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.

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.

Public and Private Regulation: Mapping the Labyrinth. CEPS Working Document No. 370, October 2012

Private governance is currently being evoked as a viable solution to many public policy goals. However, in some circumstances it has shown to produce more harm than good, and even disastrous consequences as in the case of the financial crisis that is raging in most advanced economies. Although the current track record of private regulatory schemes is mixed, policy guidance documents around the world still require that policy-makers give priority to self- and co-regulation, with little or no additional guidance being given to policymakers to devise when, and under what circumstances, these solutions can prove viable from a public policy perspective. With an array of examples from several policy fields, this paper approaches regulation as a public-private collaborative form and attempts to identify possible policy tools to be applied by public policy-makers to efficiently and effectively approach private governance as a solution, rather than a problem. We propose a six-step theoretical framework and argue that IA techniques should: i) define an integrated framework including both the possibility that private regulation can be used as an alternative or as a complement to public legislation; ii) involve private parties in public IAs in order to define the best strategy or strategies that would ensure achievement of the regulatory objectives; and iii) contemplate the deployment of indicators related to governance and activities of the regulators and their ability to coordinate and solve disputes with other regulators.

Private long-term investment in uncertain times. Bruegel Policy Contribution 2012/23, December 2012

The economic and financial crisis in Europe is affecting the financing of long-term infrastructure investment. There are multiple clearly identifiable channels: reduced demand for long-term investment, a tightening prudential framework for lending, upward adjustment of risk perception, complex transition of the financial system, and increasing macroeconomic, sovereign and regulatory risk. Some of the identified channels are potentially dangerous spillovers from the crisis that entail the risk of a downward spiral (eg increasing regulatory risk), while others are efficient market responses (eg reduced investment demand, correction of pricing of risk). Consequently, public policy instruments should not address the accessibility of long-term finance per se, but should explicitly target the critical channels.

The impact of demographic change and its challenges for the workforce in the European public sectors. Three priority areas to invest in future HRM. EIPA Working Paper 2012/W/01

European public sectors are particularly affected by the demographic challenge and an ageing and shrinking workforce. According to OECD statistics, over 30% of public employees of central government in 13 countries will leave during the next 15 years. Moreover, the public sector has as compared to the private sector to rely on a much older workforce, who will have to work longer in future. Against this background, European governments need to react and re-think major elements of current HR and organisational management in the public sector. Particularly the skills in age management should be improved in order to also maintain in future a highly productive, competent and efficient public sector and to ensure that public employees stay longer ‘employable’, ‘healthy’, ‘fit for the job’ and ‘up to the task’. The survey suggests some solutions by investing more in three priority areas in the field of HRM.

EU Policy on Climate Change Mitigation since Copenhagen and the Economic Crisis. CEPS Working Document No. 380, 5 March 2013

The EU has long assumed leadership in advancing domestic and international climate change policy. While pushing its partners in international negotiations, it has led the way in implementing a host of domestic measures, including a unilateral and legally binding target, an ambitious policy on renewable energy and a strategy for low-carbon technology deployment. The centrepiece of EU policy, however, has been the EU Emissions Trading System (ETS), a cap-and-trade programme launched in 2005. The ETS has been seen as a tool to ensure least-cost abatement, drive EU decarbonisation and develop a global carbon market. After an initial review and revision of the ETS, to come into force in 2013, there was a belief that the new ETS was ‘future-proof’, meaning able to cope with the temporary lack of a global agreement on climate change and individual countries’ emission ceilings. This confidence has been shattered by the simultaneous ‘failure’ of Copenhagen to deliver a clear prospect of a global (top-down) agreement and the economic crisis. The lack of prospects for national caps at the international level has led to a situation whereby many member states hesitate to pursue ambitious climate change policies. In the midst of this, the EU is assessing its options anew. A number of promising areas for international cooperation exist, all centred on the need to ‘raise the ambition level’ of GHG emission reductions, notably in aviation and maritime, short-lived climate pollutions, deforestation, industrial competitiveness and green growth. Public policy issues in the field of technology and its transfer will require more work to identify real areas for cooperation.

