Autonomy Of Member States Research Articles

Judicial review of decisions made by national regulatory authorities: Towards a more coherent application of EU sector-specific regulation

It is really striking that—while under the EU regulatory framework for network industries (and for financial institutions) the regulatory actions of national regulatory authorities (NRAs) themselves are subject to a far-reaching influence exerted by other institutional actors in the sectors concerned, in particular by the Commission, with a view to ensuring a coherent and consolidated application by NRAs of the EU sector-specific regulation (and of the EU law regulating financial institutions) across the whole EU—a similar influence is not expressly provided for under the said framework with regard to the regulatory actions of national courts. Such a state of affairs is highly undesirable, because any coherent and consolidated regulatory outcomes, beneficial to the internal market, reached at the level of the NRAs in all member states, may potentially be reversed or undermined by the appealing courts at least in some member states. This extensive immunity of national courts from EU-wide influence, aimed at the consolidation of their regulatory actions, can no longer be justified by the institutional autonomy of member states or the independence of their judiciary. The present article proposes and analyses substantive and institutional solutions that, while observing the specific, independent status of national courts, can efficiently contribute to the achievement of a truly internal market in network-bound sectors (and in financial markets), beneficial to all its participants.

Football and State aid: too important to fail?

High-profile investigations into Dutch and Spanish football have brought the application of EU State aid law in sport into sharp focus, highlighting serious and potentially widespread legal failings throughout professional football in Europe. The EU recognises professional football as economically, socially and culturally vital; thus, in the highly politicised arena of State aid, enforcement is far from straightforward. This overlooked tension between EU law and sport provides a new and interesting angle from which to view the EU’s policy on sport, and the relationships between global actors, the Commission, UEFA, Member States and professional football clubs. The area also makes visible a dynamic interaction of interests, engaging the EU internal market, the societal role of sport, UEFA financial fair play and Member State autonomy. The operation of State aid law in football looks set to revolutionise funding in sport generally, presenting an exciting opportunity for EU sports policy, and also putting impetus behind continued State aid modernisation.

EU Citizenship and Taxation ‘Is the European Court of Justice Moving Towards a Citizen’s Europe?’

The Treaty of Maastricht introduced the status of EU citizenship to the nationals of Member States. Central to that status is the right to move and reside freely within the territory of the Member States, in combination with the right to non-discrimination on the ground of nationality. This contribution argues that the European Court of Justice (ECJ) is in the process of reconceptualizing the economically based treaty rights on the free movement of persons into a right that is becoming more and more disconnected from the EU's objective of the realization of the internal market. That perspective is also recognized in the ECJ's direct tax case law on the free movement of economically active persons and has caused for expansion of the influence of EU law on the direct tax autonomy of Member States. This contribution argues that EU citizenship can be viewed as the normative treaty justification underlying that new perspective.

Status prawny agencji reklamowej w ustawodawstwie polskim

The remit of public service broadcasting includes the obligation of universal programming, which covers all kinds of programmes such as culture, news, entertainment and sport. Several European Union documents stress the special role of Public Service Broadcasting (PSB) in society and acknowledge a far-reaching autonomy of Member States to define and finance their national system of public service broadcasting. All European countries have defined remits for their public service broadcasters. The definition of the mission of PSB in Poland is only related to the activity of the public radio and television. Also the way PSB gives account for its programme activities, and the control of the way PSB fulfils its remit. Theme channels are part of the remit of public service broadcasting. These channels are considered as important and almost self-evident activities of PSB. Nevertheless there is a need for such provisions to define the mission of PSB in Poland. This is necessary to further specify the criteria used to determine whether a service of theme channels which are transmitted by the public television is of an economic or a non-economic nature. This is the most important because of the requirements of state financing of public service broadcasters. These transparency requirements are internal accounts corresponding to different activities – public service and non-public service activities must be separated.

The European Foundation Proposal: A Shift in the EU Tax Treatment of Charities?

On 8 February 2012 the European Commission proposed a Statute for a European Foundation. In this article the Proposal is discussed in the broader context of government support for foundations in the European framework. Therefore, before the Proposal is discussed, the position of foundations in Europe and their role in the Member States' welfare states is briefly analysed. FEs situated in another Member State must be entitled to the same tax treatment as resident foundations. The authors briefly discuss the European case-law with regard to charities and donors. This review is necessary to investigate in what way the Proposal deviates from the current case-law and what the possible implications are for charities, donors and the policy of Member States. The authors conclude that the Proposal for a European Foundation could enhance the cross-border development of charities within the EU and help building a European civil society. Case-law leaves much room for Member States to regulate the tax laws for charities in a non-discriminatory way. The Proposal restricts the autonomy of Member States to define the concept of public benefit. Furthermore, Member States cannot supervise FEs registered in other Member States. The FE might become a vehicle for abuse of tax incentives for charitable giving. In that case, it would be a step back for the European civil society.

