Browsing by Subject "European law"
Now showing items 1-4 of 4
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(2024)This paper examines the relationship between competition damages and leniency programmes in the EU. The idea of a leniency programme is that a member of a cartel discloses its participation in the cartel and the existence of the cartel to the competition authorities. If the applicant provides sufficient information and cooperates with the authorities, it is granted immunity from fines. However, the immunity recipient remains liable for the damage caused by the cartel through overcharging. There has been a global decline in the number of leniency applications, and it is likely that the introduction of private enforcement in the EU has contributed to this trend. In this study, it was assessed whether private enforcement or leniency programmes should be reformed in a way that would encourage private enforcement while safeguarding the effectiveness of leniency. In order to assess this issue, the EU system was compared to the equivalent US system, as private enforcement of competition law is much more active in the latter. The main finding is that in the US, cooperation between leniency applicants and civil plaintiffs is encouraged by a combination of carrots and sticks. To receive immunity from fines, the leniency applicant must cooperate with private plaintiffs by providing them with all the necessary information. In the EU, Directive 2014/104 on the private enforcement of competition law has harmonised some of the rules of the Member States. Leniency statements cannot be disclosed, and other information provided under the leniency programme can only be disclosed only after the Commission has closed its proceedings. In the light of the US system, it is important to provide for carrots and sticks to ensure the effectiveness of leniency and private enforcement. Directive 2014/104 is based on the principle of full compensation, and under this principle it is not possible to provide for further limitations on the liability of immunity recipients. If a derogation from the principle of full compensation is allowed, it would be possible to simultaneously increase the effectiveness of both leniency and private enforcement. This would require the introduction of class actions in the EU, while the liability of an immunity recipient would be limited by allowing an exemption from joint and several liability. These reforms would increase the deterrence of private enforcement while at the same time incentivising leniency applications.
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(2022)For the past decades, the society, economy as well as the mundane lives of people have been subject to a digital revolution. The undertakings operating in digital markets have become so powerful that their influence is no longer purely economic. Hence, it has also raised competition concerns. Namely, whether current competition policy is still able to fulfil its purposes in the digital environment. The vivid discussion on the topic among scholars and authorities as well as the numerous competition cases, related to digital platforms, prove the currency of the topic. This thesis examines how the existing objectives of competition policy fit into the framework of digital markets. It aims to provide answers to three research questions, which relate to: (i) the current interpretation of competition policy objectives; (ii) the challenges digital markets have imposed on the application of these objectives; and (iii) how the interpretation of these objectives should be modified, for them to fit better into their new operational environment. The focus is on EU competition policy, although reference will also be made to corresponding policies in the United States and in some of the Member States. The thesis concludes that the current scope and application of competition policy objectives is not fit for purpose in digital markets. This is largely due to the significantly different characteristics between digital and “traditional” markets. Particularly, the significance of data is of key concern in the digital markets. Services are often provided at zero-price, hence, policies drafted around price-centric analysis are not entirely suitable to the digital markets. Especially, including non-price parameters into the interpretation of policy objectives should be considered. Furthermore, the thesis also takes a brief look at the newly adopted Digital Markets Act and implications thereof.
