欧共体竞争法与仲裁的关系发展

随着世界统一市场的逐渐发展，竞争法的可仲裁性逐渐被承认。本文首先阐述了欧洲法院对欧共体竞争法的可仲裁性的承认，进而着重分析了欧共体竞争法的可仲裁范围及其在仲裁中被适用的具体情况，从而得出结论，世界统一市场要求竞争法不能绝对排斥仲裁适用方式，而是可以作为公共政策在仲裁中被适用。     

欧共体竞争法与成员国竞争法关系初探

由于均对各自适用范围做扩张性解释,因而欧共体竞争法与成员国竞争法在适用范围上不可避免地产生了重叠, 二者构成了一利双重控制体系。但这种双重控制体系又是有条件的双重控制体系,即当二者之间有冲突时,应以共同体竞争法的效力为优先。随着统一大市场的形成以及从属原则被确立为欧盟法的基本原则,这种双重控制体系面临瓦解的可能,在未来有必要对两套法律体系的适用范围进行重新划定,从而使其各行其是,互不干涉,而且预计成员国竞争法的地位会得到相应提升,并发挥其应有的作用。     

欧共体条约第81条第1款对母子公司行为的法律适用

<欧洲共同体条约>第81条第1款是欧共体竞争法关于联合限制竞争行为的核心实体法规范.由于母公司与子公司形式上的法律关系与实质上的经济关系存在不一致性,因此,第81条第1款能否适用于母公司与子公司之间的行为就成为理论与实践的重要问题.本文主要以欧共体竞争法的实践为研究对象,对该问题展开较为深入的探讨.     

欧共体法中的相称性原则

相称性原则是欧共体法中的一项一般法律原则。其适用范围不仅包括共同体措施 ,而且包括成员国国内措施 ;不仅适用于行政行为 ,也适用于立法行为。适当性、必需性和最小限制性是相称性原则的三个构成要素。相称性原则与从属原则既有密切联系 ,也有本质区别。就其功能而言 ,相称性原则是欧共体法院司法审查的基础 ,是支配共同体行使权能的原则 ,是建立内部市场的指导原则     

印度竞争法的域外适用及其对发展中国家的启示

传统竞争法具有严格的地域性,不可适用于域外的限制竞争行为.随着国际经济交往的日益频繁,跨国贸易的不断发展,很多限制竞争行为具有了远程效果,竞争法的属地性特征日趋淡化,域外效力逐渐得到认可.竞争法的域外适用不同于传统国际私法中的域外适用,其从产生伊始便饱受争议,但实践中几乎所有的发达国家的竞争立法中却都包含有域外适用效力的条款.发展中国家的竞争立法起步较晚,在不断深入的国际经济交往过程中饱受跨国限制竞争行为之害,也逐渐认识到竞争法的重要性以及竞争法域外适用的必要性.印度在竞争法的制定和实施方面走在发展中国家的前列,印度竞争法的域外适用问题在不断的执法探索、司法解释和立法更迭中经历着从不确定到明确否定再到有所发展的过程.这样的发展过程也给广大发展中国家带来诸多启示.     

欧共体商标权利国际用尽原则演变过程及对我国的启示

自欧共体成立后的几十年时间内 ,由于共同体有关商标法律规定不明确 ,各成员国对于商标权利共同体外部是否采用权利用尽原则 ,各个时期有不同的理解。 1998年欧洲法院一个判例明确确立了共同体商标在共同体外不适用权利用尽原则 ,从而正式统一了各成员国在这个问题上的做法。我国现有的法律尚未确立商标权利是否采取国际用尽原则 ,酝酿中的商标法修正方案可以从欧共体解决这一问题的历史及欧洲法院判决的依据中得到启示。     

应对竞争的抗辩:美国和欧共体反价格歧视法的比较与借鉴

价格歧视属于企业价格决策的一种,而价格决策很大程度上受制于企业所处的竞争地位和竞争环境.而价格歧视又是竞争法规范的对象.为了将与竞争法目标相容的和不相容的价格歧视区别出来,除了其他规则之外,美国和欧共体的竞争法还确立了应对竞争的抗辩,被控方可据此推翻指控.比较美国和欧共体竞争法中的有关规则,分析两者在这一问题上的相同点和不同之处,针对我国未来反垄断立法中的禁止价格歧视条款,提出具体的建议.     

