European Public Law: EU eJournal最新文献

{"title":"Collective Action Clauses in the Euro Area: A Law and Economic Analysis of the First Five Years","authors":"Christoph Grosse Steffen, S. Grund, Julian Schumacher","doi":"10.1093/CMLJ/KMZ001","DOIUrl":"https://doi.org/10.1093/CMLJ/KMZ001","url":null,"abstract":"This paper reviews the first five years of experience with Collective Action Clauses (CACs) for European sovereign debt, focusing on both the legal and the economic dimension. First, we present a chronology of the legislative acts to incorporate CACs in European sovereign debt contracts alongside landmark lawsuits that have challenged their viability in the context of the Greek government debt restructuring of 2012. Second, we find in an empirical analysis that the introduction of CACs and related lawsuits had limited effects on sovereign bond pricing, both around the time of their announcement as well as in the time since. Based on this treatment of CACs in European courts and on financial markets, we conclude that the gradual and ex-ante reform approach was less risky than relying on potential ex-post action.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133405749","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":"Academic Freedom in the European Union - Why the Single European Market is a Bad Reference Point","authors":"T. Ziegler","doi":"10.2139/SSRN.3317406","DOIUrl":"https://doi.org/10.2139/SSRN.3317406","url":null,"abstract":"This article focuses on the EU’s role in setting the framework for higher education in Europe. The topic has special relevance, as major changes have been made in the sector in certain member states, like Hungary and Poland, and some of these changes are connected with the rule-of-law backsliding in these countries. The paper argues that the European Union should develop a list of fundamental rights that it wants to enforce in higher education among the member states and that this procedure has already started in certain instances. On the other hand, as the EU has linked higher education to single-market regulations, it cannot proceed concerning the issues that do not have a connection with the market. This inactivity could create ambivalence in judging the same or similar questions and has the potential to create discriminative situations. The article claims that, unlike common presumptions, the EU could find itself competent to act if it would interpret rights in higher education from a fundamental rights perspective instead of solely protecting market rationality.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121669257","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":"Servier v. Commission (Case T 691/14): 5 Crucial Points of the Second 'Pay-for-Delay' Decision of the EU General Court","authors":"A. Athanasiadou","doi":"10.2139/ssrn.3345613","DOIUrl":"https://doi.org/10.2139/ssrn.3345613","url":null,"abstract":"This post briefly discusses the decision of the EU General Court on Servier v. Commission (T‑691/14), the second \"pay-for-delay\" patent settlement case in the EU after the Lundbeck case. The 3 criteria upheld by the Court in order to determine whether the patent settlements at issue constituted restrictions of competition by object are presented, along with the Court's confirmation that potential competition may exist in a market before the expiration of the patent covering the brand-name drug. Further, the Court discussed which costs can be considered as inherent to settlements and noted that the burden of justifying the amount of the reverse payment lies with the parties. Even though the court accepted that there is a risk that side-deals may serve as a vehicle to conceal transfers of value from the patent holder to the generic manufacturer, the Court also noted that a grant of a license may serve as an appropriate means of putting an end to a patent dispute. Finally, the Court found that the Commission failed to establish that the relevant market was limited to the perindopril molecule only, so it reversed the finding of an abuse of dominant position and annulled the respective fine.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129283885","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 Global Dimension of the EU’s AFSJ: On Internal Transparency and External Practice","authors":"E. Fahey","doi":"10.2139/ssrn.3303441","DOIUrl":"https://doi.org/10.2139/ssrn.3303441","url":null,"abstract":"The ‘global’ forms an increasingly regular, active and explicit part of the daily business of the EU. The paper argues that there is a specific mismatch between the commitment to transparency on a daily level in international and external fields and practices of EU law and the actual substantive law-making practice evolving. While the EU’s vision of the global is to a degree the most transparent ever, the converse is not necessarily the case as to its legal content. The global dimension to EU law has increasingly expansive subjects and objectives, in areas of existing strength in global actorness (e.g. trade) and in more evolving competences (e.g. security). It argues that while the EU is a significant soft power in trade, it is arguably less so in the Area of Freedom, Security and