La Unión ante la crisis
Jose M. de Areilza
6 de marzo, 2009
Entre las distintas propuestas para hacer frente a la crisis económica, el fortalecimiento del proyecto europeo es una de las que tienen más sentido. Las decisiones del reciente Consejo Europeo dando los primeros pasos para que exista una supervisión financiera común apuntan en esta dirección esperanzadora. Sin embargo, en general la crisis está llevando sobre todo hacia un repliegue de emergencia hacia lo estatal, como si no nos gobernásemos en buena medida desde Bruselas. La negativa a aprovechar a fondo el sistema comunitario está sin duda relacionada con el hecho de que la Unión no atraviesa su mejor momento político y está saliendo de unos años difíciles.
Conviene recordar que las instituciones, normas y principios europeos han contribuido seriamente a la prosperidad compartida del continente durante más de medio siglo. Las autoridades de Bruselas gestionan junto con los gobiernos nacionales una combinación hasta ahora exitosa de libertad económica y protección social. Los principios de libre competencia, no discriminación y eliminación de barreras a la libre circulación de factores de producción conforman una verdadera «constitución económica» que ha dado resultados muy positivos y ha hecho más transparente y racional cualquier intervención pública en la economía. La Unión Europea es un límite permanente y eficaz contra el proteccionismo, esa «filosofía de guerra» en palabras de Ludwig von Mises.
Además la Unión posee una notable capacidad de aprendizaje e innovación en el diseño de políticas comunes en el mercado interior, y goza de una visión de conjunto privilegiada sobre el espacio económico comunitario. También posee un potencial aún no utilizado a fondo para proyectar los intereses comunes europeos en el mundo. (more…)
Class actions in Europe – the fear of the unknown?
Charlotte Leskinen
December 12, 2008
Recently the European Commission published a Green Paper on Consumer Collective Redress which provides options for how to facilitate redress in situations where large numbers of consumers have been harmed by a single trader’s practice which is in breach of consumer law. A survey requested by Directorate-General for