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(2023)A number of institutions, regulations, treaties, and courts impact how human and environmental rights are discussed, steered and enforced. The recent proposal for a Directive on Corporate Sustainability Due Diligence, published by the European Commission 23rd February 2022, is a potentially significant contribution to the directions these rights will take going forward. A particularly intriguing point about the directive is that it aims to foster sustainable and responsible corporate behaviour in the whole supply chain, often having a global reach. This extends to non-EU companies who fall under the directive by meeting certain thresholds and conditions. The directive has an emphasis on the protection of human rights and the environment not only inside, but also outside, of the European Union. To realise the governance of corporate behaviour inside and outside the EU, cross-border considerations inevitably come to the forefront and with this, an old legal concept and doctrine – extraterritoriality. This paper examines to what extent one can detect extraterritoriality at work in different fields of law, most notably how the European Court of Human Rights and the European Court of Justice have applied this notion and ultimately, to what extent extraterritoriality could be applied to the Directive on Corporate Sustainability Due Diligence. Methodologically, the paper follows a legal policy research framework with regards to analysing different approaches to which the proposed directive could base its interpretation on extraterritoriality. In line with this approach, the paper will outline and analyse; the UN Guiding principles of the on Business and Human Rights; Professor Ruggie’s Report on the Issue of Human Rights and Transnational Corporations and other Business Enterprises; the European Convention on Human rights; the International Covenant on Civil and Political Rights; recent case law of the European Court of Human Rights; case law of the European Court of Justice on competition law; the European Commission’s decisions relating to mergers and finally, recent case law of the European Court of Justice where extraterritoriality has been explicitly mentioned. The above highlighted so as to discover the level of precedence for the way in which extraterritorial jurisdiction might be construed in the coming directive. The paper will conclude by suggesting in what ways the directive could gain in extraterritorial scope and application in order to foster the protection of human rights and the environment.
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(2020)Nowadays, it is common knowledge that while the responsibility for direct taxation falls within the competence of the member states of the EU, they must nonetheless exercise this competence consistently with EU law. As a result, the EU Member States' direct tax measures may not constitute a prohibited restriction on the exercise of the fundamental freedoms, including the free movement of capital. The free movement of capital is enshrined in Article 63(1) TFEU as follows: "Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited." Unlike the other freedoms, Article 63(1) TFEU also extends its protective effects to extra-EU situations by prohibiting, in equal terms, restrictions on movements of capital between Member States and third countries (i.e., countries that are not Member States of the EU). Despite this unique dimension, the scope of the free movement of capital appears nonetheless to overlap with the scopes of other fundamental freedoms. This overlap is especially evident with the freedom of establishment, since the economic activity of direct investment may constitute at the same time an act of establishment within the meaning of Article 49 TFEU and a capital movement under Article 63(1) TFEU. The overlap concerns situations where a direct investment meets the definite influence criterion (i.e., confers on the holder a definite influence over an undertaking's decisions and activities), which is one of the characteristics of the notion of the establishment. This study investigates the relationship between Articles 63(1) TFEU and 49 TFEU in the field of direct taxation to find an answer to the following research question: In which situations may a taxpayer who has made a direct investment from a Member State to a third country or from a third country to a Member State invoke Article 63(1) TFEU in order to question the compatibility of a national direct tax measure with the free movement of capital? This is a critical question for the erga omnes effects of Article 63(1) TFEU: If the provisions on the freedom of establishment can restrict the scope of application of Article 63(1) TFEU in a third-country context with respect to direct investments, such investments made to or from third countries would be excluded from the protection of the Treaty. The Court's doctrinal understanding of the relationships between the Treaty freedoms at issue has gradually developed over the last two decades. In its early intra-EU case law, the Court seemed to be of the view that parallel application of the free movement of capital and the freedom of establishment is possible. However, in its subsequent third-country case law relating to direct taxation, the Court has not followed the same approach but developed a "primarily affected" doctrine under which, the primarily affected Treaty freedom, if found, will preclude the application of other potentially (but less) affected Treaty freedom(s) in the case at stake. According to the findings of this study, the freedom of establishment is the primarily affected freedom and thereby precludes the application of Article 63(1) TFEU in the case where a national direct tax measure exclusively applies to holdings involving definite influence. In all other situations, regardless of the type of tax legislation, Article 63(1) TFEU applies. The Court's restrictive approach to the applicability of Article 63(1) TFEU in third-country settings can be criticized on several grounds. Even though the Court is not expected to change its settled approach in this respect, it should clarify in its future case law when the definite influence criterion is met for different types of holdings, especially concerning holdings in companies limited by shares and in partnerships. The needed guidance would enhance the uniform application of Article 63(1) TFEU in different Member States and provide legal certainty to taxpayers.
Now showing items 1-4 of 4