Justice (AFSJ) where its global reach becomes more challenging. The relative weakness of the EU’s global approach in the AFSJ is usually or acutely felt by individuals who face challenges in seeking redress increasingly as to aspects of transparency. The paper argues that there is a significant mismatch of internal transparency practices concerning the EU’s global law-making. Ultimately, mismatches between internal procedures and external law-making as to transparency operate adversely upon the global in a variety of ways, e.g. as to transparency and clarity, good administration and territoriality claims taken by individuals. It outlines the express approach to the global in EU policy in (i) migration (ii) passenger name records and the non-express approach to the ‘global’ in EU data protection and data transfers.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114544178","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":"Sustainable Public Procurement as a Driver for Sustainable Companies? The Interface between Company Law and Public Procurement Law","authors":"Beate Sjåfjell","doi":"10.1017/cbo9781316423288.011","DOIUrl":"https://doi.org/10.1017/cbo9781316423288.011","url":null,"abstract":"This chapter discusses the relationship between public procurement and company law within the context of the overarching EU objective of sustainable development. The EU recognises the importance of business to achieve sustainability and the relevance of public procurement law as a policy strategy instrument in this context, but it does not yet fully recognise the importance of company law. Reform of public procurement law is seen as an essential part of the EU’s 2020 Strategy, with public procurement being mentioned several times: as a potential driver to stimulate innovation and resource-efficiency, and as an integral part of an industrial policy for a global, low-carbon economy. While public procurement is also mentioned as a tool to ensure efficient use of public funds, company law is only regarded in the economic context, as something to be simplified to facilitate single-market access for SMEs and encourage entrepreneurship. However, company law does have a crucial role to play in the transformation towards sustainability because it provides the legal framework for the internal workings of the company, including its decision-making. Indeed, the argument can be made that without a reform of the legal infrastructure for the internal decision-making in companies, sustainability is very difficult, if not impossible, to achieve. <br><br>This Chapter draws on a research-based reform proposal for EU company law and corporate governance. The Chapter proceeds with a brief presentation of the reform proposal for sustainable companies and discusses the potential role of public procurement in that context. On this basis the Chapter considers whether ideas from the reform proposal can be promoted by public procurement as a potential front-runner and a driver for the necessary transformation of business, identifying possibilities but also significant limitations. The Chapter then goes on to discuss whether there are any lessons to be learned for public procurement from the insights derived from international company law research on how to internalise environmental and social externalities in the decision-making in companies; and conversely whether innovative approaches in the new public procurement directives can inspire a further development of the reform ideas for company law itself. The chapter concludes with some reflections on the interaction between public procurement law and company law.<br>","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"111 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134196182","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":"Disability Assessment in European States ANED Synthesis Report","authors":"L. Waddington, M. Priestley, R. Sainsbury","doi":"10.2139/ssrn.3320419","DOIUrl":"https://doi.org/10.2139/ssrn.3320419","url":null,"abstract":"The focus of this synthesis report is disability assessment, and specifically how disability is assessed in the context of a variety of benefits and support schemes across European states. Assessment of disability is widely used to determine eligibility for entitlements, services and benefits. This synthesis report explores different aspects of disability assessment from a European perspective. The report is structured as follows. Part I of the report follows on from this introduction to explore various aspects and dimensions to disability assessment mechanisms from a generic perspective. On the basis of a literature search, this section first seeks to identify and discuss various different approaches to assessing disability. Part I concludes by considering the guidance that the UN Committee on the Rights of Persons with Disabilities, linked to the CRPD, has issued on disability assessment in its Concluding Observations to States Parties. Part II of the report explains the methodology used to collect information from ANED country experts relating to national disability assessments and provides a short overview of the overall findings. Part III contains the synthesis based on the information provided by a number of ANED country experts, making use of the template on national disability assessment mechanisms. In Part IV, elements of assessment mechanisms which can be regarded as good practice are identified, and the impact of the CRPD, as well as the compatibility of various assessment methods with the CRPD, are discussed. It is worth noting that elements of the overall evaluation that determine eligibility for a particular benefit which are not directly or indirectly related to disability, such as an individual’s history of social security contributions, are not considered in this synthesis report, although they may be covered in the related country reports.