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.

How Social is European Integration? Bruges European Economic Policy (BEEP) Briefing 18/2007

The social dimension of the internal market or of the EU more generally has recently been under quite fundamental attack. Calls for 'Europe' to be 'more social' have been heard repeatedly. Witness the polarized debates about the services directive, the anxieties concerning several ECJ cases about what limitations of the free movement of workers (posted or not) are justified or the assertion of a 'neo-liberal agenda' in Brussels disregarding or eroding the social dimension. This BEEP Briefing paper takes an analytical approach to these issues and to the possible 'framing' involved. Such an analysis reveals a very different picture than the negative framing in such debates has it: there is nothing particular 'a-social' about the internal market or the EU at large. This overall conclusion is reached following five steps. First, several 'preliminaries' of the social dimension have to be kept in mind (including the two-tier regulatory & expenditure structure of what is too loosely called 'social Europe' ) and this is only too rarely done or at best in partial, hence misleading, ways. Second, the social acquis at EU and Member States' levels is spelled out, broken down into four aspects (social spending; labour market regulation; industrial relations; free movements & establishment). Assessing the EU acquis in the light of the two levels of powers shows clearly that it is the combination of the two levels which matters. Member States and e.g. labour unions do not want the EU level to become deeply involved ( with some exceptions) and the actual impact of free movement and establishment is throttled by far-reaching host-country control and the requirement of a 'high level of social protection' in the treaty. Third, six anxieties about the social dimension of the internal market are discussed and few arguments are found which are attributable to the EU or its weakening social dimension. Fourth, another six anxieties are discussed emerging from the socio-economic context of the social dimension of the EU at large. The analysis demonstrates that, even if these anxieties ought to be taken serious, the EU is hardly or not the culprit. Fifth, all this is complemented by a number of other facts or arguments strengthening the case that the EU social dimension is fine.

EU Social Policy: Developments in the field and insights for the study of social policy. ACES Cases No. 2012.1

This paper focuses on the key features of EU social policy and the way it has been interpreted and seeks to identify new directions for study. EU social policy is considered along two main dimensions: its content and hallmark features and the main approaches to conceptualizing and theorizing it. Rather than the classic negative depiction of EU social policy, this piece suggests that it is more significant than usually allowed, not least because the empirical and theoretical lenses which have been applied to it were developed for other purposes. The implication is that developments in EU social policy are often overlooked, not least in how the EU has carved out a role for itself by constantly framing and reframing discourses relevant to social policy and social problems in an attempt to both influence how social actors at all levels of governance approach policy and secure their acceptance of its role in social policy. Therefore analyzing EU social policy outside of the traditional frames reveals interesting and significant developments especially around innovation in social policy and the attempt to legitimate the EU as a social policy actor.

Public Procurement in the Transatlantic Trade and Investment Partnership Negotiations. Paper No. 2 in the CEPS-CTR project "TTIP in the Balance" and CEPS Special Report No. 100/February 2015

For more than 20 years, the United States and the European Union have engaged in often-contentious negotiations over access to government procurement. The EU is dissatisfied with the level of procurement that the US has opened under the WTO Government Procurement Agreement and, as a consequence, it does not give the US its most comprehensive coverage. The US has been constrained in responding to the EU’s requests for greater access, especially to state procurement, by both its federal structure of government and by domestic purchasing requirements. At the current time, neither party has proposed a way to break the impasse. This paper reviews the current state of affairs between the US and the EU on government procurement, examining the procurement that they open to one another and the procurement that they withhold. It then proposes a strategy for the two sides to use the TTIP negotiations to move forward. This strategy includes both steps to expand their current commitments in the TTIP, as well as to develop a longer-term approach by making the TTIP a ‘living agreement’. This strategy suggests that the EU and the US could find a way to expand their access to government procurement contracts and at least partially defuse the issue.

