This article proposes changes to the role of the EU hearing officer and looks, as a starting point, to the US administrative model, in particular the role of the Administrative Law Judge. It is argued that the US model makes better use of its hearing examiners to understand and probe contested points of fact or law. The article sets out a proposal for strengthening the function and responsibilities of the EU hearing officer to also include a review of substantive points of the case. The hearing officer’s substantive findings, in addition to reporting on procedure, would be included in a final public report. These relatively modest changes would provide comfort to the parties that some independent scrutiny of disputed facts had taken place whilst the Commission would retain full discretion as to the ultimate decision. However, importantly, the Commission’s decision-making would be aided by a more robust oral hearing. No fundamental changes to the EU’s administrative model would be required for the implementation of this proposal. For practical reasons it is suggested to trial this proposal first in the Commission’s Article 101 and 102 TFEU investigations.
{"title":"A Larger Role for the Hearing Officer: A Modest Proposal","authors":"T. Calvani, J. Leahy","doi":"10.1093/JAENFO/JNX021","DOIUrl":"https://doi.org/10.1093/JAENFO/JNX021","url":null,"abstract":"This article proposes changes to the role of the EU hearing officer and looks, as a starting point, to the US administrative model, in particular the role of the Administrative Law Judge. It is argued that the US model makes better use of its hearing examiners to understand and probe contested points of fact or law. The article sets out a proposal for strengthening the function and responsibilities of the EU hearing officer to also include a review of substantive points of the case. The hearing officer’s substantive findings, in addition to reporting on procedure, would be included in a final public report. These relatively modest changes would provide comfort to the parties that some independent scrutiny of disputed facts had taken place whilst the Commission would retain full discretion as to the ultimate decision. However, importantly, the Commission’s decision-making would be aided by a more robust oral hearing. No fundamental changes to the EU’s administrative model would be required for the implementation of this proposal. For practical reasons it is suggested to trial this proposal first in the Commission’s Article 101 and 102 TFEU investigations.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123223819","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}
This paper uses EU trade policy to explore some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law. The paper’s starting position is that, with this policy and regulatory approach, the EU pursues two main goals: first, to further global standards of human rights protection and, second, to further regulatory convergence toward its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension of EU procurement law for the case law of the Court of Justice on good administration and access to justice, as recognised in the Charter of Fundamental Rights of the European Union. The paper concentrates on public procurement because of its relevance in free trade agreements between the EU and third countries, as well as the relevance of legislative and case law requirements concerning procurement remedies. The paper assesses both the outward and inward implications of the territorial extension for the Court of Justice’s case law. The discussion in the paper also raises general issues concerning procedural design and the consideration of foreign law by the Court of Justice in different settings.
{"title":"Territorial Extension and Case Law of the Court of Justice: Good Administration and Access to Justice in Procurement as a Case Study","authors":"A. Sanchez-Graells","doi":"10.2139/ssrn.3081061","DOIUrl":"https://doi.org/10.2139/ssrn.3081061","url":null,"abstract":"This paper uses EU trade policy to explore some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law. The paper’s starting position is that, with this policy and regulatory approach, the EU pursues two main goals: first, to further global standards of human rights protection and, second, to further regulatory convergence toward its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension of EU procurement law for the case law of the Court of Justice on good administration and access to justice, as recognised in the Charter of Fundamental Rights of the European Union. The paper concentrates on public procurement because of its relevance in free trade agreements between the EU and third countries, as well as the relevance of legislative and case law requirements concerning procurement remedies. The paper assesses both the outward and inward implications of the territorial extension for the Court of Justice’s case law. The discussion in the paper also raises general issues concerning procedural design and the consideration of foreign law by the Court of Justice in different settings.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126218880","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}
Because carbon taxes can lead to loss of competitiveness, applying tariffs on imports from non-carbon-restricting countries helps address the cost disadvantage faced by producers in carbon-restricting countries. Such tariffs, known as border carbon adjustments (BCAs), can also help reduce possible carbon “leakage,” or the growth in foreign emissions due to increased production of carbon-intensive goods in non-carbon-restricting countries. We demonstrate that BCAs that do not exceed the burdens imposed by carbon taxation on domestic like products could be consistent with World Trade Organization (WTO) rules. However, “neutral” (i.e., nondiscriminatory) BCAs might still be inefficiently high from a global welfare perspective. This stems from the misaligned focus of BCAs on imports rather than production—the real cause of emissions. The discrepancy between neutrality and efficiency enables carbon-restricted industries to seek inefficiently high BCAs. Recognition of this discrepancy strengthens the case for multilateral alternatives that curb global carbon emissions.
