First Lady: Wilma Viscardini Donà, Eurolawyer

Disharmonization in the Regulation of Transgenic Plants in Europe

EU Competition Law Enforcement Vis---Vis Exploitative Conducts in the Data Economy Exploring the Terra Incognita

This book investigates whether the European Commission (EC) has the mandate to legislate on direct taxation in sovereign states and ultimately questions whether the EC's enforcement action in recent tax ruling cases, in the area of State aid, respects the rule of law. Liza Lovdahl Gormsen explores whether the EC's recent rulings in relation to Member States' advanced pricing arrangements reflect a genuine problem of illegal State aid or whether the EC is attempting to use State aid rules to harmonise national tax systems. The author examines this issue through relevant case law, comparing the EC's actions with OECD guidance and US practices, assessing what is legitimate in terms of the EC's actions and competences. Through the lens of State aid and tax rulings, the author addresses the wider constitutional question of how to reconcile national interests with the move towards European harmonisation; does the answer lie in more integration, or less? This book will be of great interest to academics researching the relationship between the EC and Member States in regards to taxation, State aid and authority over direct taxation. Practising lawyers working in the field of State aid and tax will also find this to be a useful resource as it clearly outlines relevant case law and interprets the resulting decisions.

When implementers use Standard Essential Patents (SEPs) without obtaining licenses – because parties cannot agree on royalties –, patent owners are entitled to bring infringement actions against them, seeking prohibitory injunctions and the recall of products. However, as SEP holders gave commitments to grant licenses to third parties on Fair, Reasonable and Non-Discriminatory (FRAND) terms, alleged infringers accuse SEP owners of abusing their dominant positions for bringing the aforementioned actions. Due to an absence of express guidance from Standard Setting Organizations’ patent policies, there was a considerable degree of uncertainty as to the lawfulness of SEP holders’ behaviour. Accordingly, the European Commission – in Samsung and Motorola – and the European Court of Justice (ECJ) – in Huawei v. ZTE – pronounced on the issue. Both treated that conduct as a specific and novel category of abuse within the meaning of Article 102 TFEU. Nevertheless, it should have been treated as a refusal to deal – to grant SEP licenses. In order to do that, it must be argued that bringing those infringement actions by SEP holders constitutes a ‘constructive’ refusal to grant licenses, in consistency with a critical review of IMS Health – issued by the ECJ. In this way, Huawei v. ZTE would be consistent with the ECJ’s case law on refusal to deal. Consequently, the compulsory license would emerge as the most proportionate and necessary remedy to end effectively the infringement of Article 102 TFEU committed by SEP owners. In US, de facto compulsory licenses – ‘ongoing royalties for future infringements’ – are also employed, although to remedy patent infringements. Nevertheless, that divergence between US and EU illustrates that when parties fail to enter into licensing agreements on FRAND terms, the compulsory license might be ‘the tool’ to make SEP licenses available to all stakeholders.

Over the years, both the European Commission and the national competition authorities have played a crucial role in the enforcement of Articles 101 and 102 TFEU. In the last year, the network of competition authorities has become a multi-center, united network supporting innovative ideas and legal principles. In contrast, European Courts, at least during the last year, appear to have been over formalistic in their approach, all too often in line with the Commission, paying more attention to procedural rather than substantive issues. In the last year, the European Commission and the European Courts have analyzed many important cases in different economic sectors in relation to the application of Articles 101 and 102 TFEU, which have raised many complex legal and factual issues. In some cases the European Commission and the European Courts were confronted with new questions, while the outcome of other cases helped to clarify long-lasting debates. The analysis of decision-making practice and case law highlights some major issues in recent antitrust enforcement, namely: (i) the boundaries of the notion of restriction “by object”; (ii) the enhanced role of economic analysis in the assessment of unilateral exclusionary conduct, in line with the European Commission’s Guidance Paper on Article 102 TFEU; (iii) the notion of potential competition and market definition, as well as the interplay between the regulatory framework and EU competition law; and (iv) the growing importance of e-commerce, which has led the European Commission to step up its scrutiny of vertical restraints in online distribution, and the interplay between e-commerce and copyright. There have been further interesting developments at the EU level in antitrust procedure, legislation and policy.

The Substantive Law of the EEC. By Derrick Wyatt, M.A., LL.B. (Cantab.), J.D. (Chicago), of Lincoln's Inn, Barrister, Fellow of St. Edmund's Hall, Oxford, and ALAN DASHWOOD, B.A. (Rhodes), M.A. (Oxon.), of the Inner Temple, Barrister, Legal Secretary, Court of Justice of the European Communities. [London: Sweet & Maxwell Ltd.1980. xxvi, 377 and (Index) 8 pp. Hardback £19·50, paperback £13·00 net.] - Basic Community Laws. Edited by Bernard Rudden, Professor of Comparative Law, University of Oxford, Fellow of Brasenose College, Oxford, and Derrick Wyatt, Fellow of St. Edmund's Hall, Oxford. [Oxford: Clarendon Press. 1980. xv and 301 pp. Hardback £12·50, paperback £4·95 net.] - A Guide to European Community Law. Third edition. By P. S. R. F. Mathijsen, Director-General with the Commission of the European Communities, Professor of Law, University of Nijmegen. [London: Sweet & Maxwell Ltd.1980. xxxiii, 243 and (Index) 12 pp. Hardback £12·25, paperback £9·75 net.] - Volume 41 Issue 1

Legal issues of personal jurisdiction in e-commerce in the European union, the United States and Australia : proposed solutions

