European Rules Research Articles

Unresolved Questions Regarding Lawyers’ Fees and the Restriction of Competition

This paper explores the most salient aspects of the case-law of the Court of Justice of the European Union on legal services in order to highlight a lack of clarity in defining the terms of compatibility between European Union law and national rules on lawyers’ fees. This is a complex issue and one that has not yet been finally resolved, especially in a difficult context such as that of the Italian market, which is characterised by an extremely large number of lawyers, which in itself entails the risk of deterioration in the quality of services provided, with services being offered at a discount. In Italy, following the Cipolla judgment of the ECJ and the resulting abolition of the system of fixed remuneration (minimum and maximum fees), new measures were introduced by the State and professional organisations to protect members of the legal profession (particularly to safeguard lawyers in a weaker position in dealings with powerful clients such as banks and insurance companies) and to ensure fair remuneration. In accordance with the Wouters exemption and the increasing role of economic analysis in competition rules, these measures require a reflective analytical approach in order to evaluate their compatibility with European Union law.

Effects of structural openings on the buckling strength of cylindrical shells

Computational models, which follow numerical assessment strategies codified by current European rules for shell buckling, were developed so as to study the buckling and post-buckling response of a large set of cylindrical steel thin-shell prototypes with structural openings. Behavioural changes as a consequence of variations in the cutout configuration, that is, shape, size, location and number, were predicted and the obtained numerical estimates were related to the test data of previous experiments in order to explore critical design aspects. Damage modes and axial force–axial displacement response curves were presented and discussed, decoupling the roles played by material nonlinearity and geometrical nonlinearity, as well as the contribution of initial geometrical imperfections to the buckling mechanism of axially compressed cylindrical thin shells.

Asset Segregation Rules for Central Securities Depositories: Maximizing Investor Protection While Ensuring a Level Playing Field

This article provides an analysis of the various assets segregation requirements that central securities depositories (CSDs) need to adhere to. Omnibus segregation is likely to be preferred over individual client segregation in those jurisdictions where the legal rights of investors are equivalent regardless of the level of segregation. Individual client segregation could be chosen more often in jurisdictions where ultimate investor accounts are needed to determine the legal owner of the securities. Taking into account that individual client segregation is expected to be costlier and that CSDs are likely to reflect these costs in the settlement fees charged to their customers in order to stay profitable, CSDs located in member states with a higher likelihood that individual client segregation is chosen, are likely to face a competitive disadvantage vis-a-vis CSDs domiciled in a jurisdiction where omnibus segregation is deemed protective. The CSD-Regulation and Target2-securities have the harmonization of European settlement rules and practices as a goal, but a true level playing field between CSDs may only arrive when national securities (property) laws would be further harmonized or conflict-of-law rules would be made more effective. This article further explains the competitive challenges regarding asset segregation between CSDs and global custodians. Also, this paper describes the wish of CSDs to be exempted from certain asset segregation rules while global custodians require CSDs to be submitted to the same asset segregation rules to which they need to adhere to. A level playing field between these two different actors, which are currently offering similar services, may be obtained when they would be subject to the same legal requirements.

Linde-Praxair deal gets deep European review

The European Commission is warning Linde and Praxair that getting their planned $80 billion industrial gas tie-up past European competition rules may mean selling off major parts of the combined business. The EC says it is concerned that the merger may reduce competition in the supply of crucial industrial gases, including oxygen, carbon dioxide, and helium. The merger would reduce the number of major European suppliers of these and many other gases to just three. And the high level of investment needed to establish a meaningful market position means that new entrants to the sector are unlikely, according to the EC. It has begun an in-depth investigation that may run until July 4. The EC approves the vast majority of mergers following a routine review. Five other in-depth investigations are currently underway, of which three feature chemical companies: the proposed acquisition of Monsanto by Bayer, the formation of an acetate

The Cadbury Schweppes Judgment and Its Implications on Profit Shifting Activities within Europe