{"title":"The Opportunities and Limitations of Neutral Carbon Tariffs","authors":"Juscelino F. Colares, Ashwin Rode","doi":"10.1093/ALER/AHX012","DOIUrl":"https://doi.org/10.1093/ALER/AHX012","url":null,"abstract":"Because carbon taxes can lead to loss of competitiveness, applying tariffs on imports from non-carbon-restricting countries helps address the cost disadvantage faced by producers in carbon-restricting countries. Such tariffs, known as border carbon adjustments (BCAs), can also help reduce possible carbon “leakage,” or the growth in foreign emissions due to increased production of carbon-intensive goods in non-carbon-restricting countries. We demonstrate that BCAs that do not exceed the burdens imposed by carbon taxation on domestic like products could be consistent with World Trade Organization (WTO) rules. However, “neutral” (i.e., nondiscriminatory) BCAs might still be inefficiently high from a global welfare perspective. This stems from the misaligned focus of BCAs on imports rather than production—the real cause of emissions. The discrepancy between neutrality and efficiency enables carbon-restricted industries to seek inefficiently high BCAs. Recognition of this discrepancy strengthens the case for multilateral alternatives that curb global carbon emissions.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115187127","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}
This paper offers a cursory overview of the rules applicable to transparency and disclosure of documents in the context of public procurement of the EU Institutions under the rules of the Financial Regulation, its Rules on Implementation, and the EU FOIA Regulation (Reg 1049/2001). The paper pays particular attention to the protection of commercial interests and business secrets in the context of procurement debriefing. It forms part of a larger comparative law project carried out by the European Procurement Law Group.
{"title":"Transparency in Procurement by the EU Institutions","authors":"A. Sanchez-Graells","doi":"10.2139/SSRN.3020168","DOIUrl":"https://doi.org/10.2139/SSRN.3020168","url":null,"abstract":"This paper offers a cursory overview of the rules applicable to transparency and disclosure of documents in the context of public procurement of the EU Institutions under the rules of the Financial Regulation, its Rules on Implementation, and the EU FOIA Regulation (Reg 1049/2001). The paper pays particular attention to the protection of commercial interests and business secrets in the context of procurement debriefing. It forms part of a larger comparative law project carried out by the European Procurement Law Group.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125675090","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}
We empirically investigate the effect of oversight on contract outcomes in public procurement. In particular, we stress a distinction between public and private oversight: the former is a set of bureaucratic checks enacted by contracting offices, while the latter is carried out by private insurance companies whose money is at stake through so-called surety bonding. We analyze the universe of U.S. federal contracts in the period 2005-2015 and exploit an exogenous variation in the threshold for both sources of oversight, estimating their causal effects on costs and execution time. We find that: (i) public oversight negatively affects outcomes, in particular for less competent buyers; (ii) private oversight has a positive effect on outcomes by affecting both the ex-ante screening of bidders - altering the pool of winning firms - and the ex-post behavior of contractors.
