Legal privilege for in-house lawyers in the light of AKZO: a matter of law or policy? Research Papers in Law, 05/2011

From introduction. This paper discusses the arguments in favour of extending legal privilege to in-house lawyers in the light of the CJEU‟s judgement in AKZO. The previous jurisprudence is unambiguous, as the Court clearly stated in AM & S that the confidentiality of written communications between an undertaking and its lawyer is protected under Union law only when two cumulative conditions are fulfilled: they must be connected to the exercise of the client‟s rights of defence and the lawyer must be independent, that is, “not bound to the client by a relationship of employment”.1 This protection also applies to internal notes confined to reporting the content of communications with independent lawyers containing legal advice.2

The Arab Spring: A Litmus Test for the EU’s Women’s Rights Policy in the Euro-Mediterranean Area? Bruges Regional Integration & Global Governance Paper 1/2013

The promotion of women’s rights is described as a priority within the external action of the European Union (EU). As a result of the Arab Spring uprisings which have been ongoing since 2011, democracy and human rights have been pushed to the forefront of European policy towards the Euro-Mediterranean region. The EU could capitalise on these transformations to help positively reshape gender relations or it could fail to adapt. Thus, the Arab Spring can be seen to serve as a litmus test for the EU’s women’s rights policy. This paper examines how and to what extent the EU diffuses women’s rights in this region, by using Ian Manners’ ‘Normative Power Europe’ as the conceptual framework. It argues that while the EU tries to behave as a normative force for women’s empowerment by way of ‘informational diffusion’, ‘transference’ ‘procedural diffusion’ and ‘overt diffusion’; its efforts could, and should, be strengthened. There are reservations over the EU’s credibility, choice of engagement and its commitment in the face of security and ideological concerns. Moreover, it seems that the EU focuses more intently on women’s political rights than on their social and economic freedoms.

Prospects for regulatory convergence under TTIP. Bruegel Policy Contribution 2013/15, October 2013

An ambitious, comprehensive and high-standard trade and investment agreement between the European Union and the United States is feasible, but a key concern is whether the transatlantic trade partners will succeed in creating a meaningful agreement within the tight timeline of the Transatlantic Trade and Investment Partnership (TTIP) negotiations. The target of a ratified pact before a new European Commission takes office in November 2014 is an objective that is likely to conflict with the level of ambition on the substance. Regulatory congruence would require the unilateral and unconditional recognition by the TTIP partners of each other’s standards, procedures and conformity assessment tests. The way forward is to create a ‘living’ (or progressive commitment) agreement on regulatory cooperation with a horizontal template for coherence and conformity assessment and a detailed monitoring mechanism, with implementation starting immediately for a few selected sectors. Regulatory harmonisation under TTIP may not lead to emerging markets automatically upgrading to the higher TTIP standards. Domestic priorities and the high demand from a rising price-sensitive group of consumers will likely result in a dual regulatory regime in emerging markets in the medium-term.

Rule of law or rule of thumb? A new Copenhagen mechanism for the EU. CEPS Policy Brief No. 303, 20 November 2013

This Policy Brief synthesises the main research findings and policy recommendations presented in the CEPS e-book entitled The Triangular Relationship between Fundamental Rights, Democracy and Rule of Law: Towards an EU Copenhagen Mechanism” (http://www.ceps.eu/book/triangular-relationship-between-fundamental-righ...). The authors examine the ways in which the European Union could strengthen and develop its competences in the assessment of member states’ fundamental rights, democracy and rule of law commitments. They argue that a strong political impetus is needed at Union level in order to set up a new supervisory “Copenhagen Mechanism” that would effectively and periodically evaluate member states’ compliance with democratic rule of law with fundamental rights on the basis of independent academic expertise, and by ensuring a high level of democratic accountability and judicial oversight at European levels. The Policy Brief also aims at summarising CEPS’ contribution to the upcoming Conference “Assises de la Justice: Shaping Justice Policies in Europe for the Years to Come” organised by the European Commission in Brussels on 21-22 November 2013.

