Pub Date : 2019-09-09DOI: 10.7559/MCLAWREVIEW.2018.326
Marco Gambaro
Big data are considered at the same time a promising driver of economic development and a concern for possible manipulation and privacy intrusion. Data diffusion and their uncertain appropriability can make property rights regarding data less precise than those regarding traditional goods. The article reviews some economic features of data. In many digital markets data can be considered a relevant input for production but hardly an essential facility. Many data are collected in two-sided market platforms and on the one side, they are used to personalise services and to add quality, while on the other side of the platform they contribute to make advertising collection more efficient. So, the transfer of personal data can be considered an implicit price for many free information services. Consumers are usually unaware of subsequent pervasive use of their personal data, and therefore give them away easily. Big data can amplify competitive advantages and related dominant positions, leveraging on information asymmetries. A dominant position obtained through collection and processing of big amounts of personal data allow practices such as first-degree price discrimination, personalised advertising, and artificial degradation of services that can sometimes be considered competitive abuse, but it is difficult that data alone allow to maintain a true dominant position.
{"title":"Big Data Competition and Market Power","authors":"Marco Gambaro","doi":"10.7559/MCLAWREVIEW.2018.326","DOIUrl":"https://doi.org/10.7559/MCLAWREVIEW.2018.326","url":null,"abstract":"Big data are considered at the same time a promising driver of economic development and a concern for possible manipulation and privacy intrusion. Data diffusion and their uncertain appropriability can make property rights regarding data less precise than those regarding traditional goods. The article reviews some economic features of data. In many digital markets data can be considered a relevant input for production but hardly an essential facility. Many data are collected in two-sided market platforms and on the one side, they are used to personalise services and to add quality, while on the other side of the platform they contribute to make advertising collection more efficient. So, the transfer of personal data can be considered an implicit price for many free information services. Consumers are usually unaware of subsequent pervasive use of their personal data, and therefore give them away easily. Big data can amplify competitive advantages and related dominant positions, leveraging on information asymmetries. A dominant position obtained through collection and processing of big amounts of personal data allow practices such as first-degree price discrimination, personalised advertising, and artificial degradation of services that can sometimes be considered competitive abuse, but it is difficult that data alone allow to maintain a true dominant position.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116866705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-05DOI: 10.7559/mclawreview.2017.312
Inês Quadros
The guarantee of the very essence of rights is a well-known concept in the German tradition of rights' adjudication. The Court of Justice of the European Union has been influenced by the methods of control used by the German Constitutional Law in relation to restrictions to fundamental rights, and the Charter of Fundamental Rights has adopted some of the limits used therein. The article discusses whether the language of rights developed by the Court of Justice in relation to the internal market freedoms allows for the use of the guarantee of their essential core as a limit to State restrictions. Furthermore, it tries to define what should be taken as the inner core of fundamental freedoms. Attention is drawn to the relationship between the very essence of rights and the proportionality principle. The emphasis put by the Court on this principle shows that the inner core of the freedoms should come as a result of a balancing exercise between these and other compelling interests.
{"title":"The Very Essence of the Internal Market Freedoms","authors":"Inês Quadros","doi":"10.7559/mclawreview.2017.312","DOIUrl":"https://doi.org/10.7559/mclawreview.2017.312","url":null,"abstract":"The guarantee of the very essence of rights is a well-known concept in the German tradition of rights' adjudication. The Court of Justice of the European Union has been influenced by the methods of control used by the German Constitutional Law in relation to restrictions to fundamental rights, and the Charter of Fundamental Rights has adopted some of the limits used therein. The article discusses whether the language of rights developed by the Court of Justice in relation to the internal market freedoms allows for the use of the guarantee of their essential core as a limit to State restrictions. Furthermore, it tries to define what should be taken as the inner core of fundamental freedoms. Attention is drawn to the relationship between the very essence of rights and the proportionality principle. The emphasis put by the Court on this principle shows that the inner core of the freedoms should come as a result of a balancing exercise between these and other compelling interests.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117272129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-05DOI: 10.7559/mclawreview.2017.308
Amedeo Arena
Tax rulings are binging decisions that taxpayers may seek from tax authorities to determine in advance how certain transactions will be treated fiscally. However, tax rulings can have an “alternative use”: that of granting a particularly advantageous fiscal treatment to specific taxpayers, typically large multinational groups willing to invest and create jobs in the tax jurisdiction concerned, without extending it to other taxpayers and without triggering a tax war with other jurisdictions. This article focuses on the European Commission’s enforcement of State aids rules against certain EU Member States in respect of tax rulings issue to a number of multinational companies. After a brief account of the economic rationale for tax rulings and their potential relevance in the context of EU tax competition, the article provides an overview of the Commission’s individual and general measures designed to attract multinational investors in return for significant fiscal advantages. The central part of the article provides an analytical assessment of the Commission’s on-going and closed proceedings on tax ruling practices, having regard to the four constituent elements of the notion of State aid. Regard is then had to the peculiar challenges involved with recovery of State aids granted in the form of tax rulings and, finally, to the systemic implications of the Commission’s initiatives for the division of competences between the EU and its Member States and for the establishment of a fiscal union.
