Market definition with differentiated products: a spatial competition application

This paper applies the ‘hypothetical monopolist’ test of market definition to a retail market with products differentiated by means of location and other dimensions. The test for defining the relevant product and geographic market follows the conditions required by the European Union Competition Law and so it takes into account both demand- and supply-side substitution. The empirical model using sales data from a set of movie theatres in the North of Spain, incorporating the observed locations of consumers vis-à-vis the stores, shows that empirical tests of market definition may lead to an implausible (too restrictive) definition of the relevant market if supply-side substitution is not accounted for. It also shows that the main driver of competition in retail markets with differentiated products is not price but product characteristics.     

欧美金融隐私保护法律制度比较

欧美金融隐私权保护由于不同隐私保护体系而显得区别很大.欧盟综合性的保护方式为金融隐私权提供了较高的保护水平,但是实践中各国适用并不一致.美国单独立法的方式使得其金融隐私保护错综复杂,市场力量、行业自律也在保护金融隐私方面发挥重要作用.我国金融隐私立法应参照欧美法律和实践两个方面的情况.     

Traffick jam: a policy review of the United States’ Trafficking Victims Protection Act of 2000

The United States enacted the Trafficking Victims Protection Act (TVPA) of 2000 to combat organized networks specializing in the illicit transport of human beings across political and geographical boundaries. This response has engendered conflicting definitions and competing agendas attributable to the definition set forth by the TVPA, which divides the crime into ‘sex’ verses ‘labor’ trafficking. The European Union (EU) adopted a different and detailed definition introduced by the United Nations. This paper explores the disparity in anti-trafficking policies of the United States and the EU. By contrasting these efforts, recommendations to strengthen U.S. policy by adapting certain EU practices to an American context are suggested.     

Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a Comparative Perspective

Abstract:  The European Union aims to develop a European criminal justice to combat cross-border crimes of smuggling of migrants and trafficking in human beings. This article focuses its attention on European Community/European Union (EC/EU) law and on two Member States, Italy and the United Kingdom (UK). The findings show that there are diversities and ambiguities in the definition of irregular migration. On the contrary, the EU and Member States should concentrate their efforts on the two crimes of smuggling of migrants and trafficking in human beings rather than criminalising irregular migration.     

共同市场支配地位的理论基础与规则构造

为解决寡头市场中的垄断问题,我国《反垄断法》提供了"滥用共同市场支配地位"的路径,但法律规定有缺陷并导致实践中难以适用或错误适用。以美国、欧盟为代表的理论和法律实践均表明这种认定思路是行之有效的,但其难点在于如何通过间接证据证明市场寡头不具合理性的一致性行为不是由于客观市场结构造成的,而是基于主观意图,因此具有可责性。分析美国、欧盟的执法、司法案例,通过各自演进过程论证其内在逻辑,发现两种路径殊途同归。我国反垄断执法认定共同市场支配地位时应该将结构、行为因素并举。     

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.     

Restoring Dignity and Harmony to United States-European Union Data Protection Regulation

Global data protection laws can be described, at best, as contradictory in philosophy and practice. The 2015 decision by the Court of Justice for the European Union declaring the mechanism for data transfer between the United States and European Union known as “Safe Harbor” invalid and the criticism of its replacement, Privacy Shield, is representative of the conflict in this area. Such contention often stems from the differences in privacy rationales and theories of the United States and European Union. This article examines the recent developments in data protection regulations, and makes the argument that issues such as data protection, and specifically data shared with intelligence agencies, should be analyzed through the privacy principle of dignity and that the law of confidentiality should be applied to data protection cases, thereby instilling more harmony into the data privacy approaches of the United States and the European Union.     

欧美行政法的热点问题与发展趋势

通过追踪美国联邦与欧洲联盟行政法的热点问题,本文探讨了欧美行政法的发展趋势及其对中国的意义。在全球化时代,当代行政法早已超越了传统的红灯论和绿灯论之间的狭隘对立,正在走向融合乃至趋同。如何根据国情构建适合自身需要的行政法体系、制度和过程,仍然是21世纪中国行政法学的当务之急。     

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules.     

Global Privacy Concerns and Regulation-- Is the United States a World Apart?

The regulatory approach to privacy protection taken by many foreign jurisdictions is markedly different from that of the United States. The European Union (EU) best illustrates the international approach with its comprehensive privacy directive that applies to all EU members. By contrast, the approach regarding data privacy in the United States has been to pass industry-specific laws and often only in response to public outcry over some privacy concern. These fundamental differences have been the source of some conflict in international commercial transacting. Now that the global community is committed to eliminating terrorism, it remains to be seen if these different attitudes toward privacy by the United States and much of the rest of the world will affect global attempts to weed out terrorists. This article discusses the constitutional basis for most US policy approaches to privacy regulation. The article explains how the US constitution is the source for most of the differences between the US and international regulatory approaches to information privacy. Finally, the discussion addresses how new issues regarding privacy in the war on terrorism may be addressed by US Constitutional law.     