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127505734","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 Country‐of‐Origin Principle and Balancing Jurisdiction Between Home Member States and Host Member State","authors":"K. Sørensen","doi":"10.2139/ssrn.3067321","DOIUrl":"https://doi.org/10.2139/ssrn.3067321","url":null,"abstract":"The country‐of‐origin principle is frequently used as the foundation for secondary legislation aiming to realise the internal market. Even if it does promote free movement, the principle also has the consequence that host Member States to some extent lose the ability to regulate activities occurring in their territories. In some situations, such a loss of regulatory sovereignty and the consequences hereof may seem particularly unacceptable. When looking at how the country‐of‐origin principle is implemented, it becomes clear that there are different mechanisms in place to ensure that the host and/or the home Member State may prevent some of these unacceptable effects. Consequently, through the interaction of the legislator and the Court of Justice of the European Union the host Member States are not without protection. The country‐of‐origin principle is used in many different areas of secondary law, but nevertheless, the solutions to the problem of balancing jurisdiction between the home Member State and the host Member State are more or less the same, and an overall model seems to be developing. To describe this model, the paper examines how the interests of the host Member States are taken into account when issuing an authorisation, license etc. Next, it examines the extent to which the host Member State has the duty to recognise the authorisation, licence etc., and the extent to which the host Member State may still regulate the activities of the holder of an authorisation, licence etc. These aspects are evaluated in the light of different areas applying the country‐of‐origin principle, and it is contrasting the solutions found in these areas with the solutions found in company law, where a very different version of the principle has emerged.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127037698","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":"Developing a European Standard for International Data Transfers after Snowden: Opinion 1/15 on the Eu‐Canada PNR Agreement","authors":"Monika Zalnieriute","doi":"10.1111/1468-2230.12378","DOIUrl":"https://doi.org/10.1111/1468-2230.12378","url":null,"abstract":"In Opinion 1/15 the Court of Justice of the European Union (CJEU) held that the proposed EU‐Canada Passenger Name Record (PNR) agreement must be revised because parts of it are incompatible with the EU fundamental rights framework. This note argues that the significance of Opinion 1/15 can only be understood in the broader historical context of increasing international securitisation between the 9/11 attacks in 2001 and the Snowden revelations in 2013. Opinion 1/15 emerges as a powerful addition to the existing data privacy trilogy established by the CJEU in the post‐Snowden era in an attempt to re‐balance the terms of international cooperation in data‐sharing between the EU and other countries. These terms were largely modelled around national security interests that have gained significant prominence in the aftermath of 9/11. While pro‐securitisation policies have been successful in gaining support among private and public actors, it is doubtful whether the CJEU pushback – without political support from EU Commission and Member States ‐ will achieve similar success.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"291 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120968958","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":"What Should EU Competition Policy do to Address the Concerns Raised by the Digital Platforms’ Market Power?","authors":"D. Geradin","doi":"10.2139/ssrn.3299910","DOIUrl":"https://doi.org/10.2139/ssrn.3299910","url":null,"abstract":"This short paper, which takes the form of observations submitted to the European Commission in the context of its decision to host a conference in Brussels in January 2019 on “Shaping competition policy in the era of digitisation”, seeks to make the following points. First, while caution must be taken when analysing digital platform markets, there is no reason to believe that the Commission cannot properly assess such markets and that the risk of type-II errors should necessarily prevent intervention. To the contrary, type-I (under-enforcement) errors