EC Legislation Research Articles

Towards a New Architecture for European Banking Supervision

Under Article 25 of the ECB Statue, the ECB may only render opinions on the scope and implementation of EC legislation on prudential supervision and financial stability. This provision raises the question how supervision on multi–jurisdictional financial conglomerates can be best allocated.

The ECJ's 'Hard' Control over Compliance with International Environmental Law: Its Procedural and Substantive Aspects

AbstractThis study shows that the ECJ, while not directly applying and interpreting environmental treaties, exercises procedurally and substantively 'hard' control over compliance with EC legislation implementing those treaties, in the fields of nature conservation and hazardous waste management, on certain conditions and within certain limits. This study also shows that the ECJ's acknowledgment of its exclusive jurisdiction on the marine environment as seen in the 2006 MOX Plant case has contradictory effect on its substantively 'hard' control: such acknowledgment, although being a plus factor where there is no Community measure, becomes a minus factor since it in practice means that there already exist Community measures. Although the above observations are also instructive to other international judiciaries' study, structural and situational differences should be considered.

The environmental complaint in EU law

AbstractThe European Commission which has a large discretion to decide which infringements of EC environmental law it will pursue, has recently published communications which announce that it will concentrate on the transposition of EC legislation into the law of the Member States. This omits to structurally address the practical application of environmental legislation. Strong environmental groups which could contribute to the effective application of EC environmental law, lack; this feature makes the environmental sector different from most other economic or social sectors, where strong interests—professional bodies, trade unions, competitors, trade and industry associations, farmers' associations—promote the defense of their respective interests. All the more is the environment dependent on the commitment of the civil society to preserve and protect it. The contribution examines the instrument of the environmental complaint in EU law and criticizes the Commission's attempt to stop using the complaint system as a tool to assess practical application of EC environmental law in the Member States, though it is almost the only one existing.

The 14th Ec Company Law Directive on the Cross-Border Transfer of the Registered Office of Limited Liability Companies — Now or Never?

This paper analyses two academic legislative proposals concerning cross-border company migration. A ‘European’ proposal develops a future EC Directive EC, and a more national law-oriented approach is pursued by the ‘German’ proposal. First, the outcome of a Consultation round held by the European Commission for the business world and a brief overview of EC law as it currently stands are described. The description of the legal status quo concerning cross-border company migration on the community level is followed by a brief reference to pending Case EJ C-210/06 Cartesio, which appears to offer the opportunity of a link between the EC judicature and future EC legislation. Subsequently, both academic proposals, elaborated within the ambit of the Deutsche Rat für Internationales Privatrecht, are given detailed attention. The conclusion is that with a view to Article 44(2)(g) of the EC Treaty, the EC legislator cannot abstain from elaborating a clear secondary EC law instrument in order to safeguard the justified interests of both companies and firms migrating throughout Europe and of those doing business with these entities.

Consumer Information on GM-Food in Switzerland and WTO Law

The WTO's objective is to provide for sustainable market liberalization, thus, allowing for the integration of markets to the benefit of producers and consumers alike. On first sight, harmonization of domestic regulatory measures would be the foremost objective of the two agreements. The elimination of illegitimate, regulatory measures covered by the TBT Agreement would contribute to greater market harmonization, larger economies of scale and thus higher consumer and producer benefits. Unlike for tariffs, the evaluation of the trade restrictiveness of domestic regulatory measures is complicated by uncertainties over their effects. Common sense suggests that regulatory protectionism occurs. However, distinguishing between protectionist and non-protectionist domestic regulations raises questions of legitimacy and adequate standards of review (subsidiarity) to a much larger extent than for border measures. There can be no doubt that the WTO Agreements do not prohibit the taking of domestic regulatory measures per se. Rather, the Agreements' objectives are to prevent that regulatory measures are taken for protectionist (i.e. illegitimate) purposes and are neither discriminatory nor impair trade more than necessary. Besides the EU Switzerland is one example of a WTO Member who has implemented legislation both on GM-food safety and labelling. Switzerland was one of the first countries establishing a mandatory labeling regime for GM-food in 1995. The scheme has been modified several times and a major revision is planned to enter into force on January 1 2005. The latest revision will bring Swiss GM-food labeling more in line with recent EC legislation on GM food and feed adopted in 2003. This paper will review the existing and planned Swiss labelling scheme for GM-food. It will compare it with analogous EC legislation and provide an analysis of pertinent issues relating to the WTO Agreements.