In 2006, the European Court of Justice (ECJ) decided with the Cadbury Schweppes judgment that European Controlled-Foreign-Company (CFC) rules infringe the principle of freedom of establishment and restricted the applicability thereof. This paper analyzes the impact of mandatory amendments to European CFC rules on tax planning activities within Europe. Using a difference-in-differences approach, my results provide robust evidence that pre-tax earnings of subsidiaries located in European low-tax jurisdictions have increased by around 10 % after the Cadbury Schweppes judgment. My analysis shows further that the increase of pre-tax earnings is related to facilitated profit shifting activities. Multinational corporations with high incentives or enhanced profit shifting opportunities react more pronounced to the Cadbury Schweppes judgment. The findings point out that CFC rules became less effective and thus, profit shifting activities within Europe are less restricted after the ECJ judgment. Additional tests suggest further that on average 90 % of the increase in pre-tax earnings is attributable to strategic transfer pricing determination, while less than 10 % is attributable to debt shifting activities.

European court rules off-label drugs compete with licensed drugs

European court rules off-label drugs compete with licensed drugs

Seismic Fragility Analysis of MRFs with PR Bolted Connections Using IDA Approach

Partially restrained (PR) bolted beam-to-column connections are a promising typology of connection in modern steel moment resisting frames (MRFs). Both high-fidelity three-dimensional solid models and mechanics-based idealisations have been extensively explored in order to investigate the behaviour of this attractive solution, applicable both to new construction and to retrofitting of existing structures. Despite this, structural safety has been probabilistically assessed and controlled in a relatively few cases, thus neglecting characterisation, modelling and propagation of uncertainties. As such, this paper moves from a deterministic to a probabilistic framework, proposing fragility models at multiple damage states for low-and medium-rise MRF structures with T-stub and top-and-seat angle connections which may be applied for seismic risk assessment and management. After validation against past experimental data, use was made of component-based modelling to reproduce the seismic response of these PR bolted connection systems within planar MRFs designed for earthquake resistance in accordance with current European rules. A set of 44 records scaled at increasing seismic intensity was considered to perform a series of incremental dynamic analyses (IDAs). Fragility functions for each damage state of interest were then derived and compared. The analysis results show the influence of connection typology and structure height.

The Passing-On of Price Overcharges in European Competition Damages Actions: A Matter of Causation and an Issue of Policy

This paper analyses the functioning of the passing-on of price overcharges in damages actions for breaches of EU competition law and aims to give a critical appraisal of the present regulatory framework in Europe. In particular, this paper maintains that the European Directive 2014/104, in order to facilitate the claims of damages caused by the infringement of European competition rules and to provide full compensation for those damages, has adopted a complex set of rules placing the burden of proof on the party that has, assumedly, the best access to evidence on the relevant issue. Moreover, it is noted that these rules give a strict definition of the overcharge harm and of its diffusion through the market chain. In this connection, it is argued that the objectives of the Directive are partly compromised by the fact that this restrictive approach fails to take into consideration a number of other subjects who may potentially be damaged by the passing-on of the overcharge harm.Secondly, this paper maintains that the set of rules laid down by the Directive 2014/104 creates a system of presumptions, which, contrary to its intended purpose, is likely to discourage damages actions. Finally, this paper argues that actions by indirect purchasers based on the passing-on of the overcharge will still need to heavily rely on domestic civil law rules in particular on local principles of causation and evidence.

INFLUENCE OF INTERNATIONALIZATION OF TAX LAW ON RUSSIAN TAX LAW ENFORCEMENT IN THE AREA OF CORPORATE TAXATION

Subject. The influence of internationalization of tax law on Russian tax law enforcement in the area of corporate taxation is considered in the article.The purpose of the paper is to analyze influence of internationalization of tax law on Russian tax law enforcement in the area of corporate taxation.Methodology. The author uses methods of theoretical analysis, particularly the theory of integrative legal consciousness, as well as legal methods, including formal legal method and methods of comparative law.Results, scope of application. The development of Russian tax legislation is influenced by acts of international organizations, primarily the Action Plan aimed at combating base erosion and profit shifting (BEPS).Trends of regulation of corporate taxation in relationships with participation of a foreign element are considered in the article. The main issues of realization of norms in the area of corporate direct taxation are brought into light, and namely, taxation of royalties, intra-group expenses, thin capitalization rules and transfer pricing. Tax agreements concluded by the Russian Federation do not contain special rules aimed at combating abuses (in contrast, for example, from European anti-avoidance rules).In recent years Russian tax law introduced institutions that had been established and applied in the tax law of foreign countries. These processes are moving forward and are characterized by frequent changes of legislation, which indicates that the concept of deoffshorization and implementation of the BEPS plan is not always elaborated at the stage of adoption of bills.Conclusions. The author comes to the conclusion that the most relevant and most controversial issues are taxation of payment of royalties, debt financing and intra-group expenses. The practice of applying the CFC rules is just starts forming. In addition, there is a tendency to increase the quality and quantity of information sources used by tax authorities to collect evidence, including the expansion of the practice of information exchange.

