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.
{"title":"Europeanization through Standardization: ICT and Telecommunications","authors":"M. Gamito","doi":"10.1093/YEL/YEY018","DOIUrl":"https://doi.org/10.1093/YEL/YEY018","url":null,"abstract":"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.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"49 1","pages":"395-423"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82691370","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":"Upholding a Principled Approach to the Use of EU Administrative Activities Externally: What Role for the Court of Justice of the European Union?","authors":"Ilaria Vianello","doi":"10.1093/yel/yey007","DOIUrl":"https://doi.org/10.1093/yel/yey007","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"42 1","pages":"551-568"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81433406","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}
Innovation has so far been handled by competition law according to market structure, that is, by assuming that market power also allows undertakings to evade the competitive pressures that spur innovation. This structural approach has fitted innovation into a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed in by a static outlook and is called on to apply no harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies. The first advance is the ‘resource-based view’, which connects competitive advantage with firm heterogeneity. Since undertakings do not have the same capabilities, the exit of innovators from the market might not be compensated for by the entry of equally innovating undertakings even if barriers to entry are low. Harm to innovation is thus centred on assets granting ‘innovation capabilities’, such as intellectual property or pipeline products. Cases of abusive refusal to license and mergers of parallel research show that rival claims over these assets are to be resolved based on differences in those innovation capabilities. The second advance is the theory of disruptive innovation, which explains major changes in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with the notion of competition on the merits allowing the exclusion of less efficient competitors. Competition law must therefore adapt to strategies which do not show an effect on market structure, notably the higher prices of market power, but which are aimed at preventing disruptive innovation from occurring.
{"title":"Innovation in EU competition law : The resource-based view and disruption","authors":"F. Costa-Cabral","doi":"10.1093/YEL/YEY019","DOIUrl":"https://doi.org/10.1093/YEL/YEY019","url":null,"abstract":"Innovation has so far been handled by competition law according to market structure, that is, by assuming that market power also allows undertakings to evade the competitive pressures that spur innovation. This structural approach has fitted innovation into a tried-and-tested analytical and normative framework. Its limits have nonetheless become apparent as competition law is increasingly hemmed in by a static outlook and is called on to apply no harm to innovation unrelated to market power. As such, this paper proposes complementing a structural approach with two advances from strategic management studies. The first advance is the ‘resource-based view’, which connects competitive advantage with firm heterogeneity. Since undertakings do not have the same capabilities, the exit of innovators from the market might not be compensated for by the entry of equally innovating undertakings even if barriers to entry are low. Harm to innovation is thus centred on assets granting ‘innovation capabilities’, such as intellectual property or pipeline products. Cases of abusive refusal to license and mergers of parallel research show that rival claims over these assets are to be resolved based on differences in those innovation capabilities. The second advance is the theory of disruptive innovation, which explains major changes in consumer preferences and production methods. Strategic management has established that an inefficient start is an integral part of disruption, allowing disruptors to be ignored until their productive efficiency increases enough to shift the market. This contrasts with the notion of competition on the merits allowing the exclusion of less efficient competitors. Competition law must therefore adapt to strategies which do not show an effect on market structure, notably the higher prices of market power, but which are aimed at preventing disruptive innovation from occurring.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"20 1","pages":"305-343"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89048547","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":"The Better Regulation Guidelines and the Regulatory Scrutiny Board as a ‘Support’ for Judicial Review: A Case Study of EU Consumer Law","authors":"E. V. Schagen","doi":"10.1093/YEL/YEY010","DOIUrl":"https://doi.org/10.1093/YEL/YEY010","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"33 1","pages":"597-625"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78277269","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 purpose of this article is to examine the principle of fairness as it appears in EU data protection law. Despite the fact that this principle is often referred to as a key tenet of the data protection framework, a precise understanding of its role remains elusive. As such, this article aims to provide the first steps towards a more thorough understanding of the fairness principle. This is significant as it is argued that fairness is delineated from the other data protection principles and thus this article aims to clarify its overarching role and importance in the General Data Protection Regulation (GDPR). The article divides the fairness principle into procedural fairness and fair balancing elements which are evident in the fairness checks and balances in the GDPR. Building on this analysis the article identifies gaps, shortcomings and areas for future research thus calling for further analysis on the precise contours of the fairness principle.
