European Rules Research Articles

Case Management in Europe: A Modern Approach to Civil Litigation

The present paper starts with a discussion of the origins of two fundamental procedural principles: the Verhandlungsmaxime and the Untersuchungsmaxime, first distinguished by the Bavarian legal scholar Nikolaus Thaddäus (von) Gönner (1764–1827). Subsequently, as an example, an early-modern Dutch treatise on civil procedural law by the Flemish jurist Philips Wielant (1441/42–1520) is studied, focusing on the role of the judge and the parties in civil litigation. It is demonstrated that a model of civil litigation based on the learned Romano-canonical procedure (the ancestor of most systems of civil procedural law in Europe) took a balanced approach to the role of the judge and the parties in civil litigation, an approach that is present throughout the literature on civil procedure in the early-modern period. Next, a short overview of European developments as regards the role of the judge and the parties in civil litigation from the 19th until the early 21st century is provided. And finally, the current work of the European Law Institute and Unidroit in drafting European rules of civil procedure, more specifically the rules governing the role of the judge and the parties (and their lawyers), is discussed. One of the aims of this paper is to show how the suggestions made by the working group responsible for drafting rules governing the judge and the parties fit well in European developments that may have started at the time of the introduction of the Romano-canonical model of litigation in the secular courts of the late medieval and early-modern period.

I limiti oggettivi del ne bis in idem in Italia tra fonti nazionali ed europee

É premissa consolidada que o ne bis in idem constitua um direito fundamental, protegido por uma pluralidade de fontes nacionais (art. 649 do c.p.p. italiano) e supranacionais (art. 50 CDFUE e 4° protocolo CEDH). Entretanto, exatamente a “tutela multinível” dos direitos fundamentais que caracteriza o ordenamento italiano – paradoxalmente – corre o risco de se transformar em um obstáculo à mais ampla operabilidade dessa garantia. Ademais, nos panoramas italiano e europeu, as previsões que especificam os pressupostos para a aplicabilidade dessa garantia se caracterizam por um conteúdo heterogêneo (identidade do fato; identidade da infração), destinado a incidir negativamente sobre a definição da perspectiva objetiva da proibição de dupla persecução. Por outro lado, a interpretação das mesmas previsões por parte da jurisprudência italiana, ordinária e constitucional, e pelas Cortes supranacionais torna ainda mais incertos os confins do efeito preclusivo gerado por uma decisão irrevogável. Em particular, alude-se as hipóteses em que o ne bis in idem entre em jogo em relação ao “duplo binário sancionatório”, por força do qual o mesmo fato é sancionado, contemporaneamente, em campo penal e em campo administrativo. A reconstrução da perspectiva da garantia atribuída ao art. 649 do c.p.p. italiano deve partir da valorização do princípio de legalidade processual e implica, portanto, por um lado, a recondução da unidade do pressuposto representado pelo mesmo objeto dos diferentes procedimentos; por outro lado, evitar soluções casuísticas, contrárias ao princípio de legalidade, em relação ao pressuposto da duplicação dos diferentes procedimentos que se refiram ao mesmo fato.

European state aid law and tax incentives in Ukraine

On January 1, 2016, the Association Agreement between Ukraine and the EU came into force, according to which Ukraine should implement European Union rules on state aid. Although these rules are not intended to regulate in any way the tax policy of either EU member states or Ukraine, they limit the possibilities for applying tax incentives. Ukraine is not EU member state and for this moment has no perspective to become a member. That is why some questions arise concerning the way of state aid rules application to economic entities in Ukraine, their monitoring at the national level and consequences for Ukraine if it does not comply with these rules. The article contains a research on the peculiarities of the application of tax incentives in view of the implementation of the European state aid legislation in Ukraine. The author analyzes the European rules of state aid and their application in the tax area. The author has defined what tax measures may fall under the European law on state aid. A simplified taxation system, which is one of the most important tax incentives in Ukraine, will not fall under the rules on state aid. But the possibility of applying tax incentives for large companies will be limited. As a result of the study, it was found that the Anti-Monopoly Committee of Ukraine could have serious difficulties in stopping and returning illegal state aid. The author concludes that, in case of Ukraine's non-compliance with its state aid obligations, the most probable scenario will be long negotiations with EU and simultaneous introduction of customs duties on the relevant commodities. By 2023, Ukraine will be in a transitional period for state aid rules application, and during this time, their implementation will have a serious impact on taxation in Ukraine.