After <i>Brüstle</i> : EU accession to the ECHR and the future of European patent law

The aim of the Directive on Biotechnological Inventions 1998 was to harmonize national patent laws in order to bolster Europe's competitiveness in fields involving biotechnological applications. From the beginning, the Directive was met with a barrage of opposition from politicians, political lobbies, religious organizations and academics who called for the need to ensure that ethical principles would not be sacrificed on the altar of commerce and market forces. Human rights were specifically invoked to justify the importation of moral exclusions into the Directive. Yet, little thought was given at the time to the implications and the potential tensions created by the lack of integration between the European Union (EU) and the Council of Europe (CoE) legal orders and courts. This paper analyses and evaluates how the historical tensions are manifested in the paradoxical judgment of the Grand Chamber of the European Court of Justice (CJEU) in the Brüstle case. It is suggested that the CJEU ruling represents a disproportionate interference with the autonomy of Member States and is inconsistent with the degree of autonomy vested in Member States by the European Convention legal order. More generally, the paper uses the Brüstle case as a lens through which to analyse and evaluate the potential impact of the current proposal for the EU's accession to the European Convention on Human Rights (ECHR) on the resolution of emerging tensions.

Is There Still Room Left in EU Law for Tax Autonomy of Member States’ Regional and Local Authorities?

This article aims at determining the conditions under which local and regional authorities may exercise their taxing powers while fulfilling their obligations under European Union law. Furthermore, it seeks to assess the possibility of combining new transfers of tax competences within Member States a(MS) with the achievement of the internal market. It results from the analysis of the EU legislation and case law that, in many respects, EU law not only restricts the exercise by regional and local authorities of the autonomous taxing powers that have been allocated to them in the internal legal order but also limits the autonomy of the MS to organize the allocation of taxing powers between different levels of power.

Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast

AbstractThe Posted Workers Directive was controversial from the outset, and the recent case law from the Court of Justice has made it even more so. In this chapter, the backdrop, genesis, drafting and adoption of the Posted Workers Directive are first considered in turn in order to place it in its context. The Court of Justice’s case law is then considered and contrasted with this background and elaboration of the Directive as it was adopted. The present situation under the Posted Workers Directives is also compared with public international law norms, ILO Conventions and the European Social Charter, and the impact of the Directive in Scandinavia is considered. It is concluded that the case law of the Court of Justice is problematic because of the fact that a normative framework results from its decisions which impinges upon fundamental features of collective labour law and industrial relations: it both entails restrictions on the kinds of terms and conditions of employment which can be imposed, and encroaches upon freedom of collective bargaining more broadly. The autonomy of Member States is also limited and the effectiveness of national industrial relations regimes compromised, which is a highly undesirable outcome.

Revisiting the Posted Workers Directive: Conflict of Laws and Laws in Contrast

AbstractThe Posted Workers Directive was controversial from the outset, and the recent case law from the Court of Justice has made it even more so. In this chapter, the backdrop, genesis, drafting and adoption of the Posted Workers Directive are first considered in turn in order to place it in its context. The Court of Justice’s case law is then considered and contrasted with this background and elaboration of the Directive as it was adopted. The present situation under the Posted Workers Directives is also compared with public international law norms, ILO Conventions and the European Social Charter, and the impact of the Directive in Scandinavia is considered. It is concluded that the case law of the Court of Justice is problematic because of the fact that a normative framework results from its decisions which impinges upon fundamental features of collective labour law and industrial relations: it both entails restrictions on the kinds of terms and conditions of employment which can be imposed, and encroaches upon freedom of collective bargaining more broadly. The autonomy of Member States is also limited and the effectiveness of national industrial relations regimes compromised, which is a highly undesirable outcome.