{"title":"Can the Private Sector Ensure the Public Interest? Evidence from Federal Procurement","authors":"Leonardo M. Giuffrida, Gabriele Rovigatti","doi":"10.2139/ssrn.3274529","DOIUrl":"https://doi.org/10.2139/ssrn.3274529","url":null,"abstract":"We empirically investigate the effect of oversight on contract outcomes in public procurement. In particular, we stress a distinction between public and private oversight: the former is a set of bureaucratic checks enacted by contracting offices, while the latter is carried out by private insurance companies whose money is at stake through so-called surety bonding. We analyze the universe of U.S. federal contracts in the period 2005-2015 and exploit an exogenous variation in the threshold for both sources of oversight, estimating their causal effects on costs and execution time. We find that: (i) public oversight negatively affects outcomes, in particular for less competent buyers; (ii) private oversight has a positive effect on outcomes by affecting both the ex-ante screening of bidders - altering the pool of winning firms - and the ex-post behavior of contractors.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134287402","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}
Various European Union (EU) regulatory bodies have championed the use of environmental markets as a key policy tool to achieve environmental protection either in lieu of, or in addition to, more traditional regulatory programmes. When these markets work properly, they have the capacity to provide enhanced levels of environmental quality and can operate as more efficient mechanisms for protecting natural resources that provide vital services to people. However, if regulatory safeguards are absent from the legal frameworks creating such markets, it is unlikely that the theoretical benefits of these arrangements will be realized. This article assesses whether a number of EU environmental markets meet design standards that guard against these risks. It concludes that despite recognition of the danger of market manipulation and outright fraud, to date regulators in the EU have largely responded to these risks in an ad hoc and incomplete fashion, rather than embedding the mechanisms for operational accountability into the regulatory frameworks that govern green trading arrangements. Finally, this article identifies and prescribes five essential pillars for market-based programmes for the environment that are necessary to provide operational safeguards. These include informational safeguards, transparency standards, rule of law safeguards, verifiable performance standards and financial fidelity rules.
{"title":"Countering Abuse in EU Environmental Markets: The Case for Integrated Operational Safeguards","authors":"T. Kaime","doi":"10.1111/REEL.12195","DOIUrl":"https://doi.org/10.1111/REEL.12195","url":null,"abstract":"Various European Union (EU) regulatory bodies have championed the use of environmental markets as a key policy tool to achieve environmental protection either in lieu of, or in addition to, more traditional regulatory programmes. When these markets work properly, they have the capacity to provide enhanced levels of environmental quality and can operate as more efficient mechanisms for protecting natural resources that provide vital services to people. However, if regulatory safeguards are absent from the legal frameworks creating such markets, it is unlikely that the theoretical benefits of these arrangements will be realized. This article assesses whether a number of EU environmental markets meet design standards that guard against these risks. It concludes that despite recognition of the danger of market manipulation and outright fraud, to date regulators in the EU have largely responded to these risks in an ad hoc and incomplete fashion, rather than embedding the mechanisms for operational accountability into the regulatory frameworks that govern green trading arrangements. Finally, this article identifies and prescribes five essential pillars for market-based programmes for the environment that are necessary to provide operational safeguards. These include informational safeguards, transparency standards, rule of law safeguards, verifiable performance standards and financial fidelity rules.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124841528","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}
This working paper focuses on the issue of corruption in large-scale public procurement contracts and to what extent the existing arbitral process as it is, could be a proper dispute resolution system to deal with such issues. The discussion will focus upon an example of public procurement which recently occurred in Greece.
