Regulation on ‘cross-border portability’ of online content services: Roaming for Netflix or the end of copyright territoriality? CEPS Commentary, 15 February 2016

In a communication to the Parliament and the Council entitled “Towards a modern, more European copyright framework” and dated 9 December 2015,1 the European Commission confirmed its intention to progressively remove the main obstacles to the functioning of the Digital Single Market for copyrighted works. The first step of this long-term plan, which was first announced in Juncker’s Political Guidelines2 and the Communication on “A Digital Single Market strategy for Europe”,3 is a proposal for a regulation aimed at ensuring the so-called ‘cross-border portability’ of online services giving access to content such as music, games, films and sporting events.4 In a nutshell, the proposed regulation seeks to enable consumers with legal access to such online content services in their country of residence to use the same services also when they are in another member state for a limited period of time. On the one hand, this legislative proposal has the full potential to resolve the (limited) issue of portability, which stems from the national dimension of copyright and the persisting territorial licensing and distribution of copyright content.5 On the other hand, as this commentary shows, the ambiguity of certain important provisions in the proposed regulation might affect its scope and effectiveness and contribute to the erosion of the principle of copyright territoriality.

Meeting Competition: Why it is not an Abuse under Article 82. Research Papers in Law, 3/2004.

Introduction. Meeting competition occurs when an undertaking lowers its prices in response to the entry of a competitor. Despite accepting that meeting competition can be compatible with Article 82, the Commission2 and the Court of justice3 have repeatedly condemned the practice due to the modalities of implementation or “particular circumstances”.4 However, existing precedent on the subject remains obscurely reasoned and contradictory, such that it is at the present time impossible to give clear advice to undertakings on the circumstances in which meeting competition is compatible with Article 82. Not only is such legal uncertainty in itself damaging but, in so far as it discourages meeting competition, it appears to us to be harmful to competition. As concerns the latter point, it will be seen that some of the most powerful arguments against prohibiting meeting competition are based on the counterproductive nature of the remedies. The present article does not, however, aim to propose a simple solution to distinguish abusive and non-abusive meeting competition.5 Nor does the article aim to give a comprehensive overview of the existing case law in this area.6 Instead, it takes a more economic approach and aims to lay out in a (brief but) systematic fashion the competitive concerns that might potentially be raised by the practice of meeting competition and in doing so to try to identify the main flaws in the Court and Commission’s approach.

Why trying to keep the Germans close on EU competences is risky for Britain. EPIN Commentary No. 13, 3 December 2013

A new Commentary published by the European Policy Institutes Network (EPIN) offers an interesting piece of advice to the UK if it is to succeed in winning over Germany on EU reform. The author, Almut Möller, asserts that the UK needs to understand how Germany’s federal system, with its intricate balance of competences between the various levels, is an integral part of modern Germany and key to the country’s thinking on Europe.

Abolishing Oil Indexation in Gas Contracts: Is it the cure-all? CEPS Commentaries, 3 March 2014

Recently, the EU energy debate has been dominated by the discussion on energy prices and the competitiveness of the European industry. According to the latest estimates of the International Energy Agency, gas prices in the US are one-quarter of those in Europe. Moreover, prices of imported gas vary across the EU member states. Some EU policy-makers hope that the completion of the internal energy market and the transition to hub-based pricing will solve these discrepancies. Julian Wieczorkiewicz asks in this Commentary whether the abolition of oil-indexation will constitute a cure-all for the above-mentioned problems.

Why Schumpeter's Creative Destruction? Everything has changed, so it is the same: Towards "Mode 3". ACES Working Paper (Report) No. 5, 2007

Of what value is examining creative destruction and diffusion theories that Schumpeter introduced to the world? A variety of factors causes economic changes, but he argued that entrepreneurial innovation was central. Today, even those who create new products and processes hardly know who Schumpeter was, or what he did. It is difficult to believe that his contributions are not more popularly recognized today. Schumpeter's theories are as valuable and important within the contemporary environment as they were when he wrote about them over four score or seventy years ago.

Is Regulatory Convergence Efficient? CES Germany & Europe Working Papers, No. 02.3, May 1992

One of the important themes in the new institutionalism is the convergence of market regulations in a world with three powerful clusters of countries (Western Europe, North America, and East Asia) on a small number of regimes, like disorganized capitalism, free market capitalism, and coordinated market capitalism. This paper examines the political-economic theory of regulatory convergence. It reconstructs and compares three welfarist approaches: the optimal regulatory regime (Tinbergen), the rule of constitutional law (Buchanan), and regulatory rivalry (Hayek). The paper concludes that most plausible results of convergence theory are completely opposite to the expressed political intentions of the theorists. Tinbergen's theory predicts neoliberalism, not social democracy. The theories of Buchanan and Hayek predict respectively a consensual or spontaneous formation of corporatist regulations, not the return of classical constitutionalism or liberalism. The paper summons new institutionalists to repair the weak scientific elements of convergence theory and to make a distinction between the ideological origins of this theory and its unintended ideological consequences.

The Greek economy is unlikely to benefit from further devaluation. CEPS Commentary, 3 July 2015

Martin Wolf offers an excellent analysis of how the Greek voter may feel about Sunday’s referendum.1 There is no good option: either be engulfed in the chaos following the rejection of the programme, exit and collapse of the economy or accept another programme.