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

AbstractWe find that, after the adoption of the euro, the European Central Bank has followed a forward‐looking Taylor rule. This rule is such that nominal as well as real short‐term interest rates increase in response to higher expected inflation or decline in output. Our findings show that the European Central Bank policy responses are of the same magnitude and sign as the ones prevailing in the pre‐euro era for Germany, France, and Italy. We conclude that, before and after the euro, central banks in Europe have adopted a proactive stance towards controlling inflation.

Pros and Cons of European Civil Procedure

European civil procedure is a conditional term that represents a supranational sphere of cooperation and harmonization of civil procedural law rules of the European Union Member States. Harmonization of civil procedural rules has not only positive, but also a number of negative aspects. Thus, European civil procedure is deprived of any internal structure and cannot be called a complex institution. European Union law rules mainly concern cooperation between States, they are deprived of such basic concepts as purposes, goals and principles of a branch of law, and do not regulate the procedure of proving and litigation. European civil procedure has developed through adoption of independent acts concerning relevant issues, which made it possible to resolve immediate problems, but when such acts become numerous, lack of systematization inhibits further development. Both the adoption of the Code and the adoption of more specific acts could help solve the problem. The scope of application of European civil procedure rules is limited to transboundary cases. A situation may arise when there is no any analogue of the relevant "unified" procedure at the national level. Thus, the advantages of the European civil procedure cannot be used to resolve a domestic case. It is impossible to use them with regard to third countries, moreover, the European project of procedural unification is opposed to the worldwide efforts on unification and harmonization of procedural law. Parties to the cooperation differ depending upon the sphere of cooperation, but the list of these States is exhaustive, none of the Sates intending to join the European Union can obtain such a status. However, given that the European civil procedure is not codified, this situation still undermines the unity of "a genuine European space of justice." There is no unified legal basis for the adoption of procedural rules: The competence of the European Union is limited by the principles of subsidiarity and proportionality, which makes it possible to adopt only such legal acts that have a clearly established legal "basis" in constituent agreements. Another notable problem is optionality of some requirements of European civil procedure. The current European procedural regulations are not only autonomous, but also optional, which means that the applicant is granted the right to choose whether European or national procedures will be applied to deal with the case.

Europeanization through Standardization: ICT and Telecommunications

This paper analyses the global reach of European Union (EU) policies and rules using international standardization for telecommunications and information and Communications Technologies (ICT) as a case study. The nature of the telecoms and ICT sectors require interconnection and interoperability between netwotks, systems, and services. At the same time, interoperability and quality standards are conducive to market competition by enabling freedom of choice for users. On the other hand, telecoms and ICT technologies cannot be understood without the occurrence of network effects. In this light, the paper posits that regulatory and policy diffusion actually represent an externality of the EU Internal Market building process, complemented by a meaningful involvement of the EU in global standard-setting activities. While international standard-setting activities are largely dominated by non-state and private actors, the paper assesses how the EU manages regulatory and policy export through standardization.

Options for Traffic Growth at Smaller European Airports Under the European Commission’s Guidelines on State Aid

Abstract The European Commission will strongly cap state aid to airports from 2024, putting at risk many smaller airports failing to break even. Based on literature research and empirical cases, we assess public funding options to increase traffic and revenues of airports which are unlikely to infringe state aid rules. There is some scope to declare several airport functions as areas of non-economic nature, which would allow public bodies to take over costs without violating European state aid rules. In addition, boosting the number of air services operated as public service obligations and providing incentives may constitute legitimate options to improve airport financials. However, all forms of support described herein come at the taxpayers’ expense, though.

The EU Directive on Representative Actions for Consumers: A Milestone or Another Missed Opportunity?

