"abstract":"This study attempts to understand the effect and content of competition law jurisprudence engaged in the (digital) app based ride-sharing industry. The research undertakes a critical review of recent case laws law across three jurisdictions, adjudicated by competition regulatory authorities (in context to the ride sharing industrial sector). \u0000 \u0000These feature India, Singapore and the European Union, drawing a transnational contemporary perspective to how competition regulatory authorities view (competitive) disputes concerning economic agents within the digital economy landscape. As part of the review, one of the primary objectives is to understand the meaning of term “market definition“ and how competition regulatory authorities have delineated the relevant market with respect to this industry as part of the larger digital economic landscape, which is rapidly evolving. \u0000 \u0000Through the study, hurdles to delineating a relevant market were analysed from interpretations of recent case laws, further discussing why a common market definition has not been framed across jurisdictions, as well as within the same jurisdiction - as seen in the recent legal cases in India.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117138821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}