TOPIC 1

EUROPEAN BANKING UNION

The purpose of this session will be to discuss theoretical and practical aspects of Banking Union (BU). It will examine each of the three pillars of BU, namely, the single supervisory mechanism, the single resolution mechanism and the single rulebook. Emphasis will be placed on constitutional aspects, the relationship between BU and general EU law, and selected substantive elements of BU but not on highly technical aspects. It is envisaged that the FIDE questionnaire will contain general questions and questions pertaining to each of the three BU components. The session will seek to explore, among others, the following themes: (a) the legal bases of BU, its relationship with the internal market and its interaction with EMU; (b) the sources of BU law, including the EU Treaties, international agreements, EU measures, delegated legislation, soft law and national law; (c) the powers of the ECB, the role of the Commission, and the role of EU agencies; (d) the link between BU, measures adopted to counter the Eurozone crisis, bail out mechanisms and national economic policy; (e) the role of the Court of Justice of the EU; (f) the significance of BU for financial governance in the EU, European integration, and the resulting relationship between participating and non-participating Member States.

Professor Takis Tridimas

Chair of European Law

Director, Centre of European Law

The Dickson Poon School of Law

King's College London

TOPIC 2

PRIVATE ENFORCEMENT AND COLLECTIVE REDRESS IN EUROPEAN COMPETITION LAW

Private enforcement in European competition law is a concept designed to protect market participants and, in this regard, also promote the attainment of the traditional primary operational objective of the European Union, namely the establishment and functioning of the internal market (as specified in Article 3 TEU, Article 26 par. 2 TFEU and Protocol 27 on the internal market and competition). Antitrust law, as part of this system that ensures competition is not distorted in the internal market, plays a pivotal role in securing the functioning of the transnational market freedoms. While private enforcement of European antitrust law, in connection with national private law, is not a complete novelty, the question of whether effective enforcement requires a more uniform approach in private law is gaining momentum. In this multinational context of substantive law and jurisdiction, the issue of using the instrument of collective redress constitutes a rather new element. The relevance of Article 101 TFEU to the validity or invalidity of contracts is already explicitly expressed by the voidness provision of Article 101 (2) TFEU. For a long time, the possibility of a private action for damages under national private law in cases of Articles 101 and 102 TFEU infringements had been recognized as a consequence of their respective direct applicability. However, in practice, this means of enforcement gained more attention and significance only after the ECJ decisions of “Courage/Crehan” (C-453/99) and “Manfredi” (C-295/04).

This jurisprudence caused the European Commission to start with various preparations for legislation. Eventually, in November 2014, the European Parliament and the Council adopted the Antitrust Damages Directive (2014/104/EU), in order “to ensure that anyone who has suffered harm caused by an infringement of competition law by an undertaking or by an association of undertakings can effectively exercise the right to claim full compensation for that harm from that undertaking or association” and to ensure equivalent protection throughout the Union for anyone who has suffered such harm. The directive contains detailed provisions that must be implemented in national law by December 27, 2016, while leaving the Member States with the task of finding adequate solutions for a panoply of connected questions. These include, e.g., the quantification and estimation of damages; procedural mechanisms to avoid, on the one hand, overcompensation and, on the other hand, the elimination of liability of the infringer as a consequence of recognizing the passing-on defence; causality (including possible concepts such as imputability, adequacy, objective predictability, etc.); culpability; joint and several liability; the recourse of one co-infringer against the other; the liability of an immunity recipient in this context; coordination in cases of damages by claimants from different levels of the supply chain; the relationship and cooperation between courts and competition authorities; the binding effects of decisions of competition authorities; disclosure and confidentiality; and the effects of consensual dispute resolution. Issues of private enforcement of European competition law that are not connected with actions for damages, such as the legal ramifications of the voidness of cartel agreements, injunctive relief or forfeiture of profits, or which relate to collective redress, are beyond the scope of Directive 2014/104/EU. They are in principle left to the national legal orders without prejudice to the principle of equivalence.