Beyond Cooperation and Competition: What Kind of Federalism for EU Social Policy? CES Germany & Europe Working Papers, No. 00.7, December 2000

The EU has become a loose kind ofsocial federation, a fact that has not been adequately taken into account due to the peculiarities ofthe Maastricht strategy for monetary integration. Yet, a new approach to the economic theory offederalism is required ifone wants to analyze the most pressing issues ofEU social policy. The social insurance view of redistribution and stabilization provides for such an approach. This view supports laboratory federalism in which it is the role ofthe EU Commission to contain systems competition in order to preserve "stability in diversity." The role ofthe EU level would be to promote horizontal and vertical learning processes and to make sure that stability concerns ofthe EU are taken seriously by member countries' governments. The minimum requirements framework for social policy that the EU Commission has adopted must be taken as a point of departure, even though it is a less than satisfactory approach from this point of view. Laboratory standardization, in contrast, would not set specific minimum requirements but meta-standards that protect systems functions and safeguard against systems failures.

Citizenship in the discourse of Egyptian political parties. EUSpring Working Paper No. 6, June 2015 [also Citizenship Report no. 3]

The concept of citizenship is one of the most complicated in political and social sciences. Its long process of historical development makes dealing with it particularly complicated. Citizenship is by nature a multi-dimensional concept: there is a legal citizenship, referring first to the equal legal status of individuals, for instance the equality between men and women. Legal citizenship also refers to a political dimension, the right to start and/or join political parties, or political participation more broadly. Thirdly, it has a religious dimension relating to the right of all religious groups to equally and freely practice their religious customs and rituals. Finally, legal citizenship possesses a socio-economic dimension related to the non-marginalisation of different social categories, for instance women. All of these dimensions, far from being purely objects of legal texts and codifications, are emerging as an arena of political struggle within the Egyptian society. Citizenship as a concept has its roots in European history and, more specifically, the emergence of the nation state in Europe and the ensuing economic and social developments in these societies. These social developments and the rise of the nation state have worked in parallel, fostering the notion of an individual citizen bestowed with rights and obligations. This gradual interaction was very different from what happened in the context of the Arab world. The emerging of the nation state in Egypt was an outcome of modernisation efforts from the top-down; it coercively redesigned the social structure, by eliminating or weakening some social classes in favour of others. These efforts have had an impact on the state-society relation at least in two respects. First, on the overlapping relation between some social classes and the state, and second, on the ability of some social groups to self-organise, define and raise their demands. This study identifies how different political parties in Egypt envision the multi-dimensional concept of citizenship. We focus on the following elements: Nature of the state (identity, nature of the regime) Liberties and rights (election laws, political party laws, etc.) Right to gather and organise (syndicates, associations, etc.) Freedom of expression and speech (right to protest, sit in, strike, etc.) Public and individual liberties (freedom of belief, personal issues, etc.) Rights of marginalised groups (women, minorities, etc.)

TTIP and Public Procurement: Going beyond the tip of the iceberg. CEPS Policy Brief No. 339, March 2016

Trade negotiations involving international public procurement rules are on the rise, stimulating a growing interest in having a clear picture of the economic stakes involved, including the current level of international openness. A recent paper published by the European Centre for International Political Economy (Messerlin, 2016) made an attempt to provide a range of estimates for the EU and the US and found relatively low rates of import penetration. This analytical approach, however, looked only at the ‘tip of the procurement iceberg’, as the data used covered primarily only one modality of international procurement (direct cross-border), which is not the main avenue for international government procurement. Other modalities, such as procurement from foreign subsidiaries established in Europe, account for much more. Such an approach therefore ignores the main modalities through which foreign firms win EU contracts. Once these other main procurement modalities are taken into account, EU openness in procurement is much higher. Comparable data across all modalities do not yet exist for the US, but we do have clear evidence that the US has introduced the largest number of protectionist procurement measures since 2008 affecting all modalities for international procurement. Against this background, this Policy Brief makes four basic points: i. Public procurement is a key area of trade negotiations, and TTIP is no exception to this rule. ii. The existing levels of openness in procurement markets need to be assessed across all three main procurement modalities and not based only on direct cross-border procurement, which is not the main procurement avenue. According to this comprehensive metric, the EU market already has a high foreign participation rate, including by US companies. iii. Unfortunately, similar data do not exist for the US market. But there is growing evidence of discriminatory measures introduced in recent years, which impede the ability of EU firms to compete on a level-playing field in US procurement markets. iv. The importance of procurement as a key negotiating area requires better data and a greater analytical engagement.