Modernising the Law on Abuse of Market Power: Report for the Federal Ministry for Economic Affairs and Energy (Germany)

Digitization has transformed – and continues to transform – the economy. Among the characteristic features of digitization are the increasing importance of (a) data as a critical input resource in production and distribution processes and of (b) digital platforms as new players in the markets. The changes in the structure of markets – some of which have become highly concentrated – and in business strategies raise the question whether EU competition law and German competition law are able to deal with the new challenges of the digital economy. Our report for the German Economic Ministry looks at whether a modernization of the (European and German) rules on the abuse of market power is needed. For this purpose, we look at Article 102 TFEU and their (rough) equivalents in German competition law, namely in §§ 18, 19 GWB. In addition, we pay particular attention to the question of whether § 20 GWB – a specificity of German competition law which prohibits exclusionary abuses of relative market power (§ 20 para. 1 – “economic dependence”) and superior market power vis-a-vis small and medium sized competitors (§ 20 para. 3) – can become an effective instrument for closing persisting gaps in controlling abusive behaviour in view of the special challenges facing the digital economy.

La privacy nel diritto canonico e i rapporti con le legislazioni nazionali della Comunità Europea

Con il progressivo utilizzo dei sistemi informatici e con l’espansione dell’utilizzo dei media, in modo particolare negli ultimi anni con il crescente diffondersi di internet e dei social media, la questione della tutela dei dati personali ha fatto sorgere nuove esigenze che richiedono un adeguamento della normativa canonica.Le nuove problematiche di tutela, spesso rese molto complesse dalla difficoltà di arginare un fenomeno di “trasmissione di informazioni e quindi anche di dati” in continua espansione tecnologica, hanno reso necessario adeguare la normativa di tutela della privacy sia a livello di norme della Comunità Europea, che dei singoli paesi tenuti a recepirle, di cui ci occuperemo nel nostro studio.La Chiesa, che da sempre è depositaria della memoria e della storia dei popoli, attraverso gli archivi ecclesiastici, delle diocesi, dei monasteri e anche delle singole parrocchie, è dunque tenuta a garantire la tutela dei dati in suo possesso, che rappresentano la vita dei suoi fedeli.Inoltre il diritto della Chiesa da sempre riconosce tra i suoi diritti fondamentali il rispetto della persona, tra cui rientra anche quello del “diritto al rispetto della buona fama e della riservatezza di ogni persona”, che viene sancito nel Codice di diritto canonico del 1983 al canone 220.La tutela dei dati personali coinvolge inoltre il rapporto tra l’ordinamento della Chiesa e le norme giuridiche degli Stati: nella legislazione di molte nazioni sono state promulgate leggi che tutelano il trattamento dei dati personali, norme che vanno tenute presenti dalle Conferenze Episcopali Nazionali per disciplinare e adeguare ad esse la normativa canonica sul trattamento dei dati cosiddetti “sensibili”.

The Modernization of European Consumer Law: A Pig in a Poke?

This article discusses the European Commission’s proposal for a directive regarding the modernization and better enforcement of European consumer protection rules, and the relation between this proposal and the Commission’s recent Communication ‘A New Deal for Consumers’. In the second part of this article I will discuss to what extent the proposal does justice to the outcomes of the fitness check carried out in 2017, which was intended to examine the extent to which the consumer acquis is still sufficiently equipped for the protection of consumers and allows traders to take advantage of the internal market.