Life after Bali: renewing the world trade negotiating agenda. Bruegel Policy Contribution 2013/17, December 2013

The crisis has contributed to a slowdown in global trade volumes, with trade virtually stagnant in the twelve months to July 2013. In this context, fruitful negotiations in the World Trade Organisation’s 9th Ministerial Conference in Bali are crucial to sustain the institution’s credibility and prove that multilateral negotiations can still deliver success. WTO trade talks are the only ongoing trade liberalisation process that has development at its core. The Doha mini-package under consideration at Bali is a collection of watered-down but deliverable elements of a deal comprising agriculture, trade facilitation and special and differential treatment/less developed country concessions. Post-Bali, the WTO should aim to reverse the current disenchantment with multilateral trade negotiations. This means formulating a relevant trade negotiating agenda with an understanding of global value chains at its core. However, the transition to the new agenda requires a closure of the ongoing Round. The easiest way to conclude the Doha Round would be to select another discrete set of deliverables that fulfills the development commitment of the Doha Development Agenda, thus paving the way for a new Round.

Can border carbon taxes fit into the global trade regime? Bruegel Policy Brief 2013/06, 9 December 2013

One complement to domestic climate policies could be the regulation of carbon dioxide emissions arising during the production of imported products. Such ‘border carbon adjustments’ (BCAs) are said to have several benefits, but are also severely criticised. This Policy Brief highlights some weaknesses in the standard argumentation for BCAs. But there is an alternative argument for border carbon measures, based on the fact that countries expose each other to climate externalities. The reformulated argument is economically more convincing, and provides a more convincing justification for the extraterritorial feature of border carbon measures. However, there are also several important factors mitigating against the implementation of such measures, including the risk that these measures will be used for protectionism. One complement to domestic climate policies could be the regulation of carbon dioxide emissions arising during the production of imported products. Such ‘border carbon adjustments’ (BCAs) are said to have several benefits, but are also severely criticised. This Policy Brief highlights some weaknesses in the standard argumentation for BCAs. But there is an alternative argument for border carbon measures, based on the fact that countries expose each other to climate externalities. The reformulated argument is economically more convincing, and provides a more convincing justification for the extraterritorial feature of border carbon measures. However, there are also several important factors mitigating against the implementation of such measures, including the risk that these measures will be used for protectionism.

Transaction Banking: Respecting its role in the real economy. ECRI Policy Brief No. 6, 6 December 2013

This paper sketches the main features and issues related to recent market developments in global transaction banking (GTB), particularly in trade finance, cash management and correspondent banking. It describes the basic functioning of the GTB, its interaction with global financial markets and related implications of global regulatory developments such as Basel III. The interest in GTB has recently increased, since its low-risk profile, tendency to follow growth rates worldwide and relative independence from other financial instruments became an interesting diversification opportunity both for banks’ business models and for investors. Transaction banking has been a resilient business during the crisis, despite the reduction in world trade figures. In the post crisis period, GTB must cope with new challenges related to increased local and global regulation and the risk of inconsistency in regulatory approaches, which could negatively impact the global network and increased competition by new market entrants. Increased sophistication of corporate clients, as well as the pressure to develop and adopt technological innovations more quickly than other areas of banking continues to impact the business. The future of the industry closely depends on its ability to adjust to complex regulatory developments while at the same time being able to operate a global and efficient network.

Paving the Way for Micro-, Small- and Medium-Sized Enterprises in the Southern Mediterranean. CEPS Policy Brief No. 314, 14 January 2014

The upheavals of the Arab Spring in the southern Mediterranean led to domestic and international demands on the governments in the region to implement reforms aimed at enhancing business and investment conditions especially for micro, small- and medium-sized enterprises (MSMEs), which carry out an overwhelming majority of the region’s economic activity. A comprehensive survey among some 600 high-growth potential MSMEs in Algeria, Egypt, Morocco and Tunisia identified and ranked the key obstacles impeding their high-growth potential. This Policy Brief summarises the main results and policy recommendations that can be drawn from this survey, which has been analysed in depth by Ayadi & De Groen (2014).