Website accessibility and the European Union: citizenship,procurement and the proposed Accessibility Act

Websites can be accessible to all if they are designed according to certain principles. Website accessibility has long been a European Union policy priority, particularly with the growth of egovernment services and the related impact on citizenship. A number of studies, while showing some improvement in accessibility, indicate the need for accessibility improvement in relation to egovernment services. This article outlines the European Union's policies on accessible websites and the related legislation. A theme in the development of disability related Directives is fragmentation and the lack of harmonising principles. Public procurement has been used as an extremely effective tool to increase accessibility in the United States, and it is this approach that lies at the heart of the proposed Accessibility Act. This initiative seeks to harmonise standards and policies on accessibility to harness fully the power of the internal market and the commercial impetus in order to increase access. While the Accessibility Act is currently being drafted after recent public consultation, this article evaluates the potential impact it could have on the accessibility of European Union public, and ultimately, private websites.     

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.     

China's stance on the Google/Motorola merger: Implications for competition in intellectual property-intensive sectors

China's merger enforcement agency approved the Google/Motorola merger with conditions. This pattern of approval is not in full accordance with that in other jurisdictions, including the United States and the European Union, which made unconditional approvals. This contradiction attracted ample criticism; some critics believe that China's policy is designed to protect domestic industry. In investigating the Chinese merger agency's decision and the basis for its decision making, this article finds that much of the criticism is groundless and misleading because the critics have failed to incorporate all elements of the global value chain of mobile intelligent terminals into their analyses. The investigation also shows that, although the decision makers are less experienced, their decisions are based on Chinese competition law and market realities. It is important for international firms to be aware of this pattern in merger analysis.     

实力变迁、法律传统与美欧印中贸易政策的演进

国际经济格局的深刻变化引发了美欧印中等主要贸易体贸易政策的变化.这种变化主要体现为其外贸法、外资法和出口管制法的修改,而国际习惯法和国际经济条约对这种修改的约束有限.美欧印中的代表性国际经济法理论分别为"制度管理说"、"规范承诺说"、"贸易民主论"和"责任共担论",这些理论反映了各贸易体的国际经济法传统和理念.以这些理...     

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting-point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis à vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.     

CHINESE INVESTMENT IN THE EUROPEAN UNION & NATIONAL SECURITY

Rapidly increasing foreign direct investment from China within the European Union over the past decade has been, in general, greatly fostered by an open and non-discriminatory legal regime. However, 28 Member States retain control over the review of such investment for purposes of evaluating national security concerns within their respective borders. Current trends reveal a strong likelihood of substantial increases within the coming years in Chinese investment touching upon so-called “strategic” or “sensitive” sectors within the European Union nations. Similar Chinese investment in the United States has raised some strong opposition from the federal government on national security grounds. Accordingly, this article compares and contrasts the European Union’s current fragmented system of national security review with that of the United States — a centralized legal regime which provides for exclusive federal government national security review of foreign investment. The question is then posed as to the likelihood of the European Union adopting an American-style unified national security review system to replace the existing fragmented system, especially in light of the newly enhanced legal competence of European Union authorities over issues concerning foreign investment. This article then concludes with an analysis of the advantages to Chinese investors stemming from the creation of such a European-wide system of national security review.     

Merging self-driving cars with the law

Self-driving cars are gradually being introduced in the United States and in several Member States of the European Union. Policymakers will thus have to make important choices regarding the application of the law. One important aspect relates to the question who should be held liable for the damage caused by such vehicles. Arguably, product liability schemes will gain importance considering that the driver's fault as a cause of damage will become less likely with the increase of autonomous systems. The application of existing product liability legislation, however, is not always straightforward. Without a proper and effective liability framework, other legal or policy initiatives concerning technical and safety matters related to self-driving cars might be in vain. The article illustrates this conclusion by analysing the limitation periods for filing a claim included in the European Union Product Liability Directive, which are inherently incompatible with the concept of autonomous vehicles. On a micro-level, we argue that every aspect of the Directive should be carefully considered in the light of the autonomisation of our society. On the macro-level, we believe that ongoing technological evolutions might be the perfect moment to bring the European Union closer to its citizens.     

Religion in the Workplace: Eweida and Others v United Kingdom

The European Court of Human Rights judgment in Eweida and Others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti‐discrimination norms. In a change of approach, it held that the right to resign could no longer be seen as adequate protection for religious freedom and that workplace norms that restrict religious liberty must satisfy a proportionality test. However, it accorded a wide margin of appreciation to States in reconciling freedom of conscience and freedom from discrimination, ruling that the importance of non‐discrimination could justify a failure to exempt a religious individual from complying with a policy forbidding discrimination on grounds of sexual orientation.     

Why are the United States and the European Union failing to regulate the internet efficiently? Going beyond the bottom-up and top-down alternatives

This paper analyzes the different approaches for Internet regulation. We use the United States and European Union to illustrate the alternative approaches of self-regulation and government intervention. Our research suggests that both systems have serious shortcomings that could be ameliorated by the use of a mixed system for Internet regulation in which both the private and public sector have a role. The case study of privacy rights self regulation in the United States and its failure to effectively provide privacy regulation serves as our empirical evidence. We provide guidelines for both the government and the private sector in defining and enforcing privacy regulation. JEL Classification K33 · K2 · L51 · L86 · O57