{"title":"State Aids and Tax rulings: an assessment of the Commission’s recent decisional practice","authors":"Amedeo Arena","doi":"10.7559/mclawreview.2017.308","DOIUrl":"https://doi.org/10.7559/mclawreview.2017.308","url":null,"abstract":"Tax rulings are binging decisions that taxpayers may seek from tax authorities to determine in advance how certain transactions will be treated fiscally. However, tax rulings can have an “alternative use”: that of granting a particularly advantageous fiscal treatment to specific taxpayers, typically large multinational groups willing to invest and create jobs in the tax jurisdiction concerned, without extending it to other taxpayers and without triggering a tax war with other jurisdictions. This article focuses on the European Commission’s enforcement of State aids rules against certain EU Member States in respect of tax rulings issue to a number of multinational companies. After a brief account of the economic rationale for tax rulings and their potential relevance in the context of EU tax competition, the article provides an overview of the Commission’s individual and general measures designed to attract multinational investors in return for significant fiscal advantages. The central part of the article provides an analytical assessment of the Commission’s on-going and closed proceedings on tax ruling practices, having regard to the four constituent elements of the notion of State aid. Regard is then had to the peculiar challenges involved with recovery of State aids granted in the form of tax rulings and, finally, to the systemic implications of the Commission’s initiatives for the division of competences between the EU and its Member States and for the establishment of a fiscal union.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124821573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-05DOI: 10.7559/mclawreview.2017.311
Beata Mäihäniemi
Competition investigations in digital markets focus increasingly on future markets, and incentives to invest and innovate play here a larger role than in traditional "brick and mortar" industries. the article analyses the role of innovation in cases of abuse of dominance in digital markets on two levels. The first level involves the strength of incentives to invest and innovate of a digital monopolist - would he have less or more incentives to innovate and prefer to resort to practices that foreclose his competitors or leverage his market power to adjacent markets to keep its dominant position on the market? The second level identifies concrete phases of the competition analysis in which innovation considerations are contemplated in digital markets, such as objective justifications or assessing the effect of the practice on consumer welfare. Toe analysis of the role of innovation in the assessment of alleged anticompetitive abuses is conducted on the example of two concerns expressed by the EC in recent investigations into practices of Google Search, namely (1) search bias and (2) restrictions on portability of advertising data to competing advertising platforms.