The Ever-longer Arm of EC law: The Extension of Community Competence into the Field of Criminal Law

The physical and legal borders of the European Community have been subject to a large number of changes in recent years. Throughout this period of transition Member States have sought to ensure that certain parameters remain unchanged. One such example is the province of Member States to determine which behaviour to punish by way of criminal sanctions. However, the recent judgments of the (ECJ) in the Cases C-176/03 and C-440/05 have changed these parameters by confirming that the European Community may provide for the imposition of criminal sanctions in certain policies. This article outlines these judgments and examines their impact, addressing a number of questions they left open. It also seeks to highlight the challenges the Community legislature will face should it seek to integrate criminal sanctions into EC legislation. While the shortfalls of the ‘double text’ situation cannot be denied, these flaws result from a deliberate decision by the Member States to attribute criminal competence to the EU under the Third Pillar, rather than to the EC under the First Pillar. It is thus unfortunate that such a consideration was not given greater weight by either the ECJ in its judgments, or the Commission in its extensive interpretation of the Court’s judgment in Case C-176/03.

Vers une convergence des droits allemands et français des sociétés ?

A convergence between the French and the German Corporate Law, still very different in various details, realizes itself on the one hand indirectly by the implementation of European Community Law and on the other hand by the spontaneous interchange of ideas. When the harmonization through EC legislation seems at first glance a reality, it allows, however, in its details a wide scope for discretion in favour of the different national Laws. The outcome concerning the spontaneous convergence by a direct exchange of basic ideas and judicial concepts between the two countries is as well ambiguous. Whereas a decrease of comparative studies and an orientation concentrating more and more on Anglo-Saxon systems is to observe, a convergence turns out regarding general tendencies and principles, which both encourage legislators while answering to certain common problems.

EC Legislation: European Community Legislation and Actions

EC Legislation: European Community Legislation and Actions

EC Legislation. European Community Legislation and Actions

EC Legislation. European Community Legislation and Actions

Table of EC, National and International Legislation

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EC Financial Services and Contract Law – Developments 2005–2007

The contribution is a follow-up of the overview published in ERCL 2005, 482. While the law with respect to prudential supervision changed little, contract law developed considerably. This is so despite the fact that no important new legislation has been adopted: In the area of commercial banking, the new Consumer Credit Directive is still under discussion. There is, however, an ambitious project to regulate all payment instruments in one sole legal measure, namely: credit transfers, credit and debit cards and direct debit. In the area of investment banking, the Market in Financial Instruments Directive of 2004 (MiFID) had to be transposed in the Member States until 1st November 2007. This is important because the so-called Lamfalussy regulatory architecture which was used for this directive is about integrating more coherently EC legislation, national transposition and effective implementation. Therefore, while giving a general overview as well, the article concentrates on these two developments: the proposal for a payments directive and the transposition of the MiFID.

A Wasteless Method for Utilization of Bones and Other Wastes Obtained at Industrial Processing of Hens

ABSTRACTCurrently materials released by hen-processing plants are landfilled. An easy for performance and application method for partial hydrolysis by ortho-phosphoric acid of these wastes is described. As a result a small fraction of fat, easily soluble peptone and a homogeneous residue containing calcium and magnesium phosphatesas well as partially degraded protein were obtained. The wastes were hydrolyzed at temperature of 98 ± 5 °C in polypropylene containers that withstand temperatures of up to 135°C.) We consider that the fat could be used for preparation of soap, the soluble peptone—in the microbiology for preparation of broth media for microorganisms, while the insoluble residue—as food for pets or as a fertilizer in the horticulture. The method allows the factory wastes to be transformed into useful products and to avoid their incineration. The implantation of the method in the practice excludes the necessity of application of the EC legislation for destroying biological wastes since such are not thrown away. The results are: saved resources, waste products utilization and avoiding the environmental pollution with toxic nitrogen compounds liberated from the proteins during incineration.

