The EU essential facilities doctrine. Research Papers in Law, 6/2006

Introduction. The essential facilities doctrine may be seen as the ‘extra weight’ which is put onto the balance, in order to give precedence to the maintenance of competition over the complete contractual freedom of undertakings controlling an important and unique facility. The main purpose of the doctrine is to impose upon such ‘dominant’ undertakings the duty to negotiate and/or give access to the facility, against a reasonable fee, to other undertakings, which cannot pursue their own activity (and therefore will perish) without access to such a facility. This very simple description of the content of the doctrine underlines its limitations: through the imposition of a duty to negotiate or contractual obligations, the rule tends to compensate for the weaknesses of the competitive structure of a market, which are due to the existence of some essential facility. In other words, the doctrine does not by itself provide a definitive solution to the lack of competition, but tends to contractually maintain or even create some competition.1 The doctrine of essential facilities originates in the US antitrust case law of the Circuit and District Courts, but has never been officially acknowledged by the Supreme Court. It has been further developed and hotly debated by scholars in the US, both from a legal and from an economic viewpoint. In the EU, the essential facilities doctrine was openly introduced by the Commission during the early 1990s, but has received only limited and indirect support by the Court of First Instance (the CFI) and the European Court of Justice (the ECJ). It also indirectly inspired the legislation concerning the deregulation of traditional ‘natural’ monopolies. The judicial origin of the doctrine, combined with the hesitant application by the appeal courts, both in the US and the EU, cast uncertainty not only on the precise scope of the doctrine, but also on the issue of its very existence. These questions receive a particular light within the EU context, where the doctrine is called upon to play a different role from its US counterpart. In order to address the above issues, we will first pretend that an EU essential facility doctrine does indeed exist and we shall try to identify the scope and content thereof, through its main applications (Section 1). Subsequently, we will try to answer the question whether such a doctrine should exist at all in the EU (Section 2).

Discretion and Accountability: The ESMA Judgment and the Meroni Doctrine. Bruges European Economic Research (BEER) Papers 30/2014

This paper assesses the effectiveness of the Meroni doctrine in the light of the recent judgment in the ESMA case. The first part explains in detail the problem of delegation of powers in the EU from the perspective of the principal-agent theory and complements it with the analysis of the trade-off between different levels of independence and accountability of agencies. A simple economic model is developed to illustrated the relationship between the independence and accountability of an agency. It shows that it is the accountability mechanism that induces the agent to act, rather than the extent of his independence. The paper also explains the inter-temporal interactions between the principal and the agent on the basis of the incentives in place for the different players. The second part is devoted to analysis of the functioning of ESMA in the context of its delegated powers. After the presentation of main aspects of the regulatory framework establishing ESMA, the paper continuous with an analysis and interpretation of the discretionary powers of ESMA. The rather rigid position of the Court of Justice in relation to the Meroni doctrine seems to be unsuitable to delegation of complex regulatory tasks. This is particularly evident in the case of financial markets. Finally, the judgment does not examine in any detail whether and how the principals - i.e. the EU and Member States - are best able to evaluate the quality of ESMA decisions and regulations and whether there are different but more effective accountability mechanisms.

Bundeswehr 3.0: The political, military and social dimensions of the reform of the German armed forces. OSW Point of View Number 28, May 2012

This reform of the Bundeswehr, launched in 2011, is the latest of the three decisive stages in the post-war transformation of the German armed forces. The reform aims at “constructing” the armed forces anew in the political, military and social dimensions.The present paper presents the evolution of the role of the armed forces in German foreign and security policy and the ongoing process of “constructing” a new Bundeswehr. It analyses the process of redefining the objectives and principles of: the Bundeswehr’s participation in international operations, its current military transformation, and changes in its image and social identity. It also presents the implications of this broader transformation for political and military.

Closing the gap? Military co-operation from the Baltic Sea to the Black Sea. OSW Report, December 2012

The contracting defence budgets in Europe, the difficulties in developing the EU’s security policy, NATO's transformation, the reorientation of US security policy and the problems experienced by European defence industries – all together have in recent years created an increased interest in political, military and military-technological co-operation in Europe.It has manifested itself in concepts of closer co-operation within NATO and the EU (smart defence and pooling&sharing), bilateral and multilateral initiatives outside the structures of NATO and the EU (such as the Nordic Defence Co-operation or the Franco-British co-operation) and debates about the prerequisites, principles and objectives of bilateral, multilateral and regional security and defence co-operation. The present report aims to analyse the potential for security and defence co-operation among selected countries in the area between the Baltic Sea and the Black Sea, i.e. the Nordic states (Denmark, Finland, Norway and Sweden), the Baltic states (Lithuania Latvia and Estonia), Poland's partners in the Visegrad Group (the Czech Republic, Hungary and Slovakia) as well as Romania and Bulgaria. The authors were guided by the assumption that those states are Poland's natural partners for closer regional military co-operation. It may complement ‘the Western’ direction of Poland's security and defence policy, i.e. relations with the partners from the Weimar Triangle and the US. Its goal is not to replace the existing security structures but rather to strengthen military capabilities in the region within NATO and the EU.

