Abstract
Drawing on knowledge from the previous chapter comparative studies can facilitate harmonisation, in this context, the European Union (EU) harmonisation. Comparatists are in agreement that the European legal order and national legal orders require harmonisation projects to be tuned with the national legal cultures in order to avoid unwanted side-effects. Understanding the political process and the dynamics of legal culture are important skills of comparative law and should be employed “for easing the pain of European harmonisation”. This is especially important in the context of procedural rules, as these rules are more pertinent to the legal culture of a Member State, as they are a cultural product that reflects values and ideologies of those who enacted them. Therefore, without this ‘tuning’, the EU measures can lead to fragmentation of national legal systems—opening a gap between the “EU and Us”.
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Notes
- 1.
Banakas (2002).
- 2.
Cappelletti (1970), p. 881.
- 3.
Especially, in the context of economic justification for harmonisation which will be discussed in Sect. 3.5.
- 4.
Xanthaki (2011), pp. 548–549.
- 5.
This principle alongside to other EU principles, such as equivalence and efficiency will be further discussed in Chap. 4.
- 6.
Snyder (1990), p. 3.
- 7.
Snyder (1993), p. 19.
- 8.
The Spaak Report, Centre Virtuel de la Connaissance sur l’Europe (CVCE) 2/09/2012.
- 9.
Speech delivered by Italianer A, DG Competition, European Commission, ‘The ECN, convergence and enforcement of EU competition law: achievements and challenges’, on 3 October 2013 during the European Competition Day, Vilnius, Lithuania.
- 10.
Lohse (2011), p. 311.
- 11.
Ibid, p. 282.
- 12.
Dworkin (1988).
- 13.
A failure to correctly transpose a directive, may result in infringement proceedings and a fine being imposed under Article 258 TFEU and Article 260 TFEU.
- 14.
At the time of writing, the United Kingdom (UK) is still officially the Member State of the EU.
- 15.
The Council and the Parliament must adopt a legislative proposal either at the first reading or at the second reading. Provided that the two institutions do not reach an agreement after the second reading a conciliation committee is arranged. If the text agreed by the conciliation committee is acceptable to both institutions at the third reading, the legislative act is adopted.
- 16.
For example, during the period of 2007–2014, the Commission produced over 700 impact assessments; in the same period, the European Parliament assessed the impact of around 20 of its amendments, while the Council assessed none. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results—an EU agenda, COM(2015) 215 final.
- 17.
The Regulatory Fitness and Performance Programme (REFIT) is the Commission’s programme for ensuring that EU legislation remains fit for purpose over its lifetime and delivers the results intended by EU law makers.
- 18.
The Board assesses the quality of the impact assessments which inform political decision-making.
- 19.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Better regulation for better results—an EU agenda, COM(2015) 215 final.
- 20.
His term ended in October 2019.
- 21.
- 22.
Article 17 TEU.
- 23.
Interinstitutional Agreement on Better Law-Making [2003] OJ C321/1, points 25 and 26. The 2003 Agreement has now been replaced by the 2016 Agreement.
- 24.
Available at: https://ec.europa.eu/info/consultations_en.
- 25.
Robinson (2017), p. 239.
- 26.
Note: 27 once the UK officially leaves the EU.
- 27.
https://europa.eu/european-union/eu-law/decision-making/procedures_en Accessed 20 July 2019.
- 28.
Ibid, COM(2015) 215 final.
- 29.
Schulz and Konig (2000), p. 657.
- 30.
Tsebelis and Garrett (2001), p. 375.
- 31.
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 December 2007. 2007/C 306/01.
- 32.
Part A Declarations concerning the Treaties ‘Declaration on Article 16(4) of the Treaty of the European Union and article 238 of the Treaty on the Functioning of the European Union’, C 326/340-342, OJ 26/10/2012, s2 Article 4, s1, Articles 2 and 3.
- 33.
Hix (2016), pp. 202–203.
- 34.
Kroger and Friedrich (2013), pp. 178–179.
- 35.
Hauser (2011), pp. 687–688.