The bank bailouts following the global financial crisis of 2008 have been subject to prior approval of the European Commission (EC), the competition authority of the European Union. The EC was reluctant to reject rescue efforts directed at failing banks and so it consistently approved all such requests submitted by Member States. Out of the top twenty European banks, the EC authorized State aid to at least twelve entities. In this context, the paper outlines the gradually changing interpretation of EU State aid rules, the “temporary and extraordinary rules” introduced starting from late 2008, and the extension of the “no-State aid” category. The above shifts show that the EC itself deflected from relevant EU laws in order to systemically rescue important banks in Europe and restore their financial stability. The paper argues that bank bailouts and bank rescue packages by the State have led to different effects on market structures and consumer welfare in the Eurozone and non-Eurozone areas, mostly the Eastern segments of the European Union. As such, it is argued that they are inconsistent with the European common market. Although the EC tried to minimize the distortion of competition created as a result of the aforementioned case law primarily through the application of the principle of exceptionality and different compensation measures, these efforts have been at least partially unsuccessful. Massive State aid packages, the preferential treatment of the largest, or systemically important, banks through EU State aid mechanisms – almost none of which are Central and Eastern European (CEE) – may have led to the distortion of competition on the common market. That is so mainly because of the prioritization of the stability of the financial sector and the Euro. The paper argues that State aid for failing banks may have had important positive effects in the short run, such as the promotion of the stability of the banking system and the Euro. In the longrun however, it has contributed to the unprecedented sovereign indebtedness in Europe, and contributed to an increased economic and political instability of the EU, particularly in its most vulnerable CEE segment.

The Evolution of the Law and Policy on Tying: A European Perspective From Classic Leveraging to the Challenges of Online Platforms

The European Court of Justice (ECJ) recognized in Courage v. Crehan and recalled in Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA the right of ‘any’ individual to claim damages for infringements of Articles 81 and 82 EC. As a reaction to both judgments, the European Commission published, after the Ashurst report, a Green Paper and later a White Paper on damages actions for breach of EC antitrust rules. Two of the obstacles that private parties face in antitrust damages action are the indirect purchaser standing and the passing-on defence. This paper analyses both the indirect purchaser standing and the passing-on defence in a comparative law perspective, between the law of the United States and EC law. This paper finds, after analyzing the US case law and the current economic discussion around the passing-on issue, that it is too difficult for the judiciary to calculate the passing-on. This paper finds therefore that the choice to allow or reject both the passing-on defence and indirect purchaser standing is policy related. Finally, the passing-on defence and indirect purchaser standing in the EU and the European Commission’s White Paper is discussed. This paper finds that the European Commission’s choice to allow both the indirect purchaser standing and passing-on defence is justified from the perspective of policy considerations. Nevertheless, this paper concludes that the European Commission did not succeed in providing strong solutions to the problems that are associated with the indirect purchaser standing and the passing-on defence.

The European Commission's Interpretative Guidance and National Courts

As in any community, coexistence and cooperation only works if it is well organized. In the EU, there are EU bodies for this purpose. We all know that living together of different members can often lead to a dispute. In the European Union, the subject of dispute can not only be the violation of primary law, but also the violation of secondary community law. In order to better understand the important role of the Commission in the EU, we examine in this paper its composition and Tasks. We know that the European Union is based on the rule of law. This means that every EU activity is based on treaties that have been accepted by all EU Member States on a voluntary and democratic basis. A contract is a binding agreement between the EU member states. It sets out the objectives of the EU, the rules governing the EU institutions, the decision-making process and relations between the EU and its Member States. Therefore it is important to adhere to these treaties to carry out community policy. According to Art. 258 and 259 of the Treaty on the Functioning of the EU, actions for breach of contract can be filed against a Member State by the EU Commission or another Member State (1, Art.258-259). For the European Commission, as the «Guardian of the Treaties», this option is a particularly important instrument of power politics that it can use against member states' governments that do not recognize or do not comply with the norms of Community law. In practice, the infringement procedures requested by the Commission are of particular importance for ensuring compliance with Community law by the Member States. In no other area does the Commission have so much power and independence against the Member States. Now we should take a closer look at the EU institution and especially the EU Commission.

Some lawyers and businesses have claimed that, because of an increase in the level of antitrust fines imposed by the European Commission in recent years, these fines have become criminal in nature and that the current institutional and procedural framework in which fines are imposed by the European Commission, with subsequent judicial review by the EU Courts, is no longer compatible with the European Convention on Human Rights (ECHR). This paper critically examines those claims. The main point to be retained is that the case law of the European Court of Human Rights distinguishes between, on the one hand, the hard core of criminal law and, on the other hand, cases which are ‘criminal’ within the autonomous meaning of the ECHR but which do not belong to the hard core of criminal law. Irrespective of any increase in their level, the antitrust fines imposed by the European Commission only belong to the second, broader category of criminal penalties, and the European Court of Human Rights has consistently held that it is compatible with the ECHR for such penalties to be imposed, in the first instance, by an administrative or non-judicial body such as the European Commission.

Pricing Abuses by Essential Patent Holders in a Standard-Setting Context: A View from Europe

With its Kadi-judgment, the European Court of Justice (ECJ) firmly rejected the first instance Kadi/Yusuf-judgments of the Court of First Instance (CFI). The ECJ made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the effective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention on Human Rights (ECHR). As a result, the ECJ proved that the Community is indeed based on the rule of law and that the fight against terrorism – how important it may be – cannot be used as a justification for completely abrogating European constitutional values as guaranteed within the Community and its Member States.