may be particularly damaging considering that these platforms not only control access to their own products and services, but also – and this is a critical observation – to third-parties’ products and services given their intermediation functions. Second, while the focus of Commission investigations in digital platform markets has thus been focused on vertical foreclosure, including efforts by digital platforms to extend their market power in one market (e.g., general search) to one or several other markets, there are reasons to believe that digital platforms can also engage in anticompetitive forms of abuse that do not necessarily fit within the vertical foreclosure box. One such concern is exploitation. Another concern can be referred to innovation-suppressing conduct, i.e. dominant platform conduct that has the effect of making it harder for other companies to innovate. Third, although the competitive issues raised by digital platforms are multi-fold and complex, the goal of competition authorities should be to protect innovation understood in a broad sense. This is the case for two related reasons. In the first place, in a digital space where services are offered for free, competition is based on quality, but also very largely on innovation. Thus, consumer welfare is served by making sure that innovation is allowed to prosper. In the second place, even those who are hostile to enforcement of competition rules in the digital space – on the ground that market power is temporary, and that intervention creates risks of errors that outweigh any benefits it may generate – recognize that incumbents are eventually displaced by more innovative rivals. Thus, protecting the innovative process is central to Schumpeterian creative destruction.","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115940046","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":"Is Islam Incompatible with European Identity?","authors":"W. Brzozowski","doi":"10.2139/ssrn.3301195","DOIUrl":"https://doi.org/10.2139/ssrn.3301195","url":null,"abstract":"The current EU migration crisis has confronted Europe with the need to manage an unprecedented influx of refugees and migrants, many of whom report Islamic religious identity. Not only have these recent developments brought about numerous acts of hostility and discrimination motivated by religious hatred, but they also seem to jeopardize, in the long run, inter-religious dialogue in Europe. The conflicts which result from this unexpected, and often unwanted, meeting of people with different cultural and religious background have revived or strengthened doubts about Islam being compatible with European identity. The actual concern is whether following the rules of Islam in everyday life (e.g. wearing of religious clothing and symbols, respecting gender equality, exercising parental rights) can be reconciled with the Western standards of human rights. The aim of the presentation is to address this question from the legal perspective. Unsurprisingly, it is not a new question, and it has been examined on many occasions—though rarely in an open manner—by the European Court of Human Rights (ECtHR) and other standard making bodies in the European legal space. This standard seems to be evolving, slowly and not in one direction, gaining some growing scholarly attention recently. As regards the Islamic legal order, it has been clear, at least since the ECtHR judgment in the case of Refah Partisi (2003), that the concept of Sharia law is incompatible with the fundamental principles of democracy. Applying some of Sharia rules by individuals in the private sphere may be permissible as part of their freedom to observe the precepts of their religion, but it should not be endorsed or enforced by the state. However, the recent relinquishment in favour of the Grand Chamber in a case concerning the application of Sharia law by a state court to an inheritance dispute between Greek citizens belonging to the Muslim minority suggests that this traditional view may soon be challenged. Not less surprising is the recent ECtHR judgment in the case of Hamidovic (2017), in which a violation of freedom of religion or belief has been found on account of the punishment of a witness for refusing to remove his Islamic skullcap while giving evidence before a criminal court. Even though the ECtHR declared that the case of Hamidovic is completely different from the cases concerning the wearing of religious symbols and clothing in the workplace, it is hard not to see this judgment as a breakthrough in the Court’s case-law as regards the accomodation of Islamic religious practice. At the same time, the interpretation of the European Convention of Human Rights seems to be well-established, and therefore continuously applied, regarding the admissibility of ban on concealment of one’s face in public places motivated by religion. This practice, which is often considered to be at odds which such values as dignity, liberty and gender equality—or even openly hostile to women’s rights—may be ","PeriodicalId":401648,"journal":{"name":"European Public Law: EU eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129574918","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}