Public Procurement Law and Health care: From Theory to Practice. Research Paper in Law, 2/2010

From the Introduction. This contribution will focus on the core question if, how and to what extent the EU procurement rules and principles (may) affect the national health care systems. We start our analysis by summarizing the applicable EU public procurement legislation, principles and soft law and its exact scope in relation to health care. (section 2). Subsequently, we turn to the parties in a contract, subject to procurement rules in the field of health care, addressing both the definition of contracting authorities and relevant case law (section 3). This will then lead to an analysis of possible justifications for not holding a tender procedure in the field of health care (section 4). Finally, we illustrate the impact of EU public procurement rules on health care by analysing a Dutch case study, in which the question whether public hospitals in the Netherlands qualify as contracting authorities in terms of the Public Sector Directive stood central (section 5). Our conclusions will follow in section 6.

Why so few students do maths and science. CEPS Policy Brief No. 313, 10 January 2014

Policy-makers often fret about the low number of university graduates in the fields of science, technology, engineering and mathematics (STEM). Proposed solutions often focus on providing better information for students and parents about the employability or average wages of different fields to emphasise that STEM professions pay. This paper argues that, from a personal point of view, students are actually making rational decisions, if all benefits and costs are factored into the equation. The authors conclude, therefore, that public policy needs to change the incentives to induce students to enter these fields and not just provide information about them.

The Review of the Europe 2020 Strategy: From austerity to prosperity? CEPS Policy Brief No. 322, 28 October 2014

The future of Europe 2020 lies in its ability to become the protagonist of a new season in EU policy, in which countries can apply for more flexibility only if they can prove both structural reform and good governance, argues the author. By establishing a ‘new deal’ among member states, an improved Europe 2020 strategy can help Europe to complete its transition from austerity to prosperity. This Policy Brief makes the case for approaching the mid-term review of Europe 2020 on three different levels: i) the revision and update of the content of the Europe 2020 strategy, including its objectives, targets and major flagship initiatives; ii) the reform of the governance of the strategy; and iii) the repositioning of the strategy at the core of EU policy. The content of the strategy should be revised to include initiatives on infrastructure, the internal market and administrative capacity at all levels of government. The author sets out a number of policy recommendations for the European Commission and the member states to help realise these objectives.

DG CONNECT’s Stakeholder Engagement Strategy. IES Policy Brief Issue 2013/03 • April 2013

Summary. How do we ensure that public policy represents the interests of all, rather than a select few? How will we ensure it draws upon the best insights and talents of key stakeholders? The European Commission’s DG CONNECT recently announced the results of its Stakeholder Engagement Survey, which is designed to ‘provide empirical results and feedback about existing practices and signal gaps and challenges for action in the area of stakeholder engagement.’ (Directorate-General for Communications Networks, Content and Technology, Stakeholders Unit D4, 2013, p.4). The survey launched a new round of reflection on the Commission’s relations with its stakeholders by asking respondents to reflect on the way in which they interact with DG CONNECT. The strategic objective is to see how ICTs can be used in novel ways to enhance support for policymaking from stakeholders in the EU. The Stakeholder Engagement Survey makes a start at answering critical questions about use of ICT as a tool to build ‘smarter policy’ as part of DG CONNECT’s wider step toward defining a strategy for stakeholder engagement. This IES Policy Brief welcomes this current work-in-progress, and outlines some of the challenges that may await the European Commission as it seeks to exploit the full potential of ICT in stakeholder engagement. It provides an initial analysis of the results of this first Stakeholder Engagement Survey, and concludes that whilst many things have changed with regards to tools that policymakers can use to elicit input into policymaking, certain challenges have remained very much the same.

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.

European climate finance: securing the best return. Bruegel Policy Brief ISSUE 2015/03, 11 September 2015

Combating climate change is perhaps the most formidable public policy challenge of our times. Unmitigated climate change will be irreversible. It will place significant costs on future generations, and expose them to unexplored risks. To mitigate climate change, global coordination is indispensable. European Union citizens consider climate change a central problem. The EU and its member states have therefore put in place signficant and costly climate mitigation policies.