*** OLIVIER FRÉGET: La concurrence. Une idée toujours neuve en Europe et en France. Odile Jacob (15 rue Soufflot, F-75005 Paris cedex 05.Tel: (33-1) 44416484 -Internet: http://www.odilejacob.fr ). 2015, 345 pp. €25.90. ISBN 978-2-7381-3125-6.
This book is delivered as an appeal. It is quite brilliant and the author pulls lots of facts out of his sleeve in the shape of highly stylistic tirades. All this is quite normal because Olivier Fréget happens to be a lawyer. This specialist in competition law and sectoral regulation is not just a coldly skilful legal expert, he is also very passionate about what he believes in! He vehemently believes in the virtues and benefits of competition, particularly “competition on its own merits”. He believes in it to the point that he does not hesitate to launch a frontal attack on those in France, such as the economist Jacques Sapir or Nicolas Sarkozy, when he was President, who the author believes were guilty of undermining European competition policy and paving the way for a “dictatorship of European functionaries” and a “technocracy without nation”. He also has no time for the “populists of the right and left” who argue that competition is a weapon of the strongest and a "tool for destroying solidarity”. He does, on the other hand, argue that the defence of free unhindered competition is the exact opposite, if it is sufficiently understood, and that it is a way of guaranteeing the ability of "living together" and ensuring that all other possibilities co-exist.
The author considers that on its own merits, competition contains a singular virtue within the European context: "It is the only key to the vault possible for a continent that is seeking to maintain plurality and unity, decided as it has done to reject any kind of empire and counter the path of war in order to govern itself through the primacy of law". The author is of the opinion that competition is a "social construction" that arose on the European continent in order to take into account all the different sensibilities and ambitions that have expressed themselves over the centuries. The use of force has not helped to construct empire and it is on the ruins of Nazism and its failed project that only maintaining power through the "support of the German industrial cartels and is therefore the negation of competition" that the European Community of Coal and Steel that marked a change in a major paradigm and opened the way to the possibility of developing a secure state that is neither imperialist or unifying but which develops competition on its own merits as its constitutional principle". This subsequently creates revolutionary progress in two different areas: firstly, "policy" had to exist with the "overriding principle" of competition based on its own merits between equals, with the European Court of Justice ensuring that this strength and stroke of genius became sustainable and secondly - the fact that it is based on four major freedoms of movement, the right of competition having been the response provided to the need to guarantee a balance within an entire economic entity that does not have political sovereignty. In this context, Fréget also eloquently defends the "liberal order as a founding principle of European philosophy" because it is true that those serving it, as opposed to the neo and ultra liberal supporters of unbridled competition demand, "an elaborate and sophisticated legal constitution" and leave a maximum freedom to economic actors and that those serving in the public sphere, who are exclusively concerned by their mission of making it possible to exist".
This is the overall picture in which this book is written and in the first part of it is brilliantly drawn together. In the second part, the author looks at the issue of competition law in the context of guaranteeing "an open society". In this analysis, he examines the Union's instruments to counter, "any situation of collective or individual hegemony". He subsequently outlines and dissects the different ways of, "ensuring the independence of economic actors (agreements); "enforcing rules on any powers that may have arisen" (abuse of dominant position), "preventing market distortion" (controlling mergers and concentrations), tackling special privileges (special and exclusive rights), "fighting the addiction for taking public money" (state aid). In his appeal, he also becomes something of a prosecutor when he openly accuses the Commission of suffering, since the years 2000, of a "particular pathology", namely, "competitive regulocacy”. He describes this as, "a subtle form of administration of the economy, under cover of applying competition law or the application of sectoral regulations needed". Oliver Fréget claims that this is a kind of "drift" that is mainly due to a "federal illusion" that is leading to a, "British led bureaucratic Europe of the gambler”, "which should be thoroughly cut out”. All the different ideas expressed in this book need to be looked at in their own right. It is, however, useful to reflect on the profession of faith made by the author when the question arises of providing an opinion about Union competition policy, "the principle of competition on its own merits, which is free and unhampered offers… The possibility of devising and a-imperial political area, devoid of synthesis and in which this zone can promote the healthy clash of ideas and different goals", except when claims are made to develop power or coalition and subsequently aim to promote the despotic unification of individuals. In this perspective, we are already removed from the arena of competition and enter the domain of political philosophy.