- 36.
http://ec.europa.eu/transparencyregister/public/homePage.do Accessed 10 May 2019.
- 37.
Panke (2012), pp. 134–135.
- 38.
Case T-113/89 Nefarma and others v. Commission [1990] ECR II-797, para 79.
- 39.
Note: the Commission seems to use different notions interchangeably.
- 40.
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union—Consolidated version of the Treaty on the Functioning of the European Union—Protocols—Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007—Tables of equivalences. OJ C 326, 26/10/2012. 2012/C 326/01.
- 41.
Note: Regulation 17/62 was superseded by the Regulation 1/2003 on 1st May 2004.
- 42.
Article 288(2) TFEU.
- 43.
Article 288 TFEU.
- 44.
Directive 2014/104/EU.
- 45.
Directive (EU) 2019/1.
- 46.
See, for instance, Proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, COM(2017) 142 final.
- 47.
For further reading on this issue, see Stefan (2012), pp. 49–69.
- 48.
Rodger and MacCulloch (2015), p. 19.
- 49.
Monnet (1978), pp. 352–353.
- 50.
Neale and Goyder (1980), p. 491.
- 51.
Georgiev (2007), p. 974.
- 52.
Gerber (2007).
- 53.
Whish and Sufrin (1993), p. 16.
- 54.
Nagy (2019). Yet, the US class action was dismissed as unsuitable for the EU.
- 55.
Agreement between the Government of the United States of America and the Commission of the European Communities regarding the application of their competition laws—Exchange of interpretative letters with the Government of the United States of America, OJ L 95, 27.4.1995, pp. 47–52; 98/386/EC, ECSC: Decision of the Council and of the Commission of 29 May 1998 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws, OJ L 173, 18.6.1998, pp. 26–27; US-EU Merger Working Group, Best Practices On Cooperation In Merger Investigations.
- 56.
The CJEU is divided into two courts: Court of Justice (CJ) and the General Court (GC). Given that the GC was created only in 1989, for consistency the CJEU and CJ will be used interchangeably.
- 57.
Article 19(2) TEU. Note: during the time of writing this book, the UK was still an official Member State of the EU.
- 58.
Woods and Watson (2012), p. 42.
- 59.
There is only a small possibility to challenge this to secure the quality of the CJEU and its judgments introduced by the Treaty of Lisbon. According to Article 255 TFEU, a panel, consisting of senior lawyers and judges, can give an opinion on the suitability of candidates proposed by the Member States, merely by saying ‘yes’ or ‘no’.
- 60.
Article 253 TFEU.
- 61.
Kiikeri (2001).
- 62.
Boizard v Commission 63, 64/79 [1980] ECR 3002, Advocate-General Mr. Warner. Also, see Schlesinger (1995), pp. 480–481.
- 63.
Kiikeri (2001), p. 289.
- 64.
Lohse (2011), p. 297.
- 65.
Commission report (2016), p. 4.
- 66.
These will be further explored in Chap. 4.
- 67.
Kral (2016), p. 221.
- 68.
Thomas and Lynch-Wood (2008), p. 188.
- 69.
Kral (2016), p. 234.
- 70.
Note: the opposite four assumptions will apply in this case. For further discussion, see Kral (2016), p. 235.
- 71.
Directive 2014/104/EU.
- 72.
- 73.
Frese (2014), pp. 93–94.
- 74.
Case 33/76 Rewe [1976] ECR 1989; Case 45/76 Comet [1976] ECR 2043.
- 75.
Case 229/86 Brother Industries [1987] ECR 3757. Even though no new obligations can be crafted, nevertheless, it can have far-reaching implications for the division of powers within the Member States, as seen, for instance, in Penycoed (Case C-230/01 [2004] ECR I-937); and Consorzio Industrie Fiammiferi (C-198/01 [2003] ECR I-8055).
- 76.
Harnay and Vigouroux (2002), pp. 87–102.
- 77.
Mancini and Keeling (1994).
- 78.
See, for instance, Case C-245/02 Anheuser Busch [2004] ECR-I-10989 para 75.
