*** SYLVIE MATELLY, BASTIEN NIVET: L'Europe peut-elle faire face à la mondialisation ? La Documentation française (Direction de l'information légale et administrative, 29 quai Voltaire, F-75344 Paris cedex 07. Tel: (33-1) 40157010 - Internet: http://www.ladocumentationfrancaise.fr ). "Réflexe Europe - Débats" series. 2015, 194 pp, €9. ISBN 978-2-11-008896-3.
Perfectly loyal to the spirit of this series, which aims to make complex situations understandable without over-simplifying matters, the authors of this book provide a series of both nuanced and optimistic, or at any rate constructive, answers to the question of whether Europe can cope with globalisation. The authors, both lecturers at Leonardo da Vinci management school (Paris-La Défense), work at the Institut des Relations Internationales et Stratégiques. Sylvie Matelly and Bastien Nivet take their reflection to the heart of the concerns and questions that gnaw away at many citizens, not only in France but throughout Europe. Is the European Union a Trojan horse for ultraliberal globalisation, since in many respects it gives increasing numbers of people the impression that it has become 'no more than a market, although the European venture was thought up as an eminently political project'? This simple and perfectly joyful (especially from French writers) reminder is a good explanation of the spirit from which the authors address the question, which does not prevent them from daring to ask in the light of the growth of populist and eurosceptic forces in the last European elections, what today is the 'pertinence and value-added of the European level for the defence and promotion of European's economic, social and political interests' and whether the crisis that has been hitting for the past seven years would lead it to close itself off from the rest of the world, which would amount to a victory for various separatists over the European integration project.
The authors address these themes in three sections. To start with, they look back methodically as the concomitant emergence of the dynamics of the European construction and globalisation in the wake of the Second World War, Sylvie Matelly and Bastien Nivet, unlike many others, have the honesty to admit that the European venture did not start with the Single Market of the Treaties of Rome but rather with the European Coal and Steel Community launched thanks to Schuman and Monnet. They point out that the 70s and 80s were decades of the relaunch of 'European integration facing global somersaults' which, they argue, clearly confirms that 'the two processes feed into each other.' They then look at the role occupied by the Union in globalisation, reviewing its advantages, which make it a 'de facto actor in global governance,' but also cause 'its problematic handicaps' (ranging from energy dependency to the ageing population via not enough investment in innovation) and its 'structural weaknesses' the least problematic of which are certainly not the 'economic policy coordination gaps,' its 'still unevenly developed' foreign policies and, finally, sometimes not enough 'political volontarism or cohesion.' In the second part of the book, the authors deal with the way the European Union is positioning itself in the face of growing challenges to globalisation' which, while being far from unanimous, lead to a reflection on the causes of the crisis of recent years, the future of the euro, its management, the fate to be reserved for the social dimension and competitiveness. The third section looks at the roles and possible attitudes for the Union in globalisation, which leads the authors to consider the Union (giving explanations as to why) as a power with uncertain contours,' still wavering between ;simple internal economic cooperation' and 'burgeoning political union,' going on also to discern the limits of the 'temptations in the direction of de-Europeanisation.'
Summing up, Sylvie Matelly and Bastien Nivet are optimistic, pointing out that the Union 'has a number of advantages when it comes to dealing with globalisation,' even appearing 'like a possible model.' The twenty-eight member states would have to want this, however, and give it the tools for optimising its potential by accepting 'a pollicisation of its institutions and their approaches to international dynamics.' It therefore needs to free itself from the shackles its finds itself in 'between the maintenance of national prerogatives or multiple forms and global dynamics,' so that it is capable of again ensuring for Europeans 'economic development, social progress, democracy and solidarity, both within its borders and in the global arena.' One could not find a better description of the sale of the challenge to be taken up if one wants to avoid the high priests of separatist seclusion triumphing in the year future!
