The UN General Assembly Resolution on Access to Legal Aid in Criminal Proceedings - an Example for Europe. IES Policy Brief Issue 2013/04 • May 2013

Summary. The EU’s attempts to adopt an EU-wide instrument on the right to access to legal aid in criminal proceedings have not been successful so far. The important issue was originally part of Measure C of the Roadmap for criminal procedural rights,1 but due to political difficulties legal aid was dropped from the agenda. However, on a different plane agreement was reached on this topic as the United Nations General Assembly (UNGA) has adopted the world’s first international instrument dedicated to access to legal aid in December 2012.2 This policy brief argues that the EU should carry on in the ‘spirit’ of these recent developments and adopt a directive providing suspects and defendants with access to legal aid. 1 Council Resolution of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ C 295/1, 4 December 2009; hereafter will be referred to this Council Resolution as the ‘Roadmap’; for further information see M. Jimeno-Bulnes, ‘The EU Roadmap for Strengthening Procedural Rights of Suspected or Accused Persons in Criminal Proceedings’, 4 EUCrim (2009), 157-161. 2 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, A/Res/67/187, 20 December 2012; from here on will be referred to this as the ‘Resolution’.

Fiscal rules: timing is everything. Bruegel Policy Brief 2012/02, September 2012

The strengthening of the European Union’s fiscal rules with the approval of the so-called ‘six-pack’, and the parallel worsening of economic conditions in Europe, re-opened the debate about the relationship between fiscal discipline and growth. Influential voices have argued against the EU’s perceived obsession with fiscal discipline, which risks being self-defeating in bad times. However, EU fiscal rules are not as rigid as commonly thought, but represent a sophisticated system of surveillance and ex-post control that provides sufficient room for manoeuvre under exceptional circumstances.

European antitrust control and standard setting. Bruegel Working Paper 2013/01, February 2012

Standards reduce production costs and increase products’ value to consumers. Standards however entail risks of anti-competitive abuse. After the adoption of a standard, the chosen technology normally lacks credible substitutes. The owner of the patented technology might thus have additional market power relative to locked-in licensees, and might exploit this power to charge higher access rates. In the economic literature this phenomenon is referred to as ‘hold-up’. To reduce the risk of hold-up, standard-setting organisations often require patent holders to disclose their standard-essential patents before the adoption of the standard and to commit to license on fair, reasonable and non-discriminatory (FRAND) terms. The European Commission normally investigates unfair pricing abuse in a standard-setting context if a patent holder who committed to FRAND ex-ante is suspected not to abide to it ex-post. However, this approach risks ignoring a number of potential abuses which are likely harmful for welfare. That can happen if, for example, ex-post a licensee is able to impose excessively low access rates (‘reverse hold-up’) or if a patent holder acquires additional market power thanks to the standard but its essential patents are not encumbered by FRAND commitments, for instance because the patent holder did not directly participate to the standard setting process and was therefore not required by the standard-setting organisations to commit to FRAND ex-ante. A consistent policy by the Commission capable of tackling all sources of harm should be enforced regardless of whether FRAND commitments are given. Antitrust enforcement should hinge on the identification of a distortion in the bargaining process around technology access prices, which is determined by the adoption of the standard and is not attributable to pro-competitive merits of any of the involved players.

Europe's growth problem (and what to do about it). Bruegel Policy Brief 2013/03, April 2013