- 79.
Arsenal Football Club Plc v Reed (No.2) [2002] EWHC 2695 (Ch) and on appeal Arsenal Football Club Plc v Reed (No.2) [2003] EWCA Civ 96.
- 80.
Van Cleynenbreugel (2014), p. 274.
- 81.
Case C-439/08 Vlaamse federatie van verenigingen van Brood- en Banketbakkers, Ijsbereiders en Chocoladebewerkers [2010] ECR I-12471, para 58.
- 82.
Note: The broad supra-national definition of ‘court’ is used. There are certain conditions that should be fulfilled in order for a particular body to be considered a ‘court or tribunal’ for the purposes of this procedure (Case C-54/96 Dorsch Conult Ingenieurgesellschaft v Bundesbaugesellschaft Berlin [1997] ECR I-4983): the body is established by law; it must be permanent; its jurisdiction should be compulsory; its procedure should be inter partes; it must apply rules of law; and finally it must be independent recognition).
- 83.
Davies (2012), p. 79.
- 84.
As established by Case C-224/01 Gerhard Kobler v Austria [2003] ECR I-10239.
- 85.
Kornezov (2016), p. 1317.
- 86.
Weiler (1981), pp. 267–306.
- 87.
Tridimas and Tridimas (2004), p. 135.
- 88.
Nyikkos (2006), pp. 527–550.
- 89.
Rodger (2014).
- 90.
Most notably in the context of Allianz Hungaria C-32/11, ECLI:EU:C:2013:160. For further reading, see Kovacs and Varju (2014). Yet, it is largely debatable whether the court provided any clarity in this case, as it seems to blur the lines between ‘by object’ and ‘by effect’ restrictions under Article 101 TFEU. Nagy (2013).
- 91.
Case C-74/14 Eturas and Others, ECLI:EU:C:2016:42.
- 92.
In this case, the CJEU had the opportunity to provide the guidance regarding decentralised enforcement of EU competition law under Reg 1/2003. Case C-375/09 Tele 2 Polska, ECLI:EU:C:2011:270. The Polish Supreme Court eagerly entered into dialogue with the CJEU via the preliminary ruling procedure. Bernatt (2019).
- 93.
Article 15(3) of Regulation 1/2003.
- 94.
Örücü and Nelken (2007).
- 95.
While further subgrouping is also possible, for instance, Czech Republic, Hungary, Poland and Slovakia are addressed as the Visegrád states, whereas Estonia, Latvia, and Lithuania are known as the Baltic states, this is not essential for the purpose of this book.
- 96.
They were incorporated by force to the Soviet Union in August 1940 and were part of the so known 15 Soviet Republics.
- 97.
Martyniszyn and Bernatt (2019).
- 98.
Bulgaria’s socialist republic was known as the People’s Republic of Bulgaria.
- 99.
Örücü (2000).
- 100.
Welfens (1992).
- 101.
Milgrom and Roberts (1992), pp. 15–16.
- 102.
- 103.
- 104.
- 105.
Fox (1997).
- 106.
Scruton (1991), p. 8.
- 107.
These countries underwent massive reforms including restructuring the whole legal, economic and political systems in their preparation for the membership into the EU.
- 108.
Potentially, it could still be applicable given that private enforcement mainly occurs due to follow-on actions, which are not possible without undergoing a procedure of public enforcement.
- 109.
Commission Staff Working Document ‘Enhancing competition enforcement by the Member States’ competition authorities: institutional and procedural issues’, Accompanying the document, Communication From The Commission To The European Parliament And The Council Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives SWD(2014) 231/2, at p. 13.
- 110.
Note: The introduction of the Euro is regarded as one of the elements to show integration. By no means, this is only one indicator. Given that the EU integration falls outside the scope of this research, no further discussion will be provided. Apart from UK (which will leave the EU soon) and Denmark, which has a permanent exemption from adopting the euro, all EU countries are legally obliged to join the single currency once they meet all the convergence criteria.
- 111.
Malinauskaite (2016).