{"title":"The Role of Innovation in the Analysis of Abuse of Dominance in Digital Markets: The Analysis of Chosen Practices of Google Search","authors":"Beata Mäihäniemi","doi":"10.7559/mclawreview.2017.311","DOIUrl":"https://doi.org/10.7559/mclawreview.2017.311","url":null,"abstract":"Competition investigations in digital markets focus increasingly on future markets, and incentives to invest and innovate play here a larger role than in traditional \"brick and mortar\" industries. the article analyses the role of innovation in cases of abuse of dominance in digital markets on two levels. The first level involves the strength of incentives to invest and innovate of a digital monopolist - would he have less or more incentives to innovate and prefer to resort to practices that foreclose his competitors or leverage his market power to adjacent markets to keep its dominant position on the market? The second level identifies concrete phases of the competition analysis in which innovation considerations are contemplated in digital markets, such as objective justifications or assessing the effect of the practice on consumer welfare. Toe analysis of the role of innovation in the assessment of alleged anticompetitive abuses is conducted on the example of two concerns expressed by the EC in recent investigations into practices of Google Search, namely (1) search bias and (2) restrictions on portability of advertising data to competing advertising platforms.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128419065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-05DOI: 10.7559/mclawreview.2017.309
Anna Piszcz
Soon Member States will bring into force the laws, regulations and administrative provisions necessary to comply with the Damages Directive (2014/104/EU). Usually Member States do not seem willing to introduce a broader scope of the application of principles embodied in EU directives. For Member States, “copy-pasting” a directive's content into a piece of national legislation is one of the simplest ways to implement a directive (another very simple one is implementation by reference; it is just referring the reader to the directive and should not be applied where the rules in a directive are not sufficiently precise, so it is not applied very often). Member States that work on the implementation of the Damages Directive either do it in a minimalist manner, mainly "copy-pasting" its content, or take the legislative opportunity to do something more and "tidy up" domestic provisions on the occasion of the transposition of the Directive. Some Member States have chosen that last option. The article attempts to highlight some of the considerations that may be of particular relevance in this process, with the aim of formulating some recommendations for national legislatures, even though implementation works are drawing to a dose. First, some “spontaneous harmonisation” of a scope broader than that provided for in the Directive is recommended on the background of the material (substantive) scope of the Directive and its transposition. The other important considerations are addressed to the personal scope of the Directive and its transposition. Finally, the short review of some more detailed issues for decision on the occasion of the transposition of the Directive is offered. Considerations regarding the principle of civil liability, the use of collective redress mechanisms, minimum harmonisation clauses, institutional design of private enforcement of competition law, as well as incentives to voluntarily provide compensation to injured parties can be found therein.
{"title":"Room to Manoeuvre for Member States: Issues for Decision on the Occasion of the Transposition of the Damages Directive","authors":"Anna Piszcz","doi":"10.7559/mclawreview.2017.309","DOIUrl":"https://doi.org/10.7559/mclawreview.2017.309","url":null,"abstract":"Soon Member States will bring into force the laws, regulations and administrative provisions necessary to comply with the Damages Directive (2014/104/EU). Usually Member States do not seem willing to introduce a broader scope of the application of principles embodied in EU directives. For Member States, “copy-pasting” a directive's content into a piece of national legislation is one of the simplest ways to implement a directive (another very simple one is implementation by reference; it is just referring the reader to the directive and should not be applied where the rules in a directive are not sufficiently precise, so it is not applied very often). Member States that work on the implementation of the Damages Directive either do it in a minimalist manner, mainly \"copy-pasting\" its content, or take the legislative opportunity to do something more and \"tidy up\" domestic provisions on the occasion of the transposition of the Directive. Some Member States have chosen that last option. The article attempts to highlight some of the considerations that may be of particular relevance in this process, with the aim of formulating some recommendations for national legislatures, even though implementation works are drawing to a dose. First, some “spontaneous harmonisation” of a scope broader than that provided for in the Directive is recommended on the background of the material (substantive) scope of the Directive and its transposition. The other important considerations are addressed to the personal scope of the Directive and its transposition. Finally, the short review of some more detailed issues for decision on the occasion of the transposition of the Directive is offered. Considerations regarding the principle of civil liability, the use of collective redress mechanisms, minimum harmonisation clauses, institutional design of private enforcement of competition law, as well as incentives to voluntarily provide compensation to injured parties can be found therein.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132728277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-01DOI: 10.7559/mclawreview.2019.316
Afonso Patrão
One of the main obstacles to the internal market is legal diversity: Member States often adopt different legal standards not only within public and economic law but also with regard to private law. The traditional approach of European Institutions (harmonising legislation among Member States) was soon complemented by the principle of mutual recognition; these two methodologies embodied the European strategy for minimising the problem. However, a third European tool is becoming obvious: to give private parties the ability to choose the applicable law. This new approach enhances regulatory competition among Member States and turns unessential the unification of national rules, which suits best the proportionality principle. Party autonomy as a means for overcoming the difficulties of legal diversity is not only a reality in European statutory law – which already brought the ability for choosing the applicable law to contracts, torts, divorce, inheritance, alimony, matrimonial property – but is also highlighted in ECJ’s case-law, which declared legal diversity is not a barrier to the basic freedoms as long as parties may choose the applicable rules. The article will focus on the grounds and advantages of this method to address the issue of legal diversity, advocating its use in areas where the traditional approach is ineffective or impossible (such as some rights in rem, within the scope of the freedom of movement of capital).