The issue: The European Union's pre-crisis growth performance was disappointing enough, but the performance has been even more dismal since the onset of the crisis. Weak growth is undermining private and public deleveraging,and is fuelling continued banking fragility. Persistently high unemployment is eroding skills, discouraging labour market participation and undermining the EU’s long-term growth potential. Low overall growth is making it much tougher for the hard-hit economies in southern Europe to recover competitiveness and regain control of their public finances. Stagnation would reduce the attractiveness of Europe for investment. Under these conditions, Europe's social models are bound to prove unsustainable. Policy Challenge: The European Union's weak long-term growth potential and unsatisfactory recovery from the crisis represent a major policy challenge. Over and above the structural reform agenda, which vitally important, bold policy action is needed. The priority is to get bank credit going. Banking problems need to be assessed properly and bank resolution and recapitalisation should be pursued. Second, fostering the reallocation of factors to the most productive firms and the sectors that contribute to aggregate rebalancing is vital. Addressing intra-euro area competitiveness divergence is essential to support growth in southern Europe. Third, the speed of fiscal adjustment needs to be appropriate and EU funds should be front loaded to countries in deep recession, while the European Investment Bank should increase investment.

Macedonia - A country in crisis. CEPS Policy Brief No. 299, 13 September 2013

Macedonia is a country in deep trouble. There is a climate of mistrust between all the political parties; intolerance of minority groups is increasing and fear is also generated by the all-pervasive control of the main governing party. In 2009 the European Commission recommended that a date be set for accession negotiations to start, but since then the country's efforts to join the EU (and NATO) have been blocked. Author Erwan Fouéré sets out ten clear recommendations for both Macedonia and the EU on the way forward.

Reviewing the EU's market abuse rules. ECMI Policy Brief No. 19, 27 February 2012

Updated May 2012 and reposted: In 2011, an EU legislative package on market abuse was proposed, which comprises two sets of documents: 1) a draft Regulation that will largely replace the existing Market Abuse Directive (MAD) and the level 2 measures; and a new Directive dealing with criminal sanctions. Market abuse rules are needed to ensure market integrity and investor confidence, and to allow companies to raise capital and contribute to economic growth, thereby increasing employment. This ECMI Policy Brief argues that rules on market abuse should be technically well designed, proportionate and crystal clear, but also subject to more efficient and harmonised supervision than before. The paper focuses particularly on the draft Regulation. The use of a regulation is welcome, as (in integrated financial markets) abuses should be regulated in a harmonised manner by member states, which has not always been the case, as the 2007 report from the European Securities Markets Expert (ESME) Group extensively demonstrated. At the same time, this paper criticises some of the provisions contained in the draft Regulation, notably the new notion of inside information not to abuse (Art. 6(e)) and the unchanged definition of inside information for listed companies to disclose, and it proposes new definitions. The extension of disclosure obligations to issuers whose shares are traded on demand only on ‘listing’ multilateral trading facilities is also widely criticised. Other comments deal with the proposed rules on managers’ transactions, insiders’ lists and accepted market practices.

European Criminal Law and General Principles of Union Law. Research Papers in Law, 5/2005

From the Introduction. The European Court of Justice, partly followed in this by the European legislator, has regulated Community law and policy through a set of general principles of law. For the Community legal order in the first pillar, general legal principles have developed from functional policy areas such as the internal market, the customs union, the monetary union, the common agricultural policy, the European competition policy, etc., which are of great importance for the quality and legitimacy of Community law. The principles in question are not so much general legal principles of an institutional character, such as the priority of Community law, direct effect or Community loyalty, but rather principles of law which shape the fundamental rights and basic rights of the citizen. I refer to the principle of legality, of nulla poena, the inviolability of the home, the nemo tenetur principle, due process, the rights of the defence, etc. Many of these legal principles have been elevated to primary Community law status by the European Court of Justice, often as a result of preliminary questions. Nevertheless, a considerable number of them have also been elaborated in the context of contentious proceedings before the Court of Justice, such as in the framework of European competition law and European public servants law.