欧盟环境政策与竞争法的关系探析及启示

随着环境问题日益受到国际社会的重视 ,作为欧盟经济一体化法律保障的欧盟竞争法越来越受到环境保护浪潮的影响。尽管欧盟的环境政策与竞争法存在一定的冲突 ,但协调是主旋律 ,环境保护因素已经融入欧盟竞争法的实施中。欧盟环境政策和竞争法的相互作用为我国加入WTO ,应付环境与贸易竞争的挑战以启示 :加强国内环境保护 ,提高国际竞争力 ;完善竞争法 ,配合环境政策实施其功能。     

“合理原则”及其立法模式比较

美国与欧共体竞争法中的卡特尔制度 ,都建立在“合理原则”基础之上。美国判例制度将其演化为“本身违法规则”与“合理规则” ,而欧共体竞争法则采用了豁免制度。本文对这两种代表性立法模式进行了细致比较 ,认为欧共体模式更值得我国反垄断立法加以借鉴     

影响欧共体竞争法的因素探析

欧共体竞争法受到欧共体成员国、美国反托拉斯的影响,形成了自己独到的特色。我国应从中受到若干启示。     

The European Union and Penal Law

Technically-speaking, penal law remains outside the competence of the European Communities and Union. However, mirroring other legal developments within Europe, a combination of higher Community 'principles' such as proportionality, non-discrimination, free competition and loyal co-operation, together with secondary Community law, has on the one hand, led to an unforeseen process of the harmonisation of national penal systems; with national norms either being set aside by Community law, or given extended scope in the pursuance of EC/EU goals. On the other hand, certain European interests – most notably, the need to safeguard the European Union budget – have proven strong enough to prompt the evolution of a nascent penal law of the EU; the most noteworthy development here being the drawing up of an independent European 'corpus juris' covering penal policy and procedure in the area of EU budget protection.     

'Food for Thought': Reconciling European Risks and Traditional Ways of Life

The European Food Safety Authority marks a new stage in European Union governance. It has no direct regulatory powers, but is entrusted with developing norms of food safety, which are to inform the material content of EC food law. The hope is that its independence and expertise will restore popular confidence both in the EU and in the food we eat. The irreducible nature of lay-expert conflicts about hazard suggests that a more likely scenario is that such disputes become recast as opposition to EC law. Such conflict is most likely to manifest itself in national courts through challenges to or non-compliance with EC law. The current principles for resolution of such conflicts are hopelessly outmoded. The article, therefore, argues for a constitutional resettlement, which sets out principles germane to the nature of the EC regime, namely that of a multi-level regulatory State. It argues for a new defence of regulatory balance. Individuals could argue for the disapplication of EC norms where these violated a valued local regime which had given consideration to the issues raised in the EC legislation and whose positive value to its subjects exceeded its negative impact on the interests protected by the EC legislation.     

论欧盟法在成员国的适用

欧盟法主要由欧盟与成员国签订的基础性条约、欧盟与第三国或国际组织签订的条约和欧盟通过的条例、指令和决定组成。在欧盟内部,欧盟法可以直接适用,具有直接效力,并处于优先地位。欧盟法与成员国法的关系既不同于国际法和国内法关系,也不同于联邦法与成员邦法的关系。欧盟成员国各自适用欧盟法的实践,反映了欧盟法独特的适用方式,表明国际法日益得到普遍的尊重与遵守,主权国家自觉灵活适用国际法以维护国家利益,国际组织在国际法国内适用方面发挥重要作用。这是对现代国际法的丰富与发展。     

The legal landscape for advanced therapies: material and institutional implementation of European Union rules in France and the United Kingdom

In 2007, the European Union adopted a lex specialis, Regulation (EC) No. 1394/2007 on advanced therapy medicinal products (ATMPs), a new legal category of medical product in regenerative medicine. The regulation applies to ATMPs prepared industrially or manufactured by a method involving an industrial process. It also provides a hospital exemption, which means that medicinal products not regulated by EU law do not benefit from a harmonized regime across the European Union but have to respect national laws. This article describes the recent EU laws, and contrasts two national regimes, asking how France and the United Kingdom regulate ATMPs which do and do not fall under the scope of Regulation (EC) No. 1394/2007. What are the different legal categories and their enforceable regimes, and how does the evolution of these highly complex regimes interact with the material world of regenerative medicine and the regulatory bodies and socioeconomic actors participating in it?     