{"title":"Party Autonomy: Removing Obstacles to Legal Diversity in the European Market","authors":"Afonso Patrão","doi":"10.7559/mclawreview.2019.316","DOIUrl":"https://doi.org/10.7559/mclawreview.2019.316","url":null,"abstract":"One of the main obstacles to the internal market is legal diversity: Member States often adopt different legal standards not only within public and economic law but also with regard to private law. The traditional approach of European Institutions (harmonising legislation among Member States) was soon complemented by the principle of mutual recognition; these two methodologies embodied the European strategy for minimising the problem. However, a third European tool is becoming obvious: to give private parties the ability to choose the applicable law. This new approach enhances regulatory competition among Member States and turns unessential the unification of national rules, which suits best the proportionality principle. Party autonomy as a means for overcoming the difficulties of legal diversity is not only a reality in European statutory law – which already brought the ability for choosing the applicable law to contracts, torts, divorce, inheritance, alimony, matrimonial property – but is also highlighted in ECJ’s case-law, which declared legal diversity is not a barrier to the basic freedoms as long as parties may choose the applicable rules. The article will focus on the grounds and advantages of this method to address the issue of legal diversity, advocating its use in areas where the traditional approach is ineffective or impossible (such as some rights in rem, within the scope of the freedom of movement of capital).","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122696832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-01DOI: 10.7559/mclawreview.2019.318
Benedita Menezes Queiroz
Counter-terrorism and public security measures have significantly altered EU immigration law. Under the premise that EU instruments which regulate EU immigration databases influence the legal regime of irregularity of migrants’ statuses, the present article argues that the latest developments in the area of data technology contribute to the phenomenon of “crimmigration”. This is so not only because they may generate a sort of “digital illegality” due to their impact on the categorisation of migrants, but also because they enable a conflation of treatment of irregularity, asylum seeking and criminality. This article focuses on the recent amendments and proposals for amendments to the EURODAC Regulation, a database that regulates the asylum fingerprint system in the EU. This is revealing of the ongoing broadening of the purpose of that data and law enforcement access to the collected information. The argument finds its basis in three main trends common to these databases: the erosion of the principle of purpose limitation, the widening of access to data by law enforcement authorities, and the digitalisation of borders through biometrics. Ultimately, this article claims that the level of surveillance of certain categories of migrants that may cross the borders of the EU puts at risk the distinction between illegally staying irregular migrants and criminals, given that the treatment of their personal data is insufficiently clear in practice.
{"title":"The Impact of EURODAC in EU Migration Law: The Era of Crimmigration?","authors":"Benedita Menezes Queiroz","doi":"10.7559/mclawreview.2019.318","DOIUrl":"https://doi.org/10.7559/mclawreview.2019.318","url":null,"abstract":"Counter-terrorism and public security measures have significantly altered EU immigration law. Under the premise that EU instruments which regulate EU immigration databases influence the legal regime of irregularity of migrants’ statuses, the present article argues that the latest developments in the area of data technology contribute to the phenomenon of “crimmigration”. This is so not only because they may generate a sort of “digital illegality” due to their impact on the categorisation of migrants, but also because they enable a conflation of treatment of irregularity, asylum seeking and criminality. This article focuses on the recent amendments and proposals for amendments to the EURODAC Regulation, a database that regulates the asylum fingerprint system in the EU. This is revealing of the ongoing broadening of the purpose of that data and law enforcement access to the collected information. The argument finds its basis in three main trends common to these databases: the erosion of the principle of purpose limitation, the widening of access to data by law enforcement authorities, and the digitalisation of borders through biometrics. Ultimately, this article claims that the level of surveillance of certain categories of migrants that may cross the borders of the EU puts at risk the distinction between illegally staying irregular migrants and criminals, given that the treatment of their personal data is insufficiently clear in practice.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129228371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-01DOI: 10.7559/mclawreview.2019.320