Michel Theys
*** LAURA BÖRGER: Die gerichtliche Kontrolldichte bei der Überprüfung von Entscheidungen der Europäischen Kommission auf dem Gebiet der Fusionskontrolle. Peter Lang (1 Moosstrasse, P. O. 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - Fax: (41-32) 3761727 -Email: info@peterlang.com - Internet: http://www.peterlang.com ). "Veröffentlichungen des Instituts für deutsches und europäisches Wirtschafts-, Wettbewerbs- und Regulierungsrecht der Freien Universität Berlin" series. 2014, 492 pp, €89.95. ISBN 978-3-631-65767-6.
Laura Börger looks in her thesis at the antagonism that exists between the European Commission's freedom of judgement in investigating company mergers and acquisitions and the extent and frequency of jurisdictional control over said decisions. The legal protection system at European Union scale is impregnated with the national legal traditions of the various member states, so after defining the concepts used, the author starts by providing a study of comparative law vis-à-vis the freedom of judgement of the competent bodies when it comes to investigating mergers and acquisitions in the domestic law of France, the UK and Germany, and the jurisdictional controls to which these decisions are subject. Laura Börger then describes the measures that determine the scope and frequency of investigations by European courts, before focusing on the heart of her topic, viz. control over the Commission's decisions on company mergers and acquisitions. In the final section, two laws are analysed in particular: European Regulation 139/2004 on investigations into company mergers and acquisitions, and European Court of Justice case law which, following a number of rulings, emerged in 2002 from its réserve de principe to investigate the foundation of the Commission's decisions on mergers and acquisitions. The author feels that the scope of this control is insufficient, and wants it to be exhaustive in order to ensure legal protection for citizens that complies with the demands of Article 47 of the Charter of Fundamental Rights.
(GLe)
*** THIEMO ENGELBRACHT: Die einvernehmliche Beendigung von Kartellbußverfahren vor dem Europäischen Kommission und dem Bundeskartellamt, eine rechtsvergleichende Untersuchung aus strafrechtlicher Perspektive. Peter Lang (see above). "Schriften zum deutschen, europäischen und internationalen Wirtschaftsstrafrecht" series. 2015, 388 pp, €74.95. ISBN 978-3-631-66496-4.
This thesis deals with the practices of the European Commission and the German federal office that investigates illicit price-fixing in order to put an end to the procedures for setting administrative fines for unlawful agreements. The author examines whether these practices are compatible with the principles of the rule of law and penal guarantees in the sense of penal procedures. He reaches the conclusion that these latter principles are broadly respected, despite various aspects that would merit some improvement. He also raises the question, for someone appealing for damages, of the right to consult the settlement statements for such cases.
(GLe)
*** JACQUES DERENNE, ERIC MORGAN DE RIVERY, NICOLAS PETIT (Eds.): Antitrust damages in EU law and policy. GCLC Annual Conference Series. Editions Bruylant (voir coordonnées supra). 'Global Competition Law Centre' series, No. 5. 2015, 185 pp, €75. ISBN 978-2-8027-4695-9.
Held in the European quarter in November 2013, the ninth conference of College of Europe's Global Competition Law Centre was entirely devoted to the 'package' pieced together by the European Commission concerning appeals for damages relating to infringements of measures relating to competition law. Finally adopted on 10 November 2014 and now awaiting transposition, the directive is one of the finest successes of former European Commissioner Joaquín Almunia, who features in these pages as the writer of the preface, after being the keynote speaker. In turn, the sections of the book cover the current situation in this domain at both national and European level, the objectives pursued by the Commission and the reactions they have generated on the ground, the procedures to b respected when lodging a claim for damages and. finally, questions relating to the determination of liability.
(PBo)
*** MEHDI MEZAGUER: Les procédures transactionnelles en droit antitrust de l'Union européenne. Un exercise transactionnel de l'autorité publique. Editions Bruylant (Groupe Larcier, 39 rue des Minimes, B-1000 Brussels. Tel: (32-2) 5480713 - Fax: 5480714 - Email: commande@larciergroup.com - Internet: http://www.larcier.com ). "Droit de l'Union européenne - Thèses" series. 2015, 582 pp, €90. ISBN 978-2-8027-4709-3.