A Roadmap for Strengthening International Collaboration in Research and Innovation under Horizon 2020. EU Center Singapore Background Brief No. 9, May 2013

This  background  brief  looks  into  the  new  research  and  innovation  strategy  introduced  by  the  European  Union  embodied in the Horizon 2020 funding programme. It focuses  on the  prospect  for  international  collaboration  in  Horizon  2020, and presents a roadmap for both European institutions  and  those  from  key  third  countries  to  get  ready  for  the  opportunities provided by this funding instrument to embark  on interesting research and innovation. The brief begins by  outlining the efforts by the EU to address issues of economic  competitiveness with a new growth strategy Europe 2020 in  response to the enormous challenges faced by Europe in the  midst of the debt  crisis. It looks at the introduction of the  Innovation Union  as  a  Europe 2020  initiative,  and  explains  how the  new  financial  instrument,  Horizon  2020,  may  be  used to support the primary goals   of more jobs, improved  lives,  better  society  and  the  global  competitiveness  of  Europe.  The  brief  also  outlines  the  major  differences  of  Horizon 2020 from the previous framework programmes, and  recommends close collaboration between the European and  the key third countries. The brief also proposes general and  priority‐specific  strategies  for  national  research  councils,  universities  and  research  institution  to  get  ready  to  participate in the Horizon 2020 programme.  

Will the Transatlantic Trade and Investment Partnership be a game-changer? EU Centre Singapore Policy Brief No. 5, April 2013

In February 2013, US President Barrack Obama, European Council President Herman Van Rompuy and President of the European Commission José Manuel Barroso announced the decision to go for an ambitious and comprehensive trade and investment agreement between the US and the EU. To be called the Transatlantic Trade and Investment Partnership (TTIP), this agreement would lead to a new stage in the transatlantic relationship and be a much needed boost to the lacklustre economic recovery so far. Some analysts have even argued that TTIP would be a “game changer” – besides the economic gains, it would serve a bigger strategic purpose of promoting EU-US common objective to set higher standards of trade liberalisation, and thereby level the playing field in China and other key emerging markets. This policy brief examines the reasons behind the current push towards TTIP and the possible contents of such an agreement. It also discusses the possible obstacles to the realisation of TTIP, and at the same time, looks into what a successful conclusion of TTIP would mean for Asia and beyond.

The EU’s comprehensive approach towards security: the Lisbon Treaty and “smart power”. EU Centre Singpore Policy Brief No. 6, May 2013

The European Union (EU) has increasingly become a comprehensive security actor. With the development of the Common Foreign and Security Policy (CFSP), including the Common Security and Defence Policy (CSDP) as a reaction to the failure of the EU to act during the wars in Yugoslavia/Western Balkans in the 1990s, the EU has a wide range of instruments for crisis prevention, crisis management as well as post-crisis intervention at its disposal. Observers typically agree that “hard power” is no longer sufficient to address the complex security challenges of today’s world while the EU, often criticised for only utilising “soft power”, is now able to exercise “smart power”. Through a comprehensive approach, facilitated by the Lisbon Treaty, the EU can now use the various instruments at its disposal, such as diplomacy, development aid, humanitarian assistance, trade, sanctions, international cooperation and crisis management capabilities in a joined-up manner. This mix of tools and instruments is helping the EU to achieve the aim set out in its European Security Strategy: “a secure Europe in a better world”.

The Judicial Dimension of the European Neighbourhood Policy. EU Diplomacy Paper 08/2013, November 2013