Russia's interest in the Mistral: the political and military aspects. OSW Commentary No. 41, 2010-10-11

The negotiations over Russia’s purchase of French Mistral-class multipurpose assault ships, which were intensified in 2010, have gained a significant political dimension. The prospects of such a spectacular acquisition of large and expensive assault ships from one of NATO’s member states are being used by Russia to demonstrate that it has opened a new stage of relations with Western Europe. Paris has welcomed Russia’s desire to embark on military cooperation; for France, the Mistral deal has become a convenient tool to prove that relations with Russia are becoming increasingly normal, and that Russia poses no threat to the European security.

The Strategic Planning of EU Military Operations - The Case of EUFOR TCHAD / RCA. IES WORKING PAPER 5/2008

On 28 January 2008 the European Union launched the military operation EUFOR in Chad and the Central African Republic. Its mandate was to contribute to the security of the civilian population, the numerous refugees from neighboring Darfur and the local presence of the United Nations. This paper describes and analyses the planning process of this operation at the political-strategic and military-strategic levels with the aim of understanding how the military instrument was intended to generate the desired political effects. The paper argues that, from a military perspective, the EUFOR operation is based on the concept of humanitarian deterrence: the threat of military force is used to discourage potential spoilers from targeting the civilian population. As with any military operation, the planning of EUFOR was plagued by various elements of friction. At least some of this friction seems to flow from the mismatch in expectations between the political-strategic and military-strategic levels. The various political and military-technical constraints within which the operation was planned resulted in an operational posture that is less decisive than what the political ambitions would have suggested.

Pro-American non-alignment. Sweden and Finland develop closer military co-operation with the United States. OSW COMMENTARY NUMBER 205/31.03.2016

Russia’s increasingly aggressive policy and its enhanced military activity in the Nordic-Baltic region has led to revaluations in Sweden’s and Finland’s security and defence policies and a rethinking of the formats of their military co-operation. While remaining outside NATO, the two states have been developing closer bilateral defence co-operation and working more closely with the United States, while at the same time developing co-operation with NATO. Sweden and Finland perceive the United States as the guarantor of regional and European security. From their point of view, the United States is currently the country that has both the necessary military capabilities and the political will to react in the event of a conflict between Russia and NATO in the Nordic-Baltic region, in which both countries would inevitably become involved despite their non-aligned status. For Sweden and Finland, intensified co-operation with the United States offers an alternative to NATO membership, which is currently out of the question for domestic political reasons. Meanwhile, the US has also become increasingly aware of the strategic importance of the two states, which, for the purposes of contingency planning, are in fact an extension of NATO’s north-eastern flank.

The implementation of the Gender Perspective in the EU civilian and military missions: Leadership wanted. Security Policy Brief No. 67, October 2015

Fifteen years have passed since the adoption of Security Council Resolution 1325 on Women, Peace and Security, through which time the EU has grown as a security actor. The keys to produce a change in implementing gender mainstreaming in the Common Security and Defence Policy (CSDP) are well known by member states; the EU and external implementation reports1 are repeated again and again, but real change requires real willingness on the part of member states, and leadership.

Cautious and rotational – US military engagement on NATO’s eastern flank. OSW Commentary NUMBER 216 | 05.07.2016

The Russian annexation of Crimea in 2014 put a stop to the gradual scaling down of US military engagement in Europe, a policy that the United States had pursued since the end of the Cold War. The Russian-Ukrainian conflict became a watershed for the US perceptions of European security as Washington started to see the threat of a conflict between Russia and a NATO member as more probable. The United States decided that – despite the mounting challenges in the Pacific region and its involvement in conflicts in the Middle East – it had to invest more in European security. The US has stepped up the intensity of joint drills with the allies and the activities of its forces in Europe. However, its support for the allies has been subject to various limitations and should be treated as a political signal to Moscow, rather than an element in a broader strategy. The future of the policy of strengthening the eastern flank will depend on the outcome of the US presidential elections in November and on developments in the bilateral relations between Washington and Moscow.