Human rights approaches to suicide in prison: implications for policy, practice and research

BackgroundInternational human right standards place obligations on prison authorities to take reasonable steps to prevent suicides in prison and to investigate those which occur. Those human rights instruments contain minimum standards which states must abide by. Human rights principles can also be used in analysis of why suicides occur in prison.MethodsThis paper examines human rights standards on suicide and its prevention provided by the United Nations Standard Minimum Rules for the Treatment of Prisoners, the European Prison Rules, the work of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, and judgments of the European Court of Human Rights. Particular consideration is given to European human rights standards in light of the literature suggesting that European approaches tend to favour the promotion of human rights. A legal research methodology is employed.ResultsThe paper examines key elements of human rights obligations in this field: the duty to pay particular attention to prisoners with particular mental health needs; duties to provide healthcare of an adequate standard; a duty on the prison authorities to ensure a proper information flow within prisons to identify risks; and particular duties to avoid using solitary confinement and to deploy safeguards when it is used. The paper also describes the obligations to investigate which arise after a suicide in prison: there must be an investigation instigated by the state which is independent, acts promptly and is open to public scrutiny, which is capable of giving rise to a finding of responsibility and is able to acquire relevant evidence, and which gives the next of kin of the deceased person an opportunity to participate.ConclusionsAll those responsible for preventing and responding to suicides in prison must fulfil these human rights obligations, and doing so would support a culture of protecting human rights in prison. In addition, compliance with the human rights standards described here should become a factor more regularly examined in analyses of why suicides occur in prison.

Pricing joint use of municipal services: Theoretical perspectives and regulatory issues

AbstractThis paper analyses price regulation of inter‐municipal contracts in Finland to demonstrate interpretative problems of regulatory rules specifying full‐cost or market prices and, by so doing, deepen understanding of the theoretical underpinnings for pricing collaborative municipal services. It considers how to price inter‐municipal services taking into account the specific socio‐economic nature of inter‐municipal cooperation, including both financial and non‐financial objectives, through a new joint‐use pricing model of municipal services that challenges the supremacy of full‐cost pricing requirements in cases of inter‐municipal collaborative contracting. Acknowledging limitations and benefits, it concludes European Single Market rules militate against municipal discretion and localism.

Privacy of patient data in quality-of-care registries in cardiology and cardiothoracic surgery: the impact of the new general data protection regulation EU-law.

Quality-of-care registries have been shown to improve quality of healthcare and should be facilitated and encouraged. The data of these registries are also very valuable for medical data research. While fully acknowledging the importance of re-using already available data for research purposes, there are concerns about how the applicable privacy legislation is dealt with. These concerns are also articulated in the new European law on privacy, the 'General Data Protection Regulation' (GDPR) which has come into force on 25 May 2018. The aim of this review is to examine what the implications of the new European data protection rules are for quality-of-care registries in Europe while providing examples of three quality-of-care registries in the field of cardiology and cardiothoracic surgery in Europe. A general overview of the European and national legal framework (relevant data protection and privacy legislation) applying to quality-of-care registries is provided. One of the main rules is that non-anonymous patient data may, in principle, not be used for research without the patient's informed consent. When patient data are solely and strictly used for quality control and improvement, this rule does not apply. None of the described registries (NHR, SWEDEHEART, and NICOR) currently ask specific informed consent of patients before using their data in the registry, but they do carry out medical data research. Application of the GDPR implies that personal data may only be used for medical data research after informing patients and obtaining their explicit consent.

Chapter 6. Legal issues and for the health system of the development of a new class of innovative therapy in oncoimmunology: the “Car-T CellS”

Car-T Cells are autologous or allogeneic lymphocytes cells, genetically engineered to express a transmembrane receptor called ?chimeric? because it consists of the assembly of different parts of molecules. These new techniques using biotechnologies (cellular engineering and genetic modifications) are developing in a complex legal context integrating the rules of the European Union (EU) and national rules, aiming to guarantee a high level of security for products and techniques but also for patients. This framework can be either considered as a guaranty for the use of new molecules in a highly secure environment or as an impediment, on the one hand regarding those who want to develop them because of a great complexity in identifying the adequate procedures and regarding the scientific prerequisites expected by the control agencies, and on the other hand by patients who have to wait many years for these innovations to be made available. The development of these innovative therapies will thus question first, the way care and healthcare system should be organised (including for their accessibility) and second, the legal regime and the bioethical principles to be applied for their implementation in the market.