Michel Theys
*** EVELYN FRINK: Verständigungs- und Schiedsverfahren im Internationalen Steuerrecht. Peter Lang (1 Moosstrasse, P.O. 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: 3761727 - Email: info@peterlang.com - Internet: http://www.peterlang.com ). "Trierer Studien zum Internationalen Steuerrecht" series. 2015, 189 pp. €54.95. ISBN 978-3-631-66166-6.
In her thesis, Evelyn Frink provides readers with a book that looks at the risks of developing dual taxation (in two different states) for the major consortia active on the international stage, as well as the means of preventing this situation arising. She subsequently distinguishes the preventive measures in the fight against dual taxation (the possibility of developing prior agreements between legal persons and the tax authorities on taxation and the agreements focusing on dual taxation), as well as reactive measures, such as those that are introduced once dual taxation occurs (procedures concluded as consensus and arbitration). She then analyses the advantages and disadvantages of each of these measures for the companies concerned, in terms of costs, procedures and risks (future risks that arise, for example, for communicating information to the authorities). One of the aims in this thesis is to help companies establish the most appropriate measures in regard to their specific situations, so that they can avoid dual taxation.
(GLe)
*** ALINA TRYFONIDOU: The Impact of Union Citizenship on the EU's Market Freedoms. Hart Publishing (16C Worcester Place, Oxford, OX1 42JW, UK. Tel: (44-1865) 517530 - fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). "Modern Studies in European Law" series, No. 60. 2016, 259 pp. £50. ISBN 978-1-84946-167-2.
This detailed study focuses on the impact that the status of European citizen has had on the freedoms provided within the single market. The freedom of movement for capital is not taken into account. Alina Tryfonidou it is a senior lecturer in European Union law at the University of Reading. One of her chief objectives is to identify the way in which this new citizenship has contributed to the shaping of the way in which these economic freedoms are interpreted and what role it can possibly play in the future. She also seeks to analyse the problems and questions that arise through this reinterpretation of market freedoms, in view of providing a response to these issues and she provides an outline of a number of them. She first of all sets the scene for responding to this fundamental question and provides a very timely reminder that European construction results from the wishes expressed by certain major players that the errors of the past led to the Second World War and can never be repeated. She argues that this is the reason why a "supranational authority" was invited at the beginning of the 1950s to manage the coal and steel sectors by the six founding member states, which ultimately led to the trajectory, which (she clearly summarises) as the recognition of European citizenship in the Maastricht Treaty. The author also places the freedoms of movement in their historical context and dedicates a chapter to the way in which the status of the citizen in the Union arose from the gradual emancipation arising from the rulings made by the European Court of Justice and the economic connotations deriving from the market and its concomitant actors. She also points out that although the Luxembourg Court never wanted to establish an explicit link between citizenship and the free movement of goods, it did, however, make possible a new, "conceptualisation of these provisions as the sources of fundamental rights for individuals". She argues that this has subsequently allowed for a broader interpretation of the freedoms of the markets as observed over recent years. The author claims that this interpretation cannot just be justified by a logic based on the internal market alone but also from the fact that this arises from a logical sequence based on European citizenship.
(PBo)
*** MICHAL BOBEK, JEREMIAS PRASSL (Editors): Air Passenger Rights. Ten Years On. Hart Publishing (16C Worcester Place, Oxford, OX1 42JW, UK. Tel: (44-1865) 517530 - fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). "EU Law in the Member States" series, No. 3. 2016, 380 pp. £60. ISBN 978-1-84946-824-4.