The Boundaries of the Internal Market after the Lisbon Treaty, A Closer Look at Article 95 EC

The present paper aims to explore the boundaries of EU law following the Lisbon Treaty with specifi c regard to the internal market. Over fi fty years since its inception, the underlying promise of the creation of an internal market remains a key parameter to test the progress of European integration. A constituent aspect of the European legislative agenda, the exact boundaries of a continually developing internal market have to date remained fl uid and contested. This is readily exemplifi ed by considering a provision situated at its heart, Article 95 EC, which enables Community institutions to adopt measures intended to promote the establishment and functioning of the internal market. It is notable that, despite initial suggestions to this effect, the pivotal Article 95 EC has been little altered by the Lisbon negotiations. Article 95 EC represents an important constitutional compromise between the ever-increasing Community competences and the regulatory autonomy of Member States, as well as between the often-confl icting interests of economic progress and welfare protection. This study will revise the complex Article 95 paradigm and outline some of the possible challenges facing this fundamental fi eld in the aftermath of the Lisbon Treaty. Revisiting one of the key historical objectives of the European integration project would not only be conducive to greater determinacy in this specifi c fi eld, but could offer a basis for a broader discussion of what values should characterise the European Union going forward. As the challenges following Lisbon are crystallising, there would appear to be no better time to revisit the strategy to be adopted in the continued pursuit of the effective establishment and functioning of the internal market.

Discontinuity in the Internalization of the World Trade Organization Rules: Assessing the Democratic Deficit Critique Against the World Trade Organization Dispute Settlement System

International institutions are often criticized for their democratic deficit. Among these institutions, the World Trade Organization (WTO) dispute settlement system is most frequently targeted. This article focuses on the strength of this critique and aims to refute its factual premise through the examination of several Panel and Appellate Body decisions. The author also argues that the WTO dispute settlement system deliberately leaves a certain degree of discontinuity between members’ domestic legal orders and the WTO Agreement, such that the system pays a degree of deference to member states and allows substantial discretion in the process of internalizing the rules of the WTO Agreement within domestic legal orders. Finally, the author concludes that this discontinuity remains strong, and serves to enhance the democratic autonomy of member states instead of defeating it.

Regulation 1/2003 (and Beyond): Balancing Effective Enforcement and Due Process in Cross-Border Antitrust Investigations

The exchange and the use of information within the European Competition Network is a key feature of the cooperative enforcement system established by Regulation 1/2003. So is the autonomy of Member States in designing their own national procedural framework for the application of Articles 101 and 102 TFEU. Yet, those two features necessarily affect each other: the diversity of procedural rules and standards in place at national level impinges on the circulation of evidentiary materials, while securing the benefits of the cooperative system induces procedural convergence and thus aligns the exercise of Member States’ autonomy. Such a diversity/effectiveness conundrum raises inevitable coordination issues which affect the position of parties in antitrust proceedings. This paper aims to identify those issues and to provide a consistent framework for the management of effectiveness and due process concerns in an enforcement context bound to remain diverse.

Providing Legal Clarity and Securing Policy Space for Public Services through a Legal Framework for Services of General Economic Interest: Squaring the Circle?

The body of European law which affects public services (services of general economic interest) is constantly growing, and thereby increasingly reducing the political autonomy of Member States and their regional and local subunits to finance and organize public services. This causes uncertainty among public authorities and service providers alike. A legal framework for services of general economic interest could reconcile EC law with public services and provide for greater legal clarity. However, such a framework raises a number of fundamental legal questions concerning its legal basis and its relationship with other sources of EC law. This contribution argues that a legal framework for services of general economic interest could clarify key terms of EC law affecting public services, and could be based on the current EC Treaty. A legal framework could not however, alter the overall framework of primary law with its emphasis on competition in a free market.

Richard Jebb, John S. Ewart and the Round Table, 1898-1926

During the early twentieth century the idea of imperial federation was revived by Lionel Curtis, the founder of the Round Table group. However, Curtis did not succeed in generating much support in the settler Dominions (which were central to his schemes) for either an imperial parliament or an imperial cabinet. Curtis's failure has often been interpreted as proof of an inevitable clash between British ‘imperialism’ and the ‘nationalism’ that was emerging in the Dominions at this time. However, it may be better understood as a reflection of the strength of a narrower, ‘patriotic’ determination in the Dominions to protect the autonomy of local state structures. ‘Britannic nationalist’ sentiment in the Dominions (which emphasised the existence of a community of culture encompassing Britain and the Dominions) was meanwhile far from opposed to other forms of closer imperial unity, forms that did not challenge the autonomy of member states. This claim is supported by an analysis of Canadian responses both to Curtis's schemes and to the alternative ideas championed by Richard Jebb, a British writer on imperial relations. Jebb developed a network of alliances with like-minded Britannic nationalists in Canada, and discussed with them how local autonomy could best be reconciled with the need for imperial co-operation. Examining the interaction between Jebb's ideas and those of Canadian thinkers such as Arthur Hawkes, John A. Cooper, J. W. Dafoe, and, most importantly, the Ottawa lawyer and constitutional expert John S. Ewart, helps show the true significance of the failure of Curtis's schemes, and reveals underlying continuities between pre- and post-First World War debates about imperial consultation.