{"title":"Data Protection and the Role of Fairness","authors":"Damian Clifford, J. Ausloos","doi":"10.2139/SSRN.3013139","DOIUrl":"https://doi.org/10.2139/SSRN.3013139","url":null,"abstract":"The purpose of this article is to examine the principle of fairness as it appears in EU data protection law. Despite the fact that this principle is often referred to as a key tenet of the data protection framework, a precise understanding of its role remains elusive. As such, this article aims to provide the first steps towards a more thorough understanding of the fairness principle. This is significant as it is argued that fairness is delineated from the other data protection principles and thus this article aims to clarify its overarching role and importance in the General Data Protection Regulation (GDPR). The article divides the fairness principle into procedural fairness and fair balancing elements which are evident in the fairness checks and balances in the GDPR. Building on this analysis the article identifies gaps, shortcomings and areas for future research thus calling for further analysis on the precise contours of the fairness principle.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"38 1","pages":"130-187"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78136759","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 article revisits the debate on direct applicability and direct effect of EU international agreements by questioning the role of the so called gatekeepers. It considers the established role of the Court of Justice of the EU as the gatekeeper of the EU legal order through identifying the stages of gatekeeping and their implications. It further analyses the possibilities of sidelining the Court through various techniques, which include the agreement between the parties to the international agreement. A more controversial challenge to the Court’s position stems from a practice emerging from Council decisions concluding a number of international agreements. These decisions make a strong pronouncement on the exclusion of direct effect for the entire agreement. The status of such pronouncements is analysed with reference to CJEU’s jurisprudence as well as the relevant rules of international law.
{"title":"Who are the ‘gatekeepers’?: in continuation of the debate on direct applicability and direct effect of EU international agreements","authors":"N. Ghazaryan","doi":"10.1093/YEL/YEY003","DOIUrl":"https://doi.org/10.1093/YEL/YEY003","url":null,"abstract":"The article revisits the debate on direct applicability and direct effect of EU international agreements by questioning the role of the so called gatekeepers. It considers the established role of the Court of Justice of the EU as the gatekeeper of the EU legal order through identifying the stages of gatekeeping and their implications. It further analyses the possibilities of sidelining the Court through various techniques, which include the agreement between the parties to the international agreement. A more controversial challenge to the Court’s position stems from a practice emerging from Council decisions concluding a number of international agreements. These decisions make a strong pronouncement on the exclusion of direct effect for the entire agreement. The status of such pronouncements is analysed with reference to CJEU’s jurisprudence as well as the relevant rules of international law.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"223 1","pages":"27-74"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85932127","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":"Soft Law in Environmental Matters and the Role of the European Courts: Too Much or Too Little of It?","authors":"M. Eliantonio","doi":"10.1093/YEL/YEY011","DOIUrl":"https://doi.org/10.1093/YEL/YEY011","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"30 1","pages":"496-524"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85948881","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 question as to whether fundamental rights impose duties on private individuals is as much an old constitutional chestnut as it is a controversial current affair. Can a hotel owner deny hosting the member of a neo-Nazi party?1 Can a devout Christian baker refuse to make a cake for a same-sex wedding?2 Can a company dismiss a Muslim employee because she refuses to take her headscarf off at work?3 At the heart of these cases lies the issue whether private behaviour should be bound by fundamental rights, a problem legal doctrine calls horizontal effect. Courts across the globe have, in different ways and to different extents, recognised such an effect. They have thereby changed the rights and obligations private individuals hold towards each other. By the same token, they have changed private law as such. Private law no longer is an autonomous domain, insulated from external pressures. As its making and application are put under constitutional control, it has become, just like other legal fields, an area of ‘applied constitutional law’.4
{"title":"Doing Too Little or Too Much? Private Law Before the European Court of Human Rights","authors":"Jan Zglinski","doi":"10.1093/YEL/YEY013","DOIUrl":"https://doi.org/10.1093/YEL/YEY013","url":null,"abstract":"The question as to whether fundamental rights impose duties on private individuals is as much an old constitutional chestnut as it is a controversial current affair. Can a hotel owner deny hosting the member of a neo-Nazi party?1 Can a devout Christian baker refuse to make a cake for a same-sex wedding?2 Can a company dismiss a Muslim employee because she refuses to take her headscarf off at work?3 At the heart of these cases lies the issue whether private behaviour should be bound by fundamental rights, a problem legal doctrine calls horizontal effect. Courts across the globe have, in different ways and to different extents, recognised such an effect. They have thereby changed the rights and obligations private individuals hold towards each other. By the same token, they have changed private law as such. Private law no longer is an autonomous domain, insulated from external pressures. As its making and application are put under constitutional control, it has become, just like other legal fields, an area of ‘applied constitutional law’.4","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"91 1","pages":"98-129"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83912766","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":"The EU Framework for Financing UN Peace Operations","authors":"Francesco Presutti","doi":"10.1093/YEL/YEY001","DOIUrl":"https://doi.org/10.1093/YEL/YEY001","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"68 1","pages":"75-97"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81406042","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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