New Directions in EC Competition Policy: The Case of Merger Control

Abstract:  This article examines two new directions of EC competition law, by taking the example of Merger Control. The first is factual, since the Commission has accepted an increased role for economic analysis under the new Regulation. The second examines the role that EC competition law could play in the achievement of the Lisbon Strategy objectives. At present, both directions interact with one another, as the importance and the aims of competition rules depend to a large extent on the economic theory when applying legal rules. Traditionally, the EU has rejected the creation of an industrial policy that is considered to be inefficient. But the intensification of international competition has to induce the EU to open up the debate in relation to the meaning to be attributed to a 'European industrial strategy'. To accomplish a 'dynamic and competitive' European economy, current policies, mainly competition policy, should consider taking into account international competitiveness by resolving the question of the economic theoretical context used to review mergers.     

Integrating Environmental Protection and EU Competition Law: Why Competition Isn't Special

One of the biggest challenges facing environmental policy makers at present is that of integrating environmental protection goals into economic policy areas. Unless this is genuinely achieved, it is clear that environmental degradation will continue apace. Though one of the EU's most important areas of economic competence is competition policy, many policy makers and commentators reject the notion that environmental concerns should play a significant role in EU competition analysis. In that light, this article addresses two key questions. First, should this approach apply? Second, if not, what are the principles that govern how environmental protection requirements should be taken into account by decision makers applying EU competition law? In answering these questions, the article puts forward three theoretical arguments as to why, and how, the environmental benefits and damage flowing from goods and services should be taken into account by EU competition decision makers, based, respectively, on legal systematic, governance and economic reasoning.     

Does accessible technology need an ‘entrepreneurial state’? The creation of an EU market of universally designed and assistive technology through state aid

EU State aid law has sought to enable people with disabilities to obtain employment, yet has not been explicitly included in the toolbox of policy options to improve the availability and choice of accessible technology within the EU Internal market. This seems to be the consequence of an inherent bias against State intervention in the market, which is mostly unwelcome since it can limit open and free competition. This also reiterates the ‘less-aid’ policy and the purely economic approach to State aid professed by the European Commission. Against this background, this article discusses the potential for EU State aid policy to foster both ‘design for all’ and innovative assistive devices for people with disabilities. It seeks to argue that the goal of an EU-wide market of accessible technology can be achieved using EU State aid law. In particular, this article aims to highlight that a more targeted use of EU State aid law can lead developers to increase the production of accessible goods, to adjust or reduce prices and to provide consumers with a greater degree of choice in a greater number of marketplaces. Whilst it adopts a legal approach, this analysis relies inter alia on economic evidence and recalls the pamphlet recently published by Mazzuccato, from which the title of this work has drawn inspiration.     

Global Environment Threats and a Divided Northern Community

The EU, Japan, and the US now share many environmental norms, laws, and institutions and cooperate on international environmental matters through numerous bilateral and multilateral channels. They disagree, however, on how to deal with some of the most serious issues facing the global environment and the quality of human life including wide-scale biodiversity loss, climate change, the use of genetically modified (GM) organisms; the trans-boundary movement of hazardous wastes, and chemical safety. As these are all issues that require the involvement of developing countries if global environmental protection efforts are to be effective, the discord that exists among the Northern states is of tremendous significance. The US has pulled out of the Kyoto Protocol arguing that the treaty is poorly designed and would be detrimental to the US economy. Japan and the EU have had to try to find a way to bring the treaty into force without the participation of the world’s largest emitter of greenhouse gases and to convince participating countries to meet their targets even though this may put them at a competitive disadvantage. In the case of biodiversity loss, although the US initiated international negotiations on biodiversity preservation, it has refused to join the EU and Japan in ratifying the Convention on Biological Diversity. There are also differences between the US, on the one side, and Japan and the EU on the other, regarding the use of GM organisms. This article analyses the reasons for the differences that have emerged among northern states in their international environmental policy positions and what the implications of this northern policy divide are for the effectiveness and legitimacy of international environmental protection efforts.     

Global carbon pricing and the “Common But Differentiated Responsibilities”: the case of China

This paper analyzes whether using carbon pricing as the major mitigation policy instrument is compatible with the implementation of the “common but differentiated responsibility” principle in a global climate agreement. We focus more specifically on China, a key player in climate negotiations. This is done by adopting the Imaclim-R model to assess the economic effect of carbon pricing on the Chinese economy in different climate architectures which, despite aiming at the same stabilization target, differ in terms of the temporal profile of emission reductions and the regional distribution of efforts (different quota allocation schemes). Model outcomes prove that neither temporal nor regional flexibilities provides a satisfactory answer since the Chinese economy remains significantly hurt at certain time periods. This suggests the recourse to complementary measures to carbon pricing in order to help smoothing the necessary shift toward a low-carbon society. This means in particular that, to build a climate policy architecture that could be compatible with the “common but differentiated responsibility” principle, climate negotiations must go beyond global top-down systems relying on cap-and-trade to include bottom-up measures likely to complement the carbon price and make carbon mitigation acceptable in countries like China.     

Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration

European economic integration with a minimalist social policy at EU level was in part made possible by strong domestic labour market and social welfare institutions. The main contention of this paper is that EU market liberalisation was embedded within institutions of social citizenship at domestic level, which served to counter the liberalisation of the internal market. But this settlement has been put under strain. In addition to the challenges posed to the sustainability of European welfare states by the global economic crisis, the internal market jurisprudence of the Court of Justice casts doubt on the sustainability of the ‘embedded liberal bargain’. This paper focuses on the role of the Court, in particular in its jurisprudence on the interaction between (EU) market freedoms and (national) labour law, which undermines the ability of states to retain their regulatory autonomy over labour or social welfare law and, arguably, speeds up the unravelling of the ‘embedded liberal bargain’.     

Misconceiving ‘seasons’ in global food systems: The case of the EU Seasonal Workers Directive

This article discusses the EU Seasonal Workers Directive alongside case study data of seasonal agricultural work in Spain. The conceptual contribution is to critically consider ‘seasonality’ and the related assumptions around temporary labour migration for agricultural work. This consideration informs an analysis of the Directive's policy approach alongside its three global objectives. It is argued that this Directive is likely to fail to meet all three of these objectives; the assumed timeframe for labour demands does not correspond with unmet seasonal challenges; the lack of options for undocumented workers already in the EU may compound their marginalisation; the policy approach of circular migration and limited worker protections does not do enough to prevent new seasonal workers from falling into situations of vulnerability and undocumented status.     

Review of “Youth Peacebuilding: Music,Gender, and Change,” by Lesley J. Pruitt

Ten countries of Central and Eastern Europe and the Mediterranean region joined the European Union in 2004. Two more new members from southeast Europe (Bulgaria and Romania) joined in January 2007. Given the diverse range of political, economic, social, and cultural contexts of these nations, EU enlargement and integration processes have entered a new phase of complexity. In this article, I analyze the cultural policy developments in eight of the new EU member states (the Czech Republic, Estonia, Poland, Latvia, Lithuania, Hungary, Slovakia, and Slovenia), examine in detail state and nonstate cultural funding patterns, and assess the influence of EU policy—especially with regard to the Culture Program, Structural Funds, and European cultural cooperation initiatives—for its impact on cultural policy development in the new member states. Next, I discuss the new forms of pan-European cultural cooperation, focusing on the development of networks, foundation initiatives, and observatories. Finally, I explore issues in development of cultural policy in the new member states and conclude with recommendations for the future of the enlarged EU.     

Sovereignty, Migration and the Rule of Law in Global Times

This article argues that in the present era of globalisation, control over the movement of people has become the last bastion of sovereignty. This is important both to theoretical accounts of globalisation and to policy decisions by governments. Nation states threatened with loss of control in other realms are implementing a variety of 'crackdown' measures in questions of immigration. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in specific ways. While international human rights standards have made few inroads in questions of migration, recent decisions in England and Australia suggest that the rule of law may be emerging as a counter to traditional executive free reign in matters of migration law.     

网络经济的竞争法规制探析

网络经济的有序发展需要竞争法的规制。网络经济效应必然带来网络经济行为的垄断性,形成有效的垄断市场结构,使消费者预期管理模式成为主要竞争模式,容易带来竞争策略的不正当性以及竞争地理范围的超国家性。这就对现有竞争法律规范提出了重大挑战,因此,要把合理、自由、全球性作为基本原则,通过修订相关法律概念术语、立足现有法律类型化网络不正当竞争行为、制定网络经济自治组织法与促进法、明确规定网络经济垄断标准等途径完善立法,依靠政府积极参与来促进网络经济竞争政策的完善,以期对网络经济的竞争行为进行有力规制。     

Federal democracy,distributive justice and the future of Europe

Discussions pertaining to advancing strategic policies and democracy in the EU cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another. Conceiving the EU as a federal democracy draws attention to this dilemma. This concept suggests democracy-preserving modes of governance instead of coercive coordination (policy adjustment to competition in the common market, joint decision-making among governments, central regulation by law and court decisions), which so far predominate in most relevant policy fields. It also calls for procedures to cope with issues of distributive justice stemming from territorial disparities in resources and burdens. The article conceptualises these challenges and outlines feasible steps to advance federal democracy in the EU.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