The Idea of a European Constitution

Any abstract account of a field of law must make generalizations that are both faithful to the legal materials and appropriate to the subject matter's aims. The uniqueness and fluidity of the European Union's institutions makes such generalizations very difficult. A common theoretical approach to EU law (one that is often relied upon by the Court of Justice, the Parliament and the Commission) is to borrow directly from the theory of domestic constitutional law. The most recent manifestation of this tendency is the draft Treaty on the European Constitution, which includes many of the symbolic features of a domestic constitutional order. But the European Union is not a state and the constitutional analogy is in many ways problematic. In this article I defend the view that a more complex theory is more appropriate to the unique combination of ordinary politics with diplomatic conferences that constitutes the European Union. The key to these institutions is, in my view, a Kantian international ideal of liberal peace. The foundational constitutional principles of the EU, principles that both fit the current legal framework and offer its most attractive interpretation, require the qualified autonomy of member states in a union of republics that create collective institutions for the purposes of liberal peace.

Dezentraler und unitarischer Föderalismus. Die Schweiz und Deutschland im Vergleich

In this article it is endeavoured to analyse the different functioning of “decentralised” (Switzerland) and “unitary” (Germany) federalism. This is done by discussing the cultural and political autonomy of member states, the possibilities of member states to control and influence federal decision‐making, the ways to implement federal legislation, and the redistribution of resources. There are, despite of “equi‐functional” structures, considerable similarities in the functioning of both countries. The predominance of a completely different discourse of justification in both countries explains the institutional and procedural differences and thus the different reform projects.

The Canadian Generic Medicines Panel

Among the most important criticisms of the World Trade Organization that echoed loudly in the protests in Seattle in November 1999 is that the WTO unduly constrains the regulatory autonomy of Member States, defeating or frustrating democratic choices in important areas of social, economic, environmental and cultural policy. When properly interpreted and applied, many WTO rules do, however, permit a considerable amount of regulatory dwersity, provided the domestic policies in question do not discriminate against foreigners. The area where the WTO does interfere most explicitly in the abhty of governments to strike a balance in their policies between diverse public values is that of intellectual property. The Agreement on Trade-Related Aspects of Intellectual Property Rights does prescribe substantive standards of intellectual property protection,' limiting the abhty of democratic polities to strike their own balance between the provision of incentives for innovation on the one hand and consumer welfare on the other; nor are these the only public values at stake, as debates surroundmg biodwersity and intellectual property clearly illustrate. Moreover, on a conventional economic analysis, unlike the removal of tariffs, quotas and other overtly discriminatory trade barriers, raising intellectual property protection may actually reduce total domestic and even global economic welfare. For example, in the case of increased patent protection, the adhtional monopoly rents to producers may generate little addtional (efficient) innovation, whde creating substantial welfare losses to consumers, who are deprived of cheaper imitations of patented products.2 As Maskus suggests:

The economics of parallel trade.

The potential for parallel trade in the European Union (EU) has grown with the accession of low price countries and the harmonisation of registration requirements. Parallel trade implies a conflict between the principle of autonomy of member states to set their own pharmaceutical prices, the principle of free trade and the industrial policy goal of promoting innovative research and development (R&D). Parallel trade in pharmaceuticals does not yield the normal efficiency gains from trade because countries achieve low pharmaceutical prices by aggressive regulation, not through superior efficiency. In fact, parallel trade reduces economic welfare by undermining price differentials between markets. Pharmaceutical R&D is a global joint cost of serving all consumers worldwide; it accounts for roughly 30% of total costs. Optimal (welfare maximising) pricing to cover joint costs (Ramsey pricing) requires setting different prices in different markets, based on inverse demand elasticities. By contrast, parallel trade and regulation based on international price comparisons tend to force price convergence across markets. In response, manufacturers attempt to set a uniform 'euro' price. The primary losers from 'euro' pricing will be consumers in low income countries who will face higher prices or loss of access to new drugs. In the long run, even higher income countries are likely to be worse off with uniform prices, because fewer drugs will be developed. One policy option to preserve price differentials is to exempt on-patent products from parallel trade. An alternative is confidential contracting between individual manufacturers and governments to provide country-specific ex post discounts from the single 'euro' wholesale price, similar to rebates used by managed care in the US. This would preserve differentials in transactions prices even if parallel trade forces convergence of wholesale prices.