Locus Standi of Private Applicants under the Article 230 EC Action for Annulment: Any Lessons to Be Learnt from France?

This article examines the rules on locus standi of private applicants under the Article 230 action for annulment of the EC Treaty. It adopts a comparative approach to the question of standing of private parties to challenge a piece of secondary EC legislation under the action for annulment, by contrasting the standing rules in Article 230(4) EC, as interpreted by the ECJ and the CFI, with those, elaborated by the Conseil d'Etat, on locus standi of private applicants to challenge French administrative acts in a Recours pour Excès de Pouvoir (REP). Four major aspects will be considered: the types of acts amenable to review by non-privileged applicants, the two requirements of direct and individual concern and their equivalent in French administrative law (in particular the differences between the notions of ‘cercle d'intérêt’ and of'closed class'), as well as the locus standi of associations. The premise of this paper lies in the suggestion that ‘a revision of the Treaty which would borrow from the Member States' systems of judicial review should be considered’. Due consideration will be taken of the limits of comparing a supranational legal order to a national one. This comparison should be considered as a pretext to analyse the standing rules for private applicants under the action for annulment, and suggest possible improvements to these conditions in the light of the constitutional reflection on the role of citizens and of the civil society underlying the liberal standing requirements in French administrative law. The objective of this paper is therefore to demonstrate the inappropriateness of the strict locus standi rules for private applicants under Article 230(4) EC, and the refusal to abandon the ‘closed class test’ and the Plaumann formula, even where the applicants constitute a ‘small and easily identifiable group’, as the ECJ made clear in UPA and Jégo-Quéré. The need for reform of standing rules for non-privileged applicants is particularly pressing in light of the inadequacy of alternative mechanisms of judicial review and of the principle of effective judicial protection. In this respect, the modifications of the unratified 2004 Constitutional Treaty were clearly insufficient, and the 2007 Treaty of Lisbon, signed in December, reiterates this mistake by adopting an identical formulation of the standing rules for private applicants to that in the 2004 Constitutional Treaty.

Developments in EC competition law in 2006: An overview

This article covers the major developments and general trends in EC competition law and policy in 2006. It discusses new EC legislation and other instruments adopted by the Commission of the European Communities, such as the steps taken to strengthen the Commission’s enforcement of the competition rules by the adoption of the 2006 Guidelines on the method of setting fines and the 2006 Leniency Notice. The decisional practice of the Commission is considered, in particular in the fields of cartels, fines and penalty payments, and merger control, along with recent policy initiatives, such as the potential roles of direct settlements of infringement proceedings and of private enforcement, primarily through damages actions for breaches of the competition rules. The case law of the Court of Justice and Court of First Instance during the period is surveyed. Important judgments regarding key concepts affecting the general application of the substantive provisions of Articles 81 EC and 82 EC, such as Meca-Medina, FENIN, SELEX and O2 Germany are addressed, as well as a number of rulings by the CFI on procedural issues, including certain rulings on the Austrian Banks — Club Lombard proceedings. Key case law on vertical agreements, such as GSK and Unilever Bestfoods is dealt with, as are the principal judgments concerning cartels and competitor cooperation, which principally focus on the levels of financial penalties imposed and largely confirm the Commission’s wide discretion in that area.

The double-headed approach of the ECJ concerning consumer protection

This article analyses the development of EC consumer law by looking in detail at the approach taken by the European Court of Justice in its case law in this field, and the impact that this had had upon national law in certain areas. It contends that the Court has taken contrasting approaches to the desirable extent of consumer protection laws, depending upon whether that protection derives from national laws which operate as derogations from the EC’s Treaty rules on the internal market or from positive legislative activity at EC level. In the former area, the Court has been unwilling to accept many such national consumer protection measures, regularly finding them not to be necessary for achieving the relevant goal or to be disproportionate to that end. In the latter area, however, the Court has consistently given an expansive interpretation to the provisions in the directives on consumer protection. The reasons behind this difference in approach are discussed and it is suggested that the Court’s support for more interventionist consumer protection measures when interpreting the scope of EC legislation sometimes fails in fact to secure the protection which the Court seems to require, or only does so at the cost of far-reaching effects upon other areas of law and practice in the relevant sectors. In conclusion, it is suggested that these differences relate to the Court’s perception of its function in interpreting and applying the primary rules of the EC Treaty, on the one hand, and in promoting the objectives of secondary law adopted under that Treaty, on the other. Two fundamentally conflicting policies are the result: free trade is the priority of primary legislation while interventionist consumer protection lies at the heart of the case law on secondary legislation. Yet the Court’s holdings merely point to a deeper-level tension in the fabric of the Community’s philosophy of market regulation.