However, especially for collective redress, an additional step has been taken by the European Commission. In order “to facilitate access to justice, stop illegal practices, and enable injured parties to obtain compensation in mass harm situations caused by violations of rights granted under Union law, while ensuring appropriate procedural safeguards to avoid abusive litigation,” the European Commission Recommendation 2013/396/EU establishes common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law. Although this measure is neither binding nor specifically designed for private enforcement of rights flowing from infringements of European antitrust law, it lists competition “amongst those areas where the supplementary private enforcement of rights granted under Union law in the form of collective redress is of value.” Because Member States should implement the principles of the Recommendation (by July 26, 2015 at the latest), Member States face the (recommended) task of finding appropriate solutions. The range of relevant questions consists of: the clarification of legal standing to bring a collective action; rules on funding and the cost burden; the dissemination of information about the intention to bring a collective action; the constitution of the claimant party; the exclusion of lawyers´ remuneration as an incentive to litigation that is unnecessary from the point of view of the interest of any of the parties; the establishment of procedural safeguards against abusive litigation in mass harm situations; the facilitation of damage claims by indirect purchasers in cases of infringements of European competition law; and the promotion of follow-on actions; the availability of a single collective action in a single forum in cases in which a dispute concerns persons from several Member States.

These strands of development on Union level (requirements of primary law, Directive 2014/104/EU and Recommendation 2013/396/EU) cannot succeed without taking into consideration the national legal setting and its practical experiences as well as the creative solutions of national law. The exploration of these elements and the assessment of the respective roles of Union law and national law in the field of private enforcement is the task of this working group.

Professor Peter‑Christian Müller‑Graff

Director of the Institute for European Law

University of Heidelberg

 

TOPIC 3

DIVISION OF COMPETENCES AND REGULATORY POWERS BETWEEN THE EU AND THE MEMBER STATES

The topic of division of competences has at least three dimensions, which will be explored on the basis of the questionnaire.

First, the issue of division of powers requires a good understanding of the legal scope of the principle of conferral and of the conceptual and operational differences between EU competences and the scope of the Treaties. It seems that the way in which those concepts are understood varies from one country to another, not only regarding the political discourse, but also with regard to case law and scholarship: it is necessary to understand how these variations with regard to treaty concepts as understood and applied by the EU institutions and in particular by the Court of Justice are likely to lead to problems, especially in the context of the so called ‘dialogue between judges’ and as part of the scholarly exchanges between different countries and between legal disciplines within a country (EU law, administrative law, civil law, constitutional law, criminal: la, etc.).

Second, it is desirable to review the perceptions in Member States and institutions with regard to the current balance of powers and responsibilities between the Union and Member States, between exclusive and shared competences, and between the latter and coordinating, supporting or supplementing competences – i.e. the balance as resulting from the Treaty of Lisbon, in institutional practice and in the case law of the Court.

Third, it is necessary to explore the legal issues arising from the type of executive federalism that is being practiced by the Union, in which implementing powers belong mainly to Member States even if when the Union exercises its legislative competences - be they exclusive, shared, or coordinating, supporting or supplementing competences. Specifically there is a need to study the problems resulting from the coexistence of actions of the institutions and bodies of the Union – especially of the Commission - and actions of the authorities of the Member States in the implementation of the law and policies of the Union. The division of functions and actions between EU authorities and central and decentralized authorities of Member States will be studied in particular in the field of EU budget funds – amongst others structural funds.

Rapporteurs are requested to try to answer all numbered questions. Further questions that are embedded in the commentary should help better understanding the numbered questions. When the questionnaire refers to ‘your country’s scholarship’ it may include literature in other languages than your own one, especially English language literature that currently used in your country.

Professor Jacques Ziller

Full Professor of European Union Law

University of Pavia (Italy)

Faculty of Political Sciences