Collective redress has been on the EU civil justice agenda for a long time, and has triggered considerable debate as a result of the complexity of the matter and the hugely diverging approaches in the Member States. The 2013 Recommendation on collective redress was the result of compromises, and up until now it has had little practical impact. On 11 April 2018, the Commission published its proposal for a directive on representative actions for the protection of the collective interests of consumers, replacing Directive 2009/22/EC (the ‘Injunctions Directive’). This proposal is a follow-up to the 2016-2017 Fitness Check of EU consumer and marketing law, and to the 2018 evaluation report of the Commission on the implementation of the 2013 Recommendation on collective redress. While this is a big step in the right direction, the proposal has a number of shortcomings. It is submitted that, first, in view of the ever-increasing globalization of goods and services, a revision of European private international law rules is urgently needed for resolving cross-border mass claims. Second, the proposal fails to fully consider new actors and new forms of mass litigation that are now emerging, in particular the rise of mass dispute entrepreneurs who are using online platforms and digital tools to structure and to create mass claims. Third, it leaves several questions relating to the financing of mass litigation still unanswered.

SIMPLE FIRE DESIGN OF COLD‐FORMED STEEL C‐SECTION BEAMS WITH LATERAL–TORSIONAL BUCKLING

AbstractFire design rules for cold‐formed steel beams are commonly based on past research on hot‐rolled steel beams. Hence this paper present a methodology for calculating the fire response of unrestrained cold‐formed steel C‐section flexural members, based on guidelines of EN1993‐1.2 for fire design of steel beams and on results of experimental and numerical studies. European fire design rules were found to be unsafe or over‐conservative, depending on their relative slenderness and serviceability load applied on the beams. Therefore, new formulae for lateral–torsional buckling of unrestrained cold‐formed steel C‐section flexural members, which approximate better their real behaviour in case of fire, are proposed. Comparison with numerical moment capacities demonstrates the accuracy of the new design methodology.

Los convenios interadministrativos y la legislación de contratos públicos

El trabajo examina el encaje de los convenios interadministrativos en la legislación europea y española de contratos públicos. Se ha pasado de declararlos exentos de los trámites de licitación a considerar que no pueden celebrarse sobre prestaciones propias de un contrato. En realidad, el Derecho comunitario admite estos convenios siempre que cumplan determinados requisitos, incluso si su objeto es una prestación propia de un contrato. El Derecho español les impone, por tanto, exigencias excesivas. Por otro lado, se estudian en el trabajo los requisitos exigidos por el Derecho comunitario, para ver si los convenios están sometidos a exigencias más duras que los encargos a medios propios, y si ello está justificado. Los entes públicos pueden utilizar sus propios recursos propios para atender sus necesidades, sin estar obligados a adjudicar un contrato. Y por “recursos propios” deben entenderse también los de sus entes instrumentales o los de otros entes públicos, para evitar que salgan perjudicados los países más descentralizados frente a aquellos en los que toda colaboración en el seno del sector público es un fenómeno interno, equiparable a los encargos a medios propios.

Pulmonary embolism rule-out criteria (PERC) rule in European patients with low implicit clinical probability (PERCEPIC): a multicentre, prospective, observational study

The ability of the pulmonary embolism rule-out criteria (PERC) to exclude pulmonary embolism without further testing remains debated outside the USA, especially in the population with suspected pulmonary embolism who have a high prevalence of the condition. Our main objective was to prospectively assess the predictive value of negative PERC to rule out pulmonary embolism among European patients with low implicit clinical probability. We did a multicentre, prospective, observational study in 12 emergency departments in France and Belgium. We included consecutive patients aged 18 years or older with suspected pulmonary embolism. Patients were excluded if they had already been hospitalised for more than 2 days, had curative anticoagulant therapy in progress for more than 48 h, or had a diagnosis of thromboembolic disease documented before admission to emergency department. Physicians completed a standardised case report form comprising implicit clinical probability assessment (low, moderate, or high) and a list of risk factors including criteria of the PERC rule. They were asked to follow international recommendations for diagnostic strategy, masked to PERC assessment. The primary endpoint was the proportion of patients with low implicit clinical probability and negative PERC who had venous thromboembolic events, diagnosed during initial diagnostic work-up or during 3-month follow-up, as externally adjudicated by an independent committee masked to the PERC and clinical probability assessment. The upper limit of the 95% CI around the 3-month thromboembolic risk was set at 3%. We did all analyses by intention to treat, including all patients with complete follow-up. This trial is registered with ClinicalTrials.gov, number NCT02360540. Between May 1, 2015, and April 30, 2016, 1773 consecutive patients with suspected pulmonary embolism were prospectively assessed for inclusion, of whom 1757 were included. 1052 (60%) patients were classed as having low clinical probability, 49 (4·7%, 95% CI 3·5-6·1) of whom had a venous thromboembolic event. In patients with a low implicit clinical probability, 337 (32%) patients had negative PERC, of whom four (1·2%; 95% CI 0·4-2·9) went on to have a pulmonary embolism. In European patients with low implicit clinical probability, PERC can exclude pulmonary embolism with a low percentage of false-negative results. The results of our prospective, observational study allow and justify an implementation study of the PERC rule in Europe. French Ministry of Health.