{"title":"Corruption in Public Procurement: Siemens Greek Bribery Scandal","authors":"P. Giosa","doi":"10.2139/ssrn.3577112","DOIUrl":"https://doi.org/10.2139/ssrn.3577112","url":null,"abstract":"This working paper focuses on the issue of corruption in large-scale public procurement contracts and to what extent the existing arbitral process as it is, could be a proper dispute resolution system to deal with such issues. The discussion will focus upon an example of public procurement which recently occurred in Greece.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126646232","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}
The contemporary system of the public service in Russia was formed as a result of the comprehensive reform, which began in the 2000s. The reform was aimed at the qualitative transformation of the public service institutions, improving the performance of public servants, the implementation of effective public service staffing, information, education, anti-corruption, and human resources management techniques. The Institute of the Russian public service is developing dynamically. To date, a sufficiently detailed legal framework for the organization and functioning of the public service in Russia has been formed. There have been positive changes in certain staffing techniques, designed to enhance the efficiency of public servants’ activities. However, the process of reforming and development of the public service has not yet been completed. The need to take systematic measures to continue the process of reforming and developing the institution of the public service in Russia is realized today at the political level. In the coming years, it is important to complete the qualitative transformation of the public service institution, optimize its functioning, and apply the effective modern personnel, information, educational, anti-corruption, and management techniques in the public service.
{"title":"Public Service in Russia","authors":"Kamil Ramazanov","doi":"10.2139/ssrn.3080821","DOIUrl":"https://doi.org/10.2139/ssrn.3080821","url":null,"abstract":"The contemporary system of the public service in Russia was formed as a result of the comprehensive reform, which began in the 2000s. The reform was aimed at the qualitative transformation of the public service institutions, improving the performance of public servants, the implementation of effective public service staffing, information, education, anti-corruption, and human resources management techniques. The Institute of the Russian public service is developing dynamically. To date, a sufficiently detailed legal framework for the organization and functioning of the public service in Russia has been formed. There have been positive changes in certain staffing techniques, designed to enhance the efficiency of public servants’ activities. However, the process of reforming and development of the public service has not yet been completed. The need to take systematic measures to continue the process of reforming and developing the institution of the public service in Russia is realized today at the political level. In the coming years, it is important to complete the qualitative transformation of the public service institution, optimize its functioning, and apply the effective modern personnel, information, educational, anti-corruption, and management techniques in the public service.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130666684","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}
The meaning of procurement system is to organize interaction between state and municipal customers with subjects of the market, which provides the highest efficiency of the financial costs of providing the needs of customers and the growth of the real economy.
{"title":"Examples of Restriction of Competition in the Procurement for State and Municipal Needs (Example of the Russian Contract System)","authors":"N. Mamedova","doi":"10.2139/ssrn.2858217","DOIUrl":"https://doi.org/10.2139/ssrn.2858217","url":null,"abstract":"The meaning of procurement system is to organize interaction between state and municipal customers with subjects of the market, which provides the highest efficiency of the financial costs of providing the needs of customers and the growth of the real economy.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123498942","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 : 2016-09-09DOI: 10.21684/2412-2343-2016-3-2-57-66
F. Verbic
This article provides an overview of the federal administrative justice system in Argentina. It begins with an explanation of how the power to enact procedural law and to organize administrative courts is distributed between the federal state and the local states. It then describes the core constitutional and statutory principles and structures of administrative jurisdiction and the courts, and discusses the lack of a general special procedure to deal with actions involving the federal state and federal subject matter issues (except for interim measures and ‘amparo’ proceedings). The article goes on to provide an explanation of what is currently happening regarding class actions within this context, and it ends with remarks by the author on some provisional conclusions.
{"title":"An Overview of Administrative Justice in Argentina","authors":"F. Verbic","doi":"10.21684/2412-2343-2016-3-2-57-66","DOIUrl":"https://doi.org/10.21684/2412-2343-2016-3-2-57-66","url":null,"abstract":"This article provides an overview of the federal administrative justice system in Argentina. It begins with an explanation of how the power to enact procedural law and to organize administrative courts is distributed between the federal state and the local states. It then describes the core constitutional and statutory principles and structures of administrative jurisdiction and the courts, and discusses the lack of a general special procedure to deal with actions involving the federal state and federal subject matter issues (except for interim measures and ‘amparo’ proceedings). The article goes on to provide an explanation of what is currently happening regarding class actions within this context, and it ends with remarks by the author on some provisional conclusions.","PeriodicalId":340197,"journal":{"name":"Comparative & Global Administrative Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125108320","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}
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