- 112.
Andenas et al. (2011).
- 113.
Some scholars, including Cseres, refer to the concept of ‘europeanization’, which is understood as ‘the reorientation or reshaping of politics in the domestic arena in ways that reflect policies, practices or preferences advanced through the EU system of governance’. Cseres (2010a), pp. 145–182.
- 114.
Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Explanatory memorandum, SWD(2013) 203 final, p. 10. Recital 9 of Directive 2014/104/EU.
- 115.
Directive 2014/104/EU.
- 116.
See, for instance, Case C-217/04 UK v EP and Council (European Network and Information Security Agency (ENISA)) [2006] ECR I-3771, para 43.
- 117.
Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Explanatory memorandum, SWD(2013) 203 final, p. 10.
- 118.
Opinion of Advocate General Kokott, Case C-557/12 Kone AG and Others, 30 January 2014, para 88.
- 119.
Heath (2004), p. 46.
- 120.
- 121.
Kamba (1974), p. 501.
- 122.
Boodman (1991), p. 699.
- 123.
Andersen (2007), p. 7.
- 124.
Rosett (1992), p. 687.
- 125.
Ibid, p. 688.
- 126.
Diamond (1984), p. 45.
- 127.
Andersen (2007), p. 7.
- 128.
Article 9 of Regulation /2003.
- 129.
Also see, Van Hoecke (2000), p. 3.
- 130.
Directive 2014/104/EU.
- 131.
Directive (EU) 2019/1.
- 132.
Directive 2014/104/EU.
- 133.
Directive (EU) 2019/1.
- 134.
Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration ECLI:EU:C:1963:1.
- 135.
Case 6/64 Costa v ENEL [1964] ECR.
- 136.
Case 127/73 BRT v SABAM [1974] ECR p. 51, para 16.
- 137.
Except, Article 101(3) TFEU, which was in a sole domain of the European Commission until Regulation 1/2003 came into force.
- 138.
Article 5 of TEU.
- 139.
Article 5(2) TEU.
- 140.
Articles 2(2) and 4 TFEU.
- 141.
Article 4 TEU.
- 142.
Craig (2010), p. 160.
- 143.
Article 19(1) TEU provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.
- 144.
Article 47 of the European Union Charter of Fundamental Rights provides that “[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”
- 145.
The Article does not provide the consequences for a failure to provide effective legal protection of EU rights. Potentially inadequacy of national law may lead to infringement actions against the Member States. Arnull (2011), p. 68.
- 146.
Originally the Council’s decision had to be made by means of a unanimous vote. However, because these provisions were not adopted within a period of 3 years after the date of the entry into force of the then EEC Treaty, they were to be laid down by the Council acting by means of a qualified majority vote.
- 147.
For further discussion on the subject, see Ehlermann (2000), p. 537.
- 148.
Directive 2014/104/EU and Directive (EU) 1/2019 were based on the dual legal basis of Articles 103 and 114 TFEU.
- 149.
Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Explanatory memorandum, SWD(2013) 203 final, p. 10.
- 150.
Recital 8, Proposal for a Directive Of The European Parliament And Of The Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, COM(2017) 142 final.
- 151.
Although former Article 3(1)(g) of the EC Treaty, which provided that ‘a system ensuring that competition in the internal market is not distorted’ was removed by the Treaty of Lisbon, Protocol (No. 27) ‘Internal Market and Competition’ restores this link.
- 152.
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights [2004] OJ L195.
- 153.
Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours [1990] OJ L158, as amended by Directive (EU) 2015/2302.
- 154.
Council Directive 89/665/EEC, Council Directive 92/13/EEC, as amended.
- 155.
The Tobacco advertising case (C-376/98, para 84 and C-491/01, paras 60-1).
- 156.