Exploitative Abuses: Which Competition Policy, Which Public Policy? Research Papers in Law, 2/2007

As the final session of the day, my aim in this paper is to briefly outline the nature of exploitative abuses before turning to the question of the relationship between competition law and intellectual property law in the context of what Teubner calls the regulatory trilemma and from that draw a two-fold conclusion. First, the demands on law from the social phenomenon of markets are more acute when those demands raise issues across the different law domains of IP and competition. Second, where IP law and competition meet, the aim should be for both domains to internalise the values of the other. This however can only happen to the extent but only to the extent that there can be what Collins1 calls productive disintegration. Finally, in the specific context of exploitative abuses the overlap between IP law and competition law arises primarily in relation to claims of excessive pricing in licensing arrangements. Such claims could form the basis of a private action2 or can be made in the context of compulsory dealing decisions such as Microsoft.3 The involvement of competition agencies in pricing decisions goes to the heart of concerns about the nature of competition law and the role of competition agencies and highlights the need for the law to indirectly control rather than inappropriately attempt to directly control markets.

The Dragon awakes: Is Chinese competition policy a cause for concern? Bruegel Policy Contribution 2013/14, 22 October 2013

China’s Anti-Monopoly Law, adopted in 2007, is largely compatible with antitrust law in the European Union, the United States and other jurisdictions. Enforcement activity by the Chinese authorities is also approaching the level seen in the EU. The Chinese law, however, leaves significant room for the use of competition policy to further industrial policy objectives. The data presented in this Policy Contribution indicates that Chinese merger control might have asymmetrically targeted foreign companies, while favouring domestic companies. However, there are no indications that antitrust control has been used to favour domestic players. A strategy to achieve convergence in global antitrust enforcement should include support for Chinese competition authorities to develop the institutional tools they already have, and to improve merger control by promoting the adoption of a consumer-oriented test and enforcing M&A notification rules.

The Criminalisation of Migration in Europe: A State-of-the-Art of the Academic Literature and Research. CEPS Liberty and Security in Europe No. 61, October 2013

In the last 30 years, a clear trend has come to define modern immigration law and policy. A set of seemingly disparate developments concerning the constant reinforcement of border controls, tightening of conditions of entry, expanding capacities for detention and deportation and the proliferation of criminal sanctions for migration offences, accompanied by an anxiety on the part of the press, public and political establishment regarding migrant criminality can now be seen to form a definitive shift in the European Union towards the so-called ‘criminalisation of migration’. This paper aims to provide an overview of the ‘state-of-the-art’ in the academic literature and EU research on criminalisation of migration in Europe. It analyses three key manifestations of the so-called ‘crimmigration’ trend: discursive criminalisation; the use of criminal law for migration management; and immigrant detention, focusing both on developments in domestic legislation of EU member states but also the increasing conflation of mobility, crime and security which has accompanied EU integration. By identifying the trends, synergies and gaps in the scholarly approaches dealing with the criminalisation of migration, the paper seeks to provide a framework for on-going research under Work Package 8 of the FIDUCIA project.

Le contrôle européen des concentrations et les leçons à tirer de la crise financière et économique = European merger control and the lessons of the financial and economic crisis. Research Papers in Law, 06/2013

No abstract.

Social Benefits and Migration: A Contested Relationship and Policy Challenge in the EU. CEPS Paperbacks. September 2013

Following the financial crisis that commenced in 2008, the relationship between migration and social benefits has become increasingly contested in a number of large EU member states. The Eastern expansion of the EU in 2004 and 2007 has added a new dimension to the relationship. Concerns have spread across a number of member states about the 'costs' and 'financial burdens' of migration and intra-EU mobility and there have been calls for restrictions of existing EU rights and freedoms in the areas of EU free movement, social security coordination, asylum and migration laws.

The global race for talent: Europe's migration challenge. Bruegel Policy Brief 2014/02, March 2014

In an ageing world with demographic and economic imbalances, the number of international migrants is likely to rise during the twenty-first century. The geography of migration flows is changing, however. Mobile people will be increasingly attracted by faster-growing economies. Therefore, some traditional destinations in western Europe will face stronger competition for skilled labour-not least from countries like China where the working-age population will shrink after 2020. At the same time, the sentiment in many European receiving societies is turning against migration and intra-European Union mobility.