*** LAURENCE IDOT, CATHERINE PRIETO (Eds.): Les entreprises face au nouveau droit des pratiques anticoncurrentielles. Le règlement n° 1/2003 modifie-t-il les stratégies contentieuses? Bruylant (67 rue de la Régence, B-1000 Brussels. Tel: (32-2) 5129842 - Fax: 5119477 - Internet: http://www.bruylant.be ). "Droit de l'Union européenne - Colloques" series, No. 3. 2006, 331 pp, €68. ISBN 2-8027-2216-6.
The EU competition policy came into being in 1962 and was given a full rehaul on 1 May 2004 when Regulation 1/2003 of 16 December 2002 came into force, concerning the implementation of Articles 81 and 82 of the Treaty. The 1st of May 2004 is associated in most common mortals' minds of course with ten new countries joining the European Union, but people who are interested in EU competition policy for whatever reason will remember that date for another reason - the reform announced by the then EU Competition Commissioner Mario Monti, which they saw as a major event whose impact has been under a fine toothcomb ever since at a string of conferences. This book is the fruit of one of these academic conferences, organised by the 'Centre de droit économique' at Paul Cézanne University in France and the 'Centre de recherches sur l'Union européenne' of Paris I - Panthéon Sorbonne University, at the Law Faculty in Aix-en-Provence in France in May 2005.
Huge changes were introduced with the 1 May reforms. National authorities are now far more closely connected with the legal system in their country, for example, when it comes to applying anti-trust legislation. In this connection, as Prof. Laurence Idot points out in the introduction, the idea that everything is done in Brussels was already false in the past, but through the reforms, national competition authorities are now obliged to apply EU law and work within the EU competition network. The sea-changes brought about by working in a network have been accentuated by the similar development of new procedures, like clemency and commitment procedures. In parallel, changes are being made that will stress the role of the judge in common law, who has held a central role since the reforms were introduced by making it easier for victims of anti-competitive behaviour to request damages and interest. Alongside this push for decentralisation, there is an ongoing review of the EU's competition policy in its entirety, characterised by greater use of economic analysis than in the past. As Prof. Idot of Paris I University notes, all these factors have to be absorbed by companies and their boards in two ways, namely assimilating and understanding on the one hand, and learning the lessons to be able to use competition rules to boost the company's trade policy, first of all, and then to boost its dispute policy, where necessary, on the other. This book analyses the practical consequences of these profound changes for companies, and their dispute strategies, whether in terms of the victims or the perpetrators of anti-competitive practices, are examined in fine detail.
It goes without saying that this book will delight specialist EU competition lawyers since they are the only readers who will be fully able to appreciate (or challenge) the lessons provided. Non-experts may also benefit from reading the book, however, in terms of understanding how competition law deserves a better press. In the introduction, the Dean of the Law Faculty of Paul Cézanne University responds to critics of competition policy who claim it is a manifestation of the worst aspects of the market economy by noting that the law governing anti-competitive practices helps make the economy healthier and better able to cope with the always possible risks of manipulation of market power. A historian by training, he goes still further by arguing that the battle against cartels and abuse of dominant positions on the market has long been an element of economic democracy. A few days after the conference which is reported on in the book, the French voted against the Constitution partly, the book explains, through an erroneous conception and rejection of competition. The postscript concludes that it is time for EU citizens to be more actively involved in applying EU competition law, which is no doubt one of the most notable successes of the EU project and continues to develop independently of institutional avatars.
Michel Theys
*** MARC LAFFINEUR: La réparation des dommages causés par les pratiques anticoncurrentielles: un débat en devenir. Délégation pour l'Union européenne de l'Assemblée nationale (Boutique de l'Assemblée nationale, 4 rue Aristide Briand, F-75007 Paris. Tel: (33-1) 40 63 61 21 - Internet: http://www.assemblee-nationale.fr ). "Rapport d'information" series, No. 3200. 2006, 81 pp, €3-50. ISBN 2-11-121171-0.
The European Commission's Green Paper on claims for compensation against market fixing and abuse of dominant positions has opened new debate on the 'underdevelopment' of private law suits in the EU, where systems tend to be based on public legal cases by the competent authorities, unlike in the United States, where private legal action predominates. The battle against anti-competitive practices is said to suffer from this. The author of this newsletter starts by assessing the relevance of this statement. He recognises the under-use of legal proceedings in the member states but notes that the systems in place are not devoid of value. Marc Laffineur goes on to examine options put forward by the Commission and considers their conformity with subsidiarity and proportionality. The French parliamentarian raises the persistent fear of Americanisation of EU law and the introduction of similar slippages as those experienced in the United States, particularly the dragging of business life into the courts. He calls for inspiration to be drawn from the system in Quebec in Canada, which he feels is more balanced and better managed. In the third part of the book, the author calls for careful forethought before any changes are made.
(NDu)
*** CRISTIANA CICORIA: Non-profit Organizations Facing Competition. The Application of United States, European and German Competition Law to Not-for-Profit Entities. Peter Lang (1 Moosstrasse, CH-2542 Pieterlen. Tel: (41-32) 3761717 - Fax: 3761727 - E-mail: info@peterlang.com - Internet: http://www.peterlang.de ). 2006, 286 pp, €48-10. ISBN 3-631-55164-9.