Following on from a thesis, this book provides a procedural reading of the application of the European Union's antitrust rules. It puts the rules into perspective, based on a detailed, open-minded reflection on founded on both an experimental approach consisting of deducing conclusions from pure hypotheses and experimental rigour in the demonstrations, a perilous exercise hailed by professor of public law Marc Blanquet (of Toulouse I Capitole University), the director of doctoral studies who wrote the preface. One of the prime singularities of Mehdi Mezaguer - who is now a qualified senior lecturer in public law - is that unlike what is claimed by 'the majority, even unanimous doctrine,' he does not consider these procedures to be 'alternative,' because they cover 'no less than 85% of cases processed by the Commission in this antitrust domain in recent years.' In the sane spirit, he also challenges the idea that these are 'negotiated' procedures because, as Prof. Blanquet summarises it, the author is 'struck by the absence of genuine negotiation in a number of situations when he key condition of equal arms is lacking,' which is not the case among those held by the European Commission on the one hand, and the economic bodies concerned on the other. The author points out in the conclusions he draws after fleshing out his critical vision of transactional procedures that study of this subject requires one to regularly consider the 'specific nature of the European Commission, a hybrid institution at the crossroads of the most disparate concerns and principles.' At the end of this in-depth investigation which sees him punctuate it with incisive ideas about reform of the existing decision-making system, he explains that while the Commission is not wrong to want to build on a transactional policy 'based on procedural rationality,' it must also remember that 'only law as a system can claim to be right.' Hence this call to reason that he issues: 'Clemency, commitment and transaction procedures must remain free choices for antitrust policy and free itself from law. On the contrary, they must be reconsidered within the overarching context of the European Union's legal order.' Clearly, European judges must take their full place in the transactional decision-making process.
(PBo)
*** GERDA OCHS: Die Europäisierung der Regelungen zur grenzüberschreitenden Verschmelzung von Kapitalgesellschaften. Peter Lang (see above). "Europäischen Hochschulschriften Volks- und Betriebswirtschaft" series. 2015, 244 pp, €61.95. ISBN 978-3-631-66545-9.
This book by Gerda Ochs deals with the repercussions of the German law on company transformation and the German fiscal law of 1995 on cross-border corporate groupings. These laws have had the effect of reducing the administrative burden in such cases and in certain situations, they allow the transfer of hidden reserves. However, the author also covers other questions such as whether mergers within a single country are treated differently from mergers involving foreign companies. Gerda Ochs also addresses the question of whether the prescriptions of European law, upon which the two German laws are based, comply with the principles of if social law and whether they enhance Germany's attraction as a place for companies to be based.
(GLe)
*** MATTHIAS PEUKERT: Strafbare Untreue zum Nachteil einer in Deutschland ansässigen Limited. Peter Lang (see above). "Schriften zum deutschen, europäischen und internationalen Wirtschaftsrecht 2" series. 2015, 375 pp, €84.95. ISBN 978-3-631-65972-4.
Matthias Peukert's thesis deals with the application of foreign law in Germany and the limits on the application of foreign law arising from constitutional law, giving the example of abuse of confidence to the detriment of an English limited private company established in Germany. According to the author, the case law applicable in this domain has not been able to solve the issues raised by taking foreign laws into account in the framework of accessory elements constituting an infringement in Germany. Matthias Peukert's thesis also examines the foundations in European law and company law for European companies' freedom of establishment, how doctrine defines the criteria for the existence of abuse of confidence, and the approaches to the application of foreign law taken thus far, along with the limits on said application arising from constitutional law. The English rules governing companies that need to be taken into account in the case of an English limited company established in Germany are described in detail.
(GLe)