Now and always, the relevance of the Taylor rule in Europe.

Now and always, the relevance of the Taylor rule in Europe.

Fire design methodologies for cold-formed steel beams made with open and closed cross-sections

This paper focuses on developing a simplified fire design methodology for single and built-up cold-formed steel beams based on the European guidelines. Open and closed cross-sections made with (lipped and unlipped) channel sections were selected for this research work. Existing experimental tests and shell finite element analysis using an advanced commercial program were used as the basis for the novel study conducted herein. Numerical results were then compared with predictions from available European fire design rules and appropriate recommendations are made. Such design rules were found to be unsafe or over-conservative depending on the relative slenderness and serviceability load of the beams. Comparisons with numerical moment capacities also demonstrated good precision of the new fire design methodology. The results obtained by this methodology may have an average error of half of those obtained by using the available European design curves.

The Commission’s Power to Withdraw Legislative Proposals and its ‘Parliamentarisation’, Between Technical and Political Grounds

European Commission – Monopoly on legislative initiative – Power to withdraw legislative proposals, as recognised and limited by the Court of Justice – Interinstitutional Agreement on Better Law-Making – European Parliament Rules of Procedure – Interinstitutional programming procedures – Technical and political usages of the withdrawal – Question of confidence in national parliamentary systems – National Parliaments and Early Warning System – Parliamentarisation of the decision to withdraw – Principle of institutional balance

International Prospectus Liability in the European Union

The need for maximization of liquidity for companies acting in the EU markets through the establishment of an internal market for financial services, has since 1998 led to the harmonization of the European disclosure rules to a large extent. However, this does not apply to the corresponding civil liability standards. The Framework Acts, with few exceptions, do not make any provision on the civil law instruments of standard enforcement. The regulation of civil liability for misinformation in the IPO-prospectus is, therefore, still left to the Member States. For this reason, PIL is invoked to determine, which prospectus liability law applies to intra-European cases, when investors or issuers leave national borders to benefit from other European capital markets.

A narrative review of the technical standards for extracorporeal life support devices (pumps and oxygenators) in Europe.

This review summarizes the European rules to control the market when introducing new products. In particular, it shows all the steps to achieve the European Conformity (CE Mark), a certification that all new medical products must achieve before being used in Europe. Extracorporeal membrane oxygenation (ECMO) devices are exposed to the same procedures. Hereby, we present some regulatory issues regarding pumps and oxygenators, providing technical details as released by the manufacturers on their websites and information charts.

Wirksame Nahrungsergänzungsmittel oder Arzneimittel

Health awareness is increasing in the population, which means that more and more dietary supplements are being bought. These are very similar to well known medicines and sometimes indistinguishable both for healthcare professionals as well as for the consumer. Unclear legal terms and missing maximum quantities and substance lists contribute to this. Both product groups are subject to completely different legal norms and have different market access procedures and risk assessment systems. They also differ in purpose. Thus, medicines are used to cure, alleviate and prevent disease. In contrast dietary supplements should complement the normal diet. Whether this is always necessary and useful is contentiously discussed. Last but not least, there is also a great deal of controversy over the amounts of nutrients added in food supplements. European rules on the use of nutritional supplements for nutrition and health claims in foodstuffs are intended to protect consumers from misleading and false promises; however, numerous competition procedures show that further action is needed in this respect.