N. Memeti
Monetary fines represent an important instrument to address violations of Competition Law. The European Commission (EC) and the EU Courts have been primarily engaged in imposing fines in cases of breach of the first pillar, and have rarely dealt with cases of abuse based on the fining guidelines issued in accordance with Article 23(2) of Regulation 1/2003. Compared to the first two pillars, mergers have not received similar scholarly attention.1 2 Since 2017, the EC has expressed a growing interest in investigating and imposing significant fines to mergers and acquisitions in breach of procedural matters. Therefore this article addresses the application of Article 14 of the European Union Merger Regulation (EUMR) in imposing fines to mergers with European Union (EU) dimension. The EC decisions and EU Courts’ judgments related to fines on mergers in breach of procedural matters are discussed in four specific sections. The first section analyses article 14(1) of the EUMR, which empowers the EC to impose a fine of up to 1% of the total turnover in the preceding business year on undertakings for breach of procedural matters, including, among others, for providing incorrect or misleading information. This section will address the case of Facebook as the first case in which the EC imposed fines based on the new EUMR. In this case, although the undertakings mislead the EC, based on the offered cooperation, the Authority decided to reduce the fine. In addition, it is also important to address the legal basis applied by the EC in accepting the offered cooperation as a mitigating factor and whether this may develop into a guiding “precedent” in the future. The second section deals with five cases of violations of articles 4(1) and 7(1) EUMR related to fines prescribed in article 14(2) EUMR. With regards to four of them, judgments of EU Courts and decisions of the EC and National Competition Authority (NCA) are analysed. The fifth case, the one on Ernst and Young, provides for the first preliminary ruling on the notion of “gun-jumping”. The third section deals with Article 14(3) and the fining methods on mergers. By reviewing each of these five cases, it is important to address factors taken into consideration when imposing fines. An obvious deficiency is the absence of a legal basis, regardless of whether manifested in hard or soft law. Here it is relevant to inquire in what manner the EC imposes fines and why it occasionally mirrors the fining guidelines applicable to other pillars of EU Competition Law. The last point to be addressed is the one of policy and the need to balance EC discretional powers and relevant legal principles such as legal certainty, equal treatment, transparency, and consistency.3 The fourth section provides for concluding remarks.
罚款是处理违反竞争法行为的重要手段。欧盟委员会(EC)和欧盟法院主要对违反第一个支柱的案件进行罚款，很少根据第1/2003号法规第23(2)条发布的罚款指导方针处理滥用案件。与前两大支柱相比，并购并没有得到类似的学术关注。12自2017年以来，欧盟委员会越来越有兴趣对违反程序事项的并购进行调查并处以巨额罚款。因此，本文讨论了欧盟合并条例(EUMR)第14条在对与欧盟(EU)规模的合并施加罚款方面的应用。欧盟委员会的决定和欧盟法院对违反程序事项的合并罚款的判决在四个具体章节中进行了讨论。第一部分分析了欧盟法规第14(1)条，该条款授权欧盟委员会对违反程序事项的企业处以最高前一个营业年度总营业额1%的罚款，包括提供不正确或误导性信息等。本节将讨论Facebook的案例，这是欧盟委员会根据新的欧盟法规实施罚款的第一个案例。在这种情况下，尽管这些企业误导了欧共体，但基于所提供的合作，管理局决定减少罚款。此外，解决欧共体在接受提供的合作作为减轻因素时所适用的法律依据以及这是否可能在未来发展成为指导性的“先例”也很重要。第二部分涉及违反欧盟法规第4(1)条和第7(1)条的五起案件，涉及欧盟法规第14(2)条规定的罚款。对于其中的四个，欧盟法院的判决和欧盟委员会和国家竞争管理局(NCA)的决定进行了分析。第五起案件是针对安永会计师事务所(Ernst and Young)的案件，该案件首次对“持枪跳跃”的概念做出了初步裁决。第三部分论述《企业法》第14条第(3)款和合并的罚款方法。通过对这五种情况逐一进行审查，重要的是要解决罚款时考虑的因素。一个明显的缺陷是缺乏法律依据，无论表现为硬法还是软法。在这里，询问欧盟委员会以何种方式施加罚款以及为什么它偶尔反映适用于欧盟竞争法其他支柱的罚款准则是相关的。最后要解决的是政策问题，需要平衡欧共体的自由裁量权和相关的法律原则，如法律确定性、平等待遇、透明度和一致性第四节为结束语。