Revisiting minimum profit conditions in uniform price day-ahead electricity auctions

We examine the problem of clearing day-ahead electricity market auctions where each bidder, whether a producer or consumer, can specify a minimum profit or maximum payment condition constraining the acceptance of a set of bid curves spanning multiple time periods in locations connected through a transmission network with linear constraints. Such types of conditions are for example considered in the Spanish and Portuguese day-ahead markets. This helps describing the recovery of start-up costs of a power plant, or analogously for a large consumer, utility reduced by a constant term. A new market model is proposed with a corresponding MILP formulation for uniform locational price day-ahead auctions, handling bids with a minimum profit or maximum payment condition in a uniform and computationally-efficient way. An exact decomposition procedure with sparse strengthened Benders cuts derived from the MILP formulation is also proposed. The MILP formulation and the decomposition procedure are similar to computationally-efficient approaches previously proposed to handle so-called block bids according to European market rules, though the clearing conditions could appear different at first sight. Both solving approaches are also valid to deal with both kinds of bids simultaneously, as block bids with a minimum acceptance ratio, generalizing fully indivisible block bids, are but a special case of the MP bids introduced here. We argue in favour of the MP bids by comparing them to previous models for minimum profit conditions proposed in the academic literature, and to the model for minimum income conditions used by the Spanish power exchange OMIE.

The Differentiated Implementation of European Participation Rules in Energy Infrastructure Planning. Why Does the German Participation Regime Exceed European Requirements?

The building of electricity grids is a major challenge of infrastructure planning. According to Directive 2009/72/EU, “ten‐year network development plans” outline which grids are to be built. Regulatory agencies have to consult “actual or potential system users” on these plans. However, Germany exceeds these requirements and conducts three rounds of full‐fledged public participation. Using rational choice and sociological institutionalism, this article argues that the over‐implementation of Directive 2009/72/EU is due to two causes: First, the old German corporatist system of grid planning was dysfunctional. Second, there was a major discourse on public participation following the contentious railway project “Stuttgart 21.” The domestic implementation of Directive 2009/72/EU then opened a window of opportunity for advocates of public participation to implement their preferences. A comparison with France corroborates the argument that both conditions must be fulfilled to cause a major reform.

Calls of Duty: Romanian Politicians’ Deontological Discursive Strategies for Securing Free Movement in the European Union

This article discusses how the right to free movement within the European Union is presented as a matter of obligation, a duty of the other EU member states, in the discourse of Romanian Presidents and Prime Ministers (2005–2015). An examination of speeches and other statements from these politicians illuminates Romanian political reactions during the period when Romania became an EU member state, and reflects perceptions of Europeanness and European agreements. These issues take on an additional contemporary significance in the context of the Brexit negotiations, and they also add to the broader debate on whether EU norms and obligations are seen as being both just and equally applied. By analysing different types of argumentative topoi, I examine the deontological (obligation-based) argumentation employed in the free movement context. Furthermore, I examine to what extent these arguments are invoked in support of the right to free movement and who this right applies to. I argue that for Romanian politicians, deontological free movement arguments are connected to other states’ compliance with European treaties and to demands for equal application of European rules without discrimination, or the delegation of responsibility to others. This manifested itself most frequently in the calls for the EU and its member states to do their duty by treating Romanians equally to other EU citizens.