Article 5(3) TEU. Also see, the Protocol on the application of the principles of subsidiarity and proportionality, which defines the implementation of the principle of subsidiarity. The Treaty of Lisbon has considerably strengthened the principle of subsidiarity by introducing several control mechanisms in order to monitor its application. Before proposing legislative acts, the Commission must prepare a Green Paper. Green Papers consist of wide-ranging consultations. They enable the Commission to collect opinions from national and local institutions and from civil society on the desirability of a legislative proposal, in particular in respect of the principle of subsidiarity. The Protocol also adds an obligation for the Commission to accompany draft legislative acts with a statement demonstrating compliance with the principles of subsidiarity and proportionality. The Treaty of Lisbon innovates by associating national Parliaments closely with the monitoring of the principle of subsidiarity. National Parliaments now exercise twofold monitoring: they have a right to object when legislation is drafted. They can, thus, dismiss a legislative proposal before the Commission if they consider that the principle of subsidiarity has not been observed; through their Member State, they may contest a legislative act before the CJEU if they consider that the principle of subsidiarity has not been observed. The Treaty of Lisbon also associates the Committee of the Regions with the monitoring of the principle of subsidiarity. In the same way as national Parliaments, the Committee may also contest, before the CJEU, a legislative act that does not comply with the principle of subsidiarity.
- 157.
Goldoni (2014), p. 106.
- 158.
Craig (2004), pp. 343–344.
- 159.
Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, Article 7(3).
- 160.
Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, Explanatory memorandum, SWD(2013) 203 final, para 3.2.
- 161.
Ibid, Explanatory memorandum, at para 3.3. Recital 76 of the Directive (EU) 1/2019.
- 162.
Craig (2012), p. 396.
- 163.
Biondi (2012), p. 212.
- 164.
Craig (2012), p. 592.
- 165.
Case 280/84 Commission v Germany [1987] ECR 3097.
- 166.
Portuese (2013), p. 631.
- 167.
Mattei (1994), pp. 3–19.
- 168.
Frey and Eichenberger (1996), pp. 335–349.
- 169.
Tiebout (1956), pp. 416–24.
- 170.
The prediction has a normative implication for legal and political theory: just as price competition disciplines producers of private goods for the benefit of consumers, so regulatory competition promises to discipline government for the benefit of taxpaying citizens. Even though the original study applied to the production of public goods by state and local governments, lawyers in the United States have applied it across an expanse of subject matters, from corporate law and banking to environmental law and trade law. For further reading, see Geradin and McCahery (2005). The literature on the topic of regulatory competition and its benefits and adverse effects, especially in relation to company law is extensive. For example, see Bebchuk (1992), p. 1435; Roe (2003), p. 588; Romano (1985), p. 225; Kahan and Kamar (2002), p. 679; Deakin (2000).
- 171.
E.g. There must be a sufficiently large number of legislators; there must be perfect mobility of production factors (capital, know-how) and no restraints on the labour markets which prohibit such mobility; there must be no information deficiencies; there must be no inter-state or inter-regional externalities; there must be no scale economies or transaction cost savings which require large jurisdictions; legislators must maximize their size in a competitive way.
- 172.
- 173.
Van Boom (2011), p. 444.
- 174.
Cauffman and Philipsen (2014).
- 175.
Note: a debatable concept as discussed in Sect. 3.3. Yet, this notion is used in Regulation 1/2003 and other supporting EU documents.
- 176.
Directive 2014/104/EU.
- 177.
Van Den Bergh (1994), para. 206.
- 178.
Cseres (2010b), pp. 7–44.
- 179.
- 180.
- 181.
Scott (2000), p. 204.
- 182.
Cauffman and Philipsen (2014).
- 183.
- 184.
Wagner (2005).
- 185.
- 186.
Regulation No 864/2007, of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). Cauffman and Philipsen (2014).
- 187.
Deakin and Wilkinson (1994), pp. 289–310.
- 188.
Deakin (2000).
- 189.
Woolcock (1996), p. 299.
- 190.
Van den Bergh (2002), pp. 27–49.
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Malinauskaite, J. (2020). EU Conceptual Framework of Harmonisation: Setting the Scene. In: Harmonisation of EU Competition Law Enforcement. Springer, Cham. https://doi.org/10.1007/978-3-030-30233-7_3
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