If both national competition law and article 101 TFEU apply to an agreement, the former must not set rules that are stricter than the latter. Member States remain free, though, to impose stricter rules if they are not classified as ‘competition law’. We analyse relevant jurisprudence by the English and French courts that have dealt with potential conflicts between, on the one hand, EU competition law and, on the other hand, the common law restraint of trade doctrine and the pratiques restrictives de concurrence under French commercial law. We develop criteria that allow (national) ‘competition law’ to be distinguished from similar regulatory interventions into agreements that pursue purposes distinct from article 101 TFEU and which, therefore, must not be regarded as ‘competition law’. This paper illustrates and elaborates on the challenges for the implementation of our approach by focusing on the ban on the use of parity clauses by hotel booking platforms in France, Austria, Italy and Belgium. We map a possible way forward to prevent further regulatory fragmentation in the internal market with regard to the regulation of platform-to-business agreements.
{"title":"What is ‘Competition Law’?—Measuring EU Member States’ Leeway to Regulate Platform-to-Business Agreements","authors":"J. Franck, N. Stock","doi":"10.1093/yel/yeaa006","DOIUrl":"https://doi.org/10.1093/yel/yeaa006","url":null,"abstract":"If both national competition law and article 101 TFEU apply to an agreement, the former must not set rules that are stricter than the latter. Member States remain free, though, to impose stricter rules if they are not classified as ‘competition law’. We analyse relevant jurisprudence by the English and French courts that have dealt with potential conflicts between, on the one hand, EU competition law and, on the other hand, the common law restraint of trade doctrine and the pratiques restrictives de concurrence under French commercial law. We develop criteria that allow (national) ‘competition law’ to be distinguished from similar regulatory interventions into agreements that pursue purposes distinct from article 101 TFEU and which, therefore, must not be regarded as ‘competition law’. This paper illustrates and elaborates on the challenges for the implementation of our approach by focusing on the ban on the use of parity clauses by hotel booking platforms in France, Austria, Italy and Belgium. We map a possible way forward to prevent further regulatory fragmentation in the internal market with regard to the regulation of platform-to-business agreements.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"68 1","pages":"320-386"},"PeriodicalIF":0.4,"publicationDate":"2021-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85246584","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}
{"title":"Use and Abuse of a Promising Concept: What Has Happened to National Constitutional Identity?","authors":"Giuseppe Martinico, O. Pollicino","doi":"10.1093/YEL/YEAA015","DOIUrl":"https://doi.org/10.1093/YEL/YEAA015","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"8 1","pages":"228-249"},"PeriodicalIF":0.4,"publicationDate":"2021-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78820195","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 study tracks the legislative process of the Shareholders’ Rights Directive II as regards the regulation of related party transactions (RPT) and identifies important factors that have led to the current regime of RPT regulation in the EU. While the European Commission’s Proposal subjected material RPTs to approval by the majority of (minority) shareholders (MOM approval) and a number of other requirements, the requirements have been greatly watered down in the legislative process. The analysis suggests that the ambition of the European policy makers to strengthen European capital markets and attract/facilitate more foreign/cross-border investment led the European Commission to propose MOM approval for RPTs based on the feedback/demand from the institutional investors. This proposal, however, faced a backlash from the business community and some Member States. Relatedly, as a result of the pressure of the interest groups that represent the European companies and some reluctant Member States, during the legislative process, numerous compromises have been made, giving wide discretion to Member States in devising a regime of RPT regulation and effectively spelling the death of the European Commission’s ambitions. The study then concludes by connecting this process to accounts of how corporate law develops in the literature.
{"title":"The Political Economy of the Related Party Transactions Regulation in the Shareholders’ Rights Directive II","authors":"A. A. Gözlügöl","doi":"10.1093/YEL/YEAA011","DOIUrl":"https://doi.org/10.1093/YEL/YEAA011","url":null,"abstract":"This study tracks the legislative process of the Shareholders’ Rights Directive II as regards the regulation of related party transactions (RPT) and identifies important factors that have led to the current regime of RPT regulation in the EU. While the European Commission’s Proposal subjected material RPTs to approval by the majority of (minority) shareholders (MOM approval) and a number of other requirements, the requirements have been greatly watered down in the legislative process. The analysis suggests that the ambition of the European policy makers to strengthen European capital markets and attract/facilitate more foreign/cross-border investment led the European Commission to propose MOM approval for RPTs based on the feedback/demand from the institutional investors. This proposal, however, faced a backlash from the business community and some Member States. Relatedly, as a result of the pressure of the interest groups that represent the European companies and some reluctant Member States, during the legislative process, numerous compromises have been made, giving wide discretion to Member States in devising a regime of RPT regulation and effectively spelling the death of the European Commission’s ambitions. The study then concludes by connecting this process to accounts of how corporate law develops in the literature.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"14 1","pages":"497-535"},"PeriodicalIF":0.4,"publicationDate":"2021-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78432634","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab009","DOIUrl":"https://doi.org/10.1093/yel/yeab009","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"252 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77672436","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab008","DOIUrl":"https://doi.org/10.1093/yel/yeab008","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"58 1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77403153","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab003","DOIUrl":"https://doi.org/10.1093/yel/yeab003","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"33 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85209610","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab013","DOIUrl":"https://doi.org/10.1093/yel/yeab013","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"13 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78313201","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab005","DOIUrl":"https://doi.org/10.1093/yel/yeab005","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"29 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83704161","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab006","DOIUrl":"https://doi.org/10.1093/yel/yeab006","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"29 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87123807","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}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/yel/yeab012","DOIUrl":"https://doi.org/10.1093/yel/yeab012","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"8 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74121543","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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