Non-profit organisations do not tend to get the recognition they deserve, either socially and economically. They meet social needs that the state and 'traditional' companies are becoming less able to supply, and they also employ a considerable number of people and some organisations generate a large turnover. The fact that these organisations do not have the aim of generating profit, however, has meant that for a long time, they have been out of synch with standard economic and legal doctrine. This is the case, for example, when it comes to regulating competition in their connection. Although there have been several anti-monopoly court cases against non-profit organisations in the United States, there have only been a scattering of cases in EU case law. This book is the fruit of a doctoral thesis for Hamburg University in Germany in 2005 aiming to understand the role of non-profit making organisations and their behaviour, which sometimes infringes competition rules, in a competitive market. The book studies which competition laws should apply to non-profit organisations, the factors that hinder the application of competition law and what could be done to remedy the situation.
(FRo)
*** NORBERT REICH: A Common Frame of Reference (CFR) - Ghost or host for integration ? Zentrum für Europäische Rechtspolitik (Universität Bremen, Universitätsallee, GW 1, D-28359 Bremen). "Diskussionspapier" series, No. 7. 2006, 45 pp, €8.
Norbert Reich notes that after successful launch of the EU directives on sales contracts for European consumers and sales practices, the Commission is now tilting at the heady heights of legal reasoning and literature, namely contract law in general. It is true that the European Parliament has on several occasions passed resolutions encouraging or even urging the EU institutions to pave the law towards EU contract law or an EU civil code and it is against this background that the Commission has proposed a common frame of reference for words often used in EU directives, like 'damages' or 'conclusion'. This book assesses the relevance of such a tool. The author argues that the project is based on faulty conceptual and legal foundations. On the other hand, EU law does exist in this field which, Norbert Reich claims, should be the subject not only of codification but also of democratic legitimisation.
(FRo)
*** MICHEL DE WOLF: Souveraineté fiscale et principe de non discrimination dans la jurisprudence de la Cour de justice des Communautés européennes et de la Cour suprême des Etats-Unis. Bruylant (see above). 2005, 500 pp, €90. ISBN 2-8027-1864-9.
In big political bodies like the United States of America and the European Union, how can one achieve the desirable level of tax harmonisation, reconciling taxation powers with the needs of economic integration? This is the central question in this book and it is an issue which is gaining in relevance in the EU of 27 member states. The book was awarded the Mitchell Carroll Prize by the International Fiscal Association. Doctor in law with an MBA and a degree in applied economics, Michel De Wolf starts by noting that federations can be given autonomous powers over entire areas, like the currency, the army, economic policy or foreign relations, as in the United States, or they can have powers to harmonise legislation laid down by component parts in certain domains, which is more characteristic of the integration process in the EU. At the end of the day, both roads seem to have the same results, notes the author, going on to argue that by combining hypotheses on the federal organisational model and the sharing of taxation powers it emerges that the United States come under the category of federations with autonomous powers where tax powers are shared with the federated states, whereas the European Union is broadly a federation with harmonisation powers where tax powers are reserved for its components. From this starting point, Michel De Wolf demonstrates that both systems tend to reconcile the autonomy of taxation powers with the needs of economic integration using a different technique from the harmonisation of state taxation powers. In the introduction he writes that the single market in both the US and the EU has benefitted from the implementation by judges of a body of higher level laws deriving from the principle of non-tax discrimination. This principle is at the heart of this research, motivated by an especially valuable reflection in the EU where there is debate surrounding the extent to which national legal systems should be brought in line with one another. But will the principle of non-discrimination suffice when it comes to organising a coherent tax body? The author meticulously studies this question in the light of US Supreme Court and European Court of Justice case law as it is true, for example, he explains, that this principle is the very type of generic concept that is useful in jurisdictional interpretation. He adds that without the contribution of judges and the enrichment of case law, it would never have become what it is today in either the United States or the European Union- the main instrument for controlling state taxation in the service of the single market. He admits, however, that the United States is a consolidated federal system, whereas the EU retains the characteristics of a federalism without name that is still in the process of becoming…
(PBo)
*** PETER NIJKAMP, RONALD L. MOOMAW, IULIA TRAISTARU-SIEDSCHLAG (Eds.): Entrepreneurship, Investment and Spatial Dynamics. Lessons and Implications for an Enlarged EU. Edward Elgar Publishing Ltd (Glensanda House, Montpellier Parade, Cheltenham, Glos GL50 1UA, UK. Tel: (44-1242) 226934 - Fax: 262111 - E-mail: info@e-elgar.co.uk - Internet: http://www.e-elgar.com ). "New Horizons in Regional Science" series. 2006, 238 pp. ISBN 1-84542-451-4.
This book's raison d'etre is that the reduction in inequality among countries and regions in the enlarged EU, where disparities have in fact increased to a considerable extent, cannot be achieved without adequate understanding of how investment, entrepreneurship and the spread of knowledge and growth interact with one another. There are gaps in neoclassical economic theories when it comes to economic convergence. The eleven essays in this book, produced by a research network headed by Bonn University's European Integration Studies Institute (ZEI) in Germany, are based on new empirical data covering the new member states with innovative analysis covering both countries and regions and transversal studies. Each of the three areas studied (entrepreneurship, investment and spatial dynamics) is covered by a separate section. The first part looks at foreign investment in new member states and investment made by those countries themselves. The chapters in this section look at the profitability of EU15 company investment in new member states, the role of foreign investment in Hungary's economic transition, and the relatively low level of Japanese investment in new EU member states. The chapters on entrepreneurship attempt to discern the role of entrepreneurship and whether the factors determining successful ventures can be separated out, whether entrepreneurs in the countryside and peripheral areas are at a disadvantage and whether entrepreneurs in the new member states react to external factors in the same way as in the old EU member states. The last section studies what leads to growth spreading, or failing to spread, from one region to the next or from one cluster of companies to another. The authors encourage the new member states to encourage and back local entrepreneurs as a way of sparking a virtuous circle.
(FRo)