This series stems from an academic observation that European law does not naturally descend from the heights of the Brussels-Luxembourg-based heights and that, despite the doctrines of the direct effects of this law and its primacy on national law, there are still a number of grey areas where its implementation is still inappropriately applied in the member states. This publication is also the result of a conference in Bruges two years ago jointly organised by the College of Europe and Oxford University's Institute of European and Comparative Law. It provides an unprecedented contribution to the debate on this subject. The 261/2004 Regulation established common rules on compensating and assisting airline passengers when they are refused embarkation, their flights are cancelled or they suffer from significant delays and which has not been generally transposed since its entry into force in February 2005 in a uniform way to the benefit of travellers. In the first part of the book, the subject is tackled from the point of view of the Union and its institutions. Therefore, Judge Jiri Malenovsky begins by presenting and defending the position adopted on this issue by the European Court of Justice. He also looks at the principle of compensation in cases involving delayed flights. Other contributions then demonstrate that this regulation results from the liberalisation of the aviation sector in the European Union where the difference stakeholders are still divided on this issue and where certain courts refuse to admit that this should prevail in relation to the prescriptions laid out in the Montréal Convention, a key policy in the area of international aviation law. The second part of the book is even more substantial insofar as it includes 10 identical examples that enable us to compare the way in which the regulation and case law arising from it have been assimilated in 14 member states: Austria and Germany, the three Benelux countries, Bulgaria, Spain, Estonia, France, Italy, Poland, the Czech Republic and Slovakia, without even counting the United Kingdom. Professors Jeremias Prassl (Oxford University) and Michal Bobek (College of Europe) provide this comparison succinctly and methodologically and reveal, "a significant degree of diversity in the legal rules governing the rights of passengers in relation to the companies and, in particular, in the interaction between European legislation and the law in the respective member states”. An insight is also provided in the final part of this publication on the extra-terrestrial implementation of the regulation in the perspective of the situation in the US. Finally, the last part of the publication looks at the lessons that should be drawn from these observations in the context of European aviation law, the internal market, the Union's constitutional law, private law on this question and, finally, the question of consumer protection because, as argued by Bobek and Prassl, the potential solution to many of these problems identified could possibly be found, "in the pursuit of the harmonisation of European Private Law with regard to the provision of services. This would restore coherency and the rights enjoyed by Euroepan citizens, as airline passengers and consumers". Overall, the authors consider, however, that the chances of seeing, "a genuinely uniform regime" developing in member states is rather slim …
(PBo)
*** ANNA ESCHBACH: Delegierte Rechtsakte und Durchführungsrechtsakte im Europarecht. Eine Untersuchung anhand des Demokratie- und Rechtsstaatsprinzips unter besonderer Berücksichtigung des Urtels zur Rs. C-427/12 des Europäischen Gerichtshof. Éditions Peter Lang (1 Moosstrasse, case postale 350, CH-2542 Pieterlen. Tel: (41-32) 3761717 - fax: 3761727 - Email: info@peterlang.com - Internet: http://www.peterlang.com ). « Kölner Schriften zu Recht und Staat » series, No. 57. 2015, 267 pp.. ISBN 978-3-631-66671-5.
The author of this publication examines the delegated and enabling acts covered by Articles 290 and 291 of the Treaty on the Functioning of the European Union. She then locates them in the context of the principles of democracy and primacy of law. Particular attention focuses on the European Court of Justice and by biocide products.
(PLa)
*** Regions & Cities of Europe. Comité des régions (99-101 rue Belliard, B-1040 Brussels. Tel: (32-2) 2822211 - fax: 22822085 - Internet: http://www.cor.europa.eu ). January/February 2016, No. 94, 26 pp. This Dutch Presidency of the Council Committee of the Regions newsletter looks at the questions of migration policy and falling investment in public infrastructure.
(MT)