In this paper, the expression “neighbourhood policy” of the European Union (EU) is understood in a broad way which includes the members of the European Free Trade Association (EFTA) contracting parties to the European Economic Area (EEA), the EFTA State Switzerland, candidate states, the countries of the European Neighbour-hood Policy (ENP), and Russia. The European Court of Justice (ECJ) is the centre of gravity in the judicial dimension of this policy. The innermost circle of integration after the EU itself comprises the EFTA States who are party to the European Economic Area. With the EFTA Court, they have their own common court. The existence of two courts – the ECJ and the EFTA Court – raises the question of homogeneity of the case law. The EEA homogeneity rules resemble the ones of the Lugano Convention. The EFTA Court is basically obliged to follow or take into account relevant ECJ case law. But even if the ECJ has gone first, there may be constellations where the EFTA Court comes to the conclusion that it must go its own way. Such constellations may be given if there is new scientific evidence, if the ECJ has left certain questions open, where there is relevant case law of the European Court of Human Rights or where, in light of the specific circumstances of the case, there is room for “creative homogeneity”. However, in the majority of its cases the EFTA Court is faced with novel legal questions. In such cases, the ECJ, its Advocates General and the Court of First Instance make reference to the EFTA Court’s case law. The question may be posed whether the EEA could serve as a model for other regional associations. For the ENP states, candidate States and Russia this is hard to imagine. Their courts will to varying degrees look to the ECJ when giving interpretation to the relevant agreements. The Swiss Government is – at least for the time being – unwilling to make a second attempt to join the EEA. The European Commission has therefore proposed to the Swiss to dock their sectoral agreements with the EU to the institutions of the EFTA pillar, the EFTA Surveillance Authority (ESA) and the EFTA Court. Switzerland would then negotiate the right to nominate a member of the ESA College and of the EFTA Court. The Swiss Government has, however, opted for another model. Swiss courts would continue to look to the ECJ, as they did in the past, and conflicts should also in the future be resolved by diplomatic means. But the ECJ would play a decisive role in dispute settlement. It would, upon unilateral request of one side, give an “authoritative” interpretation of EU law as incorporated into the relevant bilateral agreement. In a “Non-Paper” which was drafted by the chief negotiators, the interpretations of the ECJ are even characterised as binding. The decision-making power would, however, remain with the Joint Committees where Switzerland could say no. The Swiss Government assumes that after a negative decision by the ECJ it would be able to negotiate a compromise solution with the Commission without the ECJ being able to express itself on the outcome. The Government has therefore not tried to emphasise that the ECJ would not be a foreign court. Whether the ECJ would accept its intended role, is an open question. And if it would, the Swiss Government would have to explain to its voters that Switzerland retains the freedom to disregard such a binding decision and that for this reason the ECJ is not only no foreign court, but no adjudicating court at all.

Micro-, Small- and Medium-Sized Enterprises with High-Growth Potential in the Southern Mediterranean: Identifying Obstacles and Policy Responses. CEPS Paperbacks. January 2014

The Arab Spring, which took root in Tunisia and Egypt in the beginning of 2011 and gradually spread to other countries in the southern Mediterranean, highlighted the importance of private-sector development, job creation, improved governance and a fairer distribution of economic opportunities. The developments led to domestic and international calls for the region’s governments to implement the needed reforms to enhance business and investment conditions, modernise their economies and support the development of enterprises. Central to these demands are calls to enhance the growth prospects of micro-, small- and medium-sized enterprises (MSMEs), which represent an overwhelming majority of the region’s economic activity.

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.

Next steps toward a final deal with Iran. CEPS Policy Brief No. 316, 14 February 2014

On January 20th, the International Atomic Energy Agency confirmed that Iran had been implementing its commitments as part of the Joint Plan of Action (JPA) agreed with the so-called ‘E3+3’ in Geneva (also known as P5+1) on 24 November 2013. The forging of this interim deal, the successful start to its implementation and the temporary sanctions relief represent resounding success for international diplomacy but they should not be allowed to conceal the underlying issues. Reaching agreement on the JPA was achieved at the cost of clarity over what is to follow and it was decided to eschew a structured agreement in favour of a two-step process. The stated aim of the negotiating parties remains that of starting the implementation of a comprehensive solution by November 2014. If agreement is not reached on a comprehensive solution by the expiry of the JPA by July 20th, the action plan can be renewed by mutual consent. The latter might well be the likeliest outcome of the forthcoming negotiations. Apart from the large gap between the E3+3 and Iranian positions on the substance of a final deal, several domestic policy constraints will likely define the parameters of what is achievable in the future. This CEPS Policy Brief argues that the best hope for success lies in continued engagement and consistent incremental progress in the negotiations, with structured concessions on both sides. This should occur, however, not in a two- but a three-step framework based on lengthening Iran’s ‘breakout’ period while re-engaging with the country both politically and economically. The EU is in a unique position to lead this process. Having greater flexibility than either the US or Iran, its main tasks will be that of maintaining the negotiating momentum and broadening dialogue with Iran.