Basel 2: the implementation in the UK of its capital requirements for banks

Banks that are regulated in the UK have lived with regulatory capital adequacy requirements since 1988 when the original Basel Capital Accord came into effect. Basel 2 effected a substantial revision to the old regime. The capital requirements of the Basel 2 Capital Accord were intended to become effective from the beginning of 2007 and, in pursuance of EC legislation, have now been implemented in the UK. This article describes the more important features of the application of the Basel 2 capital requirements in the UK, including a comparison with the position that applied previously, as well as the related subjects of large exposures and liquidity requirements.

The Green Paper on Damages Actions for Breach Of The EC Antitrust Rules and Beyond: Reflections on the Utility and Feasibility of Stimulating Private Enforcement Through Legislative Action

The article seeks to demonstrate that legislative action to facilitate the enforcement of damages claims in European competition law is both possible and desirable. A stimulation of stand alone actions concerning hard-core infringements is however considered unrealistic; only follow-on actions, which have a limited enforcement value, can be encouraged by legislative measures. In contrast, damages actions concerning grey-area offences can and should be facilitated. These infringements tend to be exclusionary in nature so that the private interest in pursuing a case will often outweigh the public interest. The focus on damages actions is however too narrow. Relevant EC legislation should also establish and define the core elements of injunctive relief. For both damages and injunctive relief, the main hurdle is the legal (and economic) complexity of these cases and the resultant difficulty in proving the illegality of the conduct. This is where legislative action could be useful. While this complexity cannot be changed as such, it is possible to somewhat reduce the risk connected with unpredictability. Legislative action should therefore also deal with the other elements of these remedies, in particular causation, contributory negligence, protective scope and the issue of passing on and indirect purchasers’ claims.

Table of EC, International and National Legislation

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Private Antitrust Enforcement at a Roundabout

Private enforcement of EC competition law has reached a new stage with the publication of the European Commission’s Green Paper entitled ‘Damages actions for breach of the EC antitrust rules’. Even though it is unclear whether any legislative action at the Community level will follow, the Green Paper has triggered a lively debate. Private enforcement faces a number of external challenges, such as the possibility of introducing a ‘plea bargaining system’ into EC competition law, the ‘more economic approach’ and coordination with public enforcement. Private enforcement is furthermore beset with a number of intrinsic difficulties, the passing-on problem arguably being the central one. This article attempts to find a solution to that problem, i.e., to the difficulties raised by the passing-on of damages through the various levels of the distribution chain. After evaluating the options proposed by the European Commission in its Green Paper, it comes to the conclusion that a ‘factor approach’ is the most appropriate. A draft provision for potential secondary EC legislation addressing the passing-on problem is offered, attempting to reconcile the insights of economic theory with the exigencies of civil litigation in the courthouse. This provision stipulates the unavailability of the passing-on defence against direct purchasers unless the direct purchaser has entered into a fixed-quantity, cost-plus contract with his purchaser. Indirect purchasers are entitled to damages provided there is no break in the chain of causation. Their damages should be quantified on the basis of the price difference at the direct purchaser level, i.e., the difference between the price actually paid by the direct purchaser and the hypothetical price the direct purchaser would have paid but for the cartel. This amount is multiplied by a certain factor (fraction) taking into account the likely pass-on rate.

The Blocking Legislation as a Countermeasure to the US Anti-Dumping Act of 1916: A Comparative Analysis of the EC and Japanese Damage Recovery Legislation

The Blocking Legislation as a Countermeasure to the US Anti-Dumping Act of 1916: A Comparative Analysis of the EC and Japanese Damage Recovery Legislation