Institutional competition of optional codes in European contract law

The Common European Sales Law (CESL) is the European Commission’s most recent policy initiative for European contract law. It aims to address the problem that differences between the national contract laws of the Member States may constitute an obstacle for the European Internal Market. This paper develops a model of the institutional competition in European contract law and uses it to addresses the question as to whether an optional European contract code and the CESL are economically desirable for European contract law. To do so I examine the transaction costs involved in the process of choosing an applicable law that European businesses face when they conduct cross-border transactions in the European Internal Market. I then describe how these transaction costs shape the competitive environment, i.e. what I refer to as the “European market for contract laws” in which the contracting parties choose a law to govern their cross-border contracts. Having identified this environment and the competitive forces operating within it, I propose a model, the “Cycle of European Contract Law”. I use this model to analyze the competitive processes that take place in the European market for contract laws. Based on my results I make recommendations for the optimal implementation of an optional European contract code and the CESL in European contract law.     

Free movement of law students and lawyers in the EU: a comparison of English,German and Greek legislation

This article focuses on the linked themes of mobility within the European Union for law students and for lawyers. It highlights obstacles to cross-border legal education and legal practice across three Member States: England and Wales, Germany, and Greece. The European legal framework is outlined. The implications of recent case law of the European Court of Justice, on the conditions of access to higher education and financial support, are considered. Three main areas of concern are identified: admission arrangements; student finance; and the professional recognition of qualifications. The article compares the approach of the three Member States in each of these areas and explores conflicts between their domestic law provisions and European Union law. The article concludes by identifying ways in which ‘Europeanisation’ of legal education and the legal profession could be encouraged by facilitating law student mobility and by modernising the law curriculum.     

Privacy and security by design: Comparing the EU and Israeli approaches to embedding privacy and security

Policymakers in the European Union and Israel are searching for regulatory strategies on how to best protect their citizens informational privacy. More recently, the focus has shifted towards Privacy and Security by Design as a mean to address current privacy concerns. While Privacy and Security by Design in itself is not a new idea, its implementation has taken new forms within the General Data Protection Regulation, as well as in various Israeli laws, inter alia, the Privacy Protection Regulations on Data Security. In this article we first analyse these implementations of Privacy and Security by Design and then compare the European and Israeli approaches with one another. We address the question of which approach provides more guidance to developers with respect on how to embed Privacy and Security by Design measures into new services and products. We conclude by pointing to empirical research needed to further analyse the impact of the two different regulatory strategies.     

State Nationality and Religious Family Law: Some Notes

Most States are ‘secular’ States. Freedom of religion allows religious communities to organize themselves within the framework of the law of the State. In some other States organized religion has a dominant position enabling it to have a major impact on the law of the State. Private International Law (PIL) of secular States is characterized by a large extent of openness to the law of other States. The extrovert character is missing on the side of non-secular States. The difference should not pass unnoticed. Nationality loses attractiveness as a connecting factor in family law, though it persists as a pointer to the cultural frame of reference for many persons. In Western countries this development is enhanced by libertarian ideas on family law. In PIL a parallel development can be registered. The scope of conflicts of laws rules tends to lose effect on the recognition of acts and facts that are situated abroad. This new ‘method of recognition’ appears to have some effect on the case law of superior courts. The European Union has had to deal with recognition issues in the field of family law.

     

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.     

Closed Distribution Networks and E-commerce: Antitrust Issues

Closed distribution networks (ie exclusive or selective distribution networks) have to integrate the development of the internet, particularly in sectors such as fine fragrances or new cars sales. Producers (ie Chanel or Volkswagen) cannot ignore that their products are potentially available on the web. Considering the relationships between producers and their off-line dealers, the question is to know if these dealers could be authorized to resell the products on their own website. In each sector, producers have to adapt their distribution contracts for e-commerce. In a previous paper (published in the Journal of Information, Law and Technology , 2000, No 2) we conclude that electronic points of sales must respect criteria used for physical points of sales, but with some adaptations. The major issue for producers is to build legally secured contracts in order to manage both off-line and on-line distribution networks. But the adaptation of traditional distribution contracts cannot ignore the antitrust framework, especially in the European context, since the new Block Exemption Regulation No 2790/99 on Vertical Restraints has been published. Producers' strategies within the European Union must take into account potential competition restraints implied by their contract policy. When drafting their contracts for e-commerce opportunities, producers have to deal with the legal standing of their networks within the European antitrust law. In this paper, our purpose is to analyze implications of the on-line distribution strategy that could be drawn up by a producer from the European competition law viewpoint. We determine opportunities and constraints presented by the Guidelines from a producer's point of view, and we examine whether European competition law does offer any interesting 'room for manoeuvre' for producers who develop closed distribution networks. We also identify what kind of elements could lead to a withdrawal of the benefit of the Block Exemption Regulation No 2790/99; we show that this withdrawal could arise from a market share evaluation, or from the disproportion between competition restraints (stemming from the distribution contract clauses) and the necessity of an economic progress within the European Commission (EC).