从欧盟竞争法看中国的反垄断法

中国加入WTO后 ,面临着和世界经济全面接轨 ,却存在着一个巨大的法律真空 ,即缺乏对竞争机制的全面有效保护。无论是从生存还是发展的角度出发 ,中国都急需制订一部竞争法。欧盟竞争法虽然来源于美国反垄断法的思想 ,但是它吸收了其内部成员国的国内法的合理内核 ,同时兼顾两大法系的协调问题 ,顺应竞争法的新的发展趋势。毫无疑问 ,欧盟竞争法对于中国的反垄断立法具有一定的启示和借鉴意义     

PERFORMING ARTS MANAGEMENT AND ADMINISTRATION

The aim of this article is to analyze the impact of EU cultural policies on a EUropean (capitalized "EU" meaning only EU member states) cultural identity. Although EUropean integration began as an economic project, the EU has developed more and more statelike features over time and has brought the question of democratization to the fore. Such questions, in turn, led to questions of what constitutes the EUropean demos and how to conceive of its collective identity. The EUropean identity has developed in addition and as a complement to the national identities of the member states. The article argues for EU cultural policies that foster plural, multiple, and dynamic identities instead of a unified EUropean identity. The EUropean cultural policies should not be based on assumed common roots expressed in the cultural heritage of Europe, but rather should focus on contemporary and critical cultural and artistic expressions.     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

Profits of disorder: images of the Transnistrian Moldovan Republic

This article looks at the multiple constructions that constitute the image of the Transnistrian Moldovan Republic (PMR), a separatist region located in eastern Moldova. The European Union (EU) and the international community construct the area as a ‘black hole’, a security and terrorist concern. The PMR has constructed the state's image on the basis of the memory of collective suffering at the hands of Moldovan oppression, in a fashion that resembles state building in nineteenth-century Europe. The best-selling author Nicolai Lilin invests a criminal Ruritania in his fake memoir of criminal tales and exploits. The article shows that a degree of order and legitimate means to make money exist in the PMR while it highlights a key and largely ignored element of the political economy of the PMR, namely the economic role and monopolistic practices of Sheriff and the strong interconnection between politics and economic activities.     

A Political Economy Perspective of Judicial Review in the European Union: Judicial Appointments Rule, Accessibility and Jurisdiction of the European Court of Justice

The paper examines the benefits the sovereign member states of the EU expect to derive by granting the European Court of Justice the power to review the collective policy making decisions of the EU legislative bodies. Using the methodology of constitutional political economy it investigates the one-country one-judge rule of judicial appointments in the ECJ, the restrictions imposed on litigants to access the ECJ and the limits on the jurisdiction of the ECJ to review EU legislation. It also analyses how the presence of judicial review affects the size of the policy measures taken by the policy makers.     

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.     

The economic constitution and the political constitution: seeking the common good in the post-national setting

In the post-national setting, the concept of the ‘economic constitution’ has been seen as design template and saviour; whether based on transactional certitude or founded on ordoliberal precepts, the economic constitution is assumed to legitimate economic integration across national borders in the absence of comprehensive political settlement. Nevertheless, recent tensions – not only within the European Union (EU) but also, more strikingly, within the World Trade Organization context – indicate the limits of economic constitutionalism. This article seeks to identify the roots of recent dysfunction within the history and theory of economic constitutionalism. It traces the evolution of an adjudicational economic constitutionalism and its place within the EU legal order, including the new EU Charter of Fundamental Rights, and contrasts this vision with the more comprehensive and/or socialized models of economic constitutionalism found not only within the Weimar Republic but also within the post-revolutionary/post-conflict constitutional context. The article also places a major emphasis on theorizing around the apex of economic-constitutional thought, ordoliberalism, but concludes that no concept of the economic constitution can be seen in isolation from its social-political context, or from notions of the common good. To this exact degree, failures in modern economic constitutionalism may derive from a misplaced universalism – a technocratic absolutism that abdicates political responsibility for the common good, locating it instead in an ‘idolatry of the factual’ or a new naturalism of market inevitability.     

从欧盟扩大看GATT/WTO关于关税同盟补偿谈判的规定与实践

2004年5月,欧盟正式扩大到25国,其共同贸易政策自动延伸适用到新入盟国,导致部分关税税率升高和贸易政策趋严,给盟外其他WTO成员造成经贸利益减损。WTO其他成员有权根据GATT第24条、第28条以及关于解释这两条的谅解等规定,要求欧盟做出补偿性调整。本文对关税同盟补偿谈判的法律基础、主要内容、谈判程序和主体等进行了分析和探讨。作者认为,关税同盟补偿问题的妥善解决,将对区域经济一体化趋势下更好地维护多边贸易框架的合理性做出贡献。