Cross-Border Crowdfunding: Towards a Single Crowdlending and Crowdinvesting Market for Europe

Crowdlending and crowdinvesting have experienced rapid growth in some EU Member States. However, these types of crowdfunding have, for the most part, remained a phenomenon of those larger Member States that ‘draw a crowd’, with populations that are large enough to make crowdfunding systems economically feasible. In turn, crowdfunding has remained a mainly national issue, prompting the European Commission to conclude that there is no need for harmonization of crowdfunding rules in Europe. In contrast to the European Commission’s Capital Market Action Plan, this paper takes the view that national limitations on crowdinvesting and crowdlending de facto are the result of limits de iure. Given that no European passport is tailor made or fits crowdfunding, this source of financing is doomed to remain national. Moreover, with different legal requirements in Member States, European law hinders the development of cross-border crowdfunding within the region. This is particularly true for smaller Member States whose populations are too small to constitute ‘a crowd’. This paper details how European regulators could facilitate a Single European Crowdfunding Market. Regulation of the crowdfunding platform based on the ‘MiFID light’ framework could function as the basis for a cross-border crowdfunding manager passport, given the minimum protection it affords both investors and the financial system, and the low costs it imposes on the platform. Following the (1) too-small-to-care, (2) too-large-to-ignore, and (3) too-big-to-fail development path of FinTech business models, we suggest adding a relevance threshold of EUR250,000 in transaction volume to the MiFID light framework and imposing regulation to address systemic risk stemming from very large crowdfunding platforms.

Bayer clears path for Monsanto purchase

Bayer has agreed to sell a second tranche of agrochemical and seed businesses to BASF for $2 billion. The move should enable Bayer to satisfy European Union competition rules and complete its $63.5 billion deal to acquire Monsanto—first announced in September 2016—by July. Bayer already agreed in October 2017 to sell significant parts of its seed and pesticide business to BASF for $7 billion in a bid to satisfy EU regulations. In the new divestment round, Bayer will sell to BASF assets including its global vegetable seed activities, certain seed treatment products, its research platform for wheat hybrids, three herbicide research projects, and its digital farming business. Together, they generated 2017 sales of $900 million. Bayer Chairman Werner Baumann is confident his firm has now done enough to satisfy regulators and enable it to complete the Monsanto deal. The latest sell-off to BASF will involve the transfer of 2,500 employees.

Límites del principio de estabilidad presupuestaria respecto de la autonomía financiera de las Comunidades Autónomas españolas

España, en el año 2011, modificó el artículo 135 de su Constitución para introducir el principio de Estabilidad Presupuestaria y un intenso control sobre los presupuestos de todas las Administraciones Públicas nacionales, incluidas, en particular, las Comunidades Autónomas, para garantizar las finanzas nacionales y, también, para limitar el gasto público y el déficit estructural. La reforma constitucional ha producido una fuerte centralización del marco normativo en tema de gasto y presupuesto, un renovado papel desempeñado por parte del Estado en función de «control» sobre la autonomía financiera autonómica y la compresión de dicha autonomía financiera, cerrada entre las estrictas normas constitucionales (y su desarrollo posterior mediante una Ley Orgánica) y el control ejercitado por parte del Estado central.

Curbing negative integration: German supervisory board codetermination does not restrict the common market

TUI v Erzberger is a landmark decision on the normative meaning and scope of the fundamental freedoms. Mr Erzberger complained that the territoriality principle as the linking factor of German supervisory board codetermination violates European law. He argued that lack of voting rights among the employees of foreign subsidiaries was in violation of the ban on discrimination in Article 18 TFEU. He further argued that the possible loss of voting rights when domestic employees move across borders within the same company group makes the move less attractive and therefore violates the free movement of workers in Article 45 TFEU. The Appeals Court Berlin referred the case to the Court of Justice of the European Union, which ruled that the German regulation does not violate European law. The ruling went further than should have been necessary in order to reject the plaintiff’s legal view. It stated, first, the legality of the territoriality principle as the linking factor of national labour law as long as no European secondary law rules otherwise. Second, the Court raised fundamental insights about the telos of Article 45 TFEU and stated that its purpose is not to neutralise the heterogeneity of the social regulations of the Member States.