{"title":"Monetary Fines in EU Mergers: In Need for More Regulation","authors":"N. Memeti","doi":"10.7559/mclawreview.2019.320","DOIUrl":"https://doi.org/10.7559/mclawreview.2019.320","url":null,"abstract":"Monetary fines represent an important instrument to address violations of Competition Law. The European Commission (EC) and the EU Courts have been primarily engaged in imposing fines in cases of breach of the first pillar, and have rarely dealt with cases of abuse based on the fining guidelines issued in accordance with Article 23(2) of Regulation 1/2003. Compared to the first two pillars, mergers have not received similar scholarly attention.1 2 Since 2017, the EC has expressed a growing interest in investigating and imposing significant fines to mergers and acquisitions in breach of procedural matters. Therefore this article addresses the application of Article 14 of the European Union Merger Regulation (EUMR) in imposing fines to mergers with European Union (EU) dimension. The EC decisions and EU Courts’ judgments related to fines on mergers in breach of procedural matters are discussed in four specific sections. The first section analyses article 14(1) of the EUMR, which empowers the EC to impose a fine of up to 1% of the total turnover in the preceding business year on undertakings for breach of procedural matters, including, among others, for providing incorrect or misleading information. This section will address the case of Facebook as the first case in which the EC imposed fines based on the new EUMR. In this case, although the undertakings mislead the EC, based on the offered cooperation, the Authority decided to reduce the fine. In addition, it is also important to address the legal basis applied by the EC in accepting the offered cooperation as a mitigating factor and whether this may develop into a guiding “precedent” in the future. The second section deals with five cases of violations of articles 4(1) and 7(1) EUMR related to fines prescribed in article 14(2) EUMR. With regards to four of them, judgments of EU Courts and decisions of the EC and National Competition Authority (NCA) are analysed. The fifth case, the one on Ernst and Young, provides for the first preliminary ruling on the notion of “gun-jumping”. The third section deals with Article 14(3) and the fining methods on mergers. By reviewing each of these five cases, it is important to address factors taken into consideration when imposing fines. An obvious deficiency is the absence of a legal basis, regardless of whether manifested in hard or soft law. Here it is relevant to inquire in what manner the EC imposes fines and why it occasionally mirrors the fining guidelines applicable to other pillars of EU Competition Law. The last point to be addressed is the one of policy and the need to balance EC discretional powers and relevant legal principles such as legal certainty, equal treatment, transparency, and consistency.3 The fourth section provides for concluding remarks.","PeriodicalId":309646,"journal":{"name":"Market and Competition Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123935498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-04-01DOI: 10.7559/mclawreview.2019.317
N. S. E. Silva
Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.
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Pub Date : 2019-04-01DOI: 10.7559/mclawreview.2019.319
Luca Villani
In its judgment of 31 May 2018, case C-633/16, the European Court of Justice ruled on the preliminary questions referred by the Danish Maritime and Commercial Court in the context of a merger notified to the Danish Competition and Consumer Authority by KPMG DK and EY DK. The referring court asked the ECJ to clarify on the scope of the so-called standstill obligation imposed on the parties of a notifiable transaction by article 7 of the Council Regulation (EC) No. 139/2004 (EUMR). The decision was long awaited, since after having imposed several fines for gun jumping practices in recent times, it is the first case ever in which the Court has been asked to take position on the matter through a preliminary ruling. As for substance, the European Court of Justice stated that article 7, paragraph 1 of the EUMR must be interpreted as meaning that a concentration is implemented only by a transaction which contributes to the change in control of the target undertaking. In doing so, the Court gives a broad overview of the EU merger control system, recalling the fundamental concepts of concentration, control and standstill in order to give a systematic interpretation of the provisions at stake.
在2018年5月31日的C-633/16案判决中，欧洲法院就丹麦海事和商业法院就毕马威DK和安永DK向丹麦竞争和消费者管理局通知的合并提交的初步问题作出了裁决。转介法院要求欧洲法院澄清根据理事会条例(EC) No 139/2004 (EUMR)第7条对应通知交易的各方施加的所谓停滞义务的范围。这一决定是人们期待已久的，因为在最近几次对枪支跳跃行为处以罚款之后，这是有史以来第一次要求法院通过初步裁决就此事采取立场。关于实质内容，欧洲法院指出，《欧洲umr》第7条第1款必须解释为，只有通过有助于改变目标企业控制权的交易才能实施集中。在这样做的过程中，法院对欧盟合并控制制度进行了广泛的概述，回顾了集中、控制和停滞的基本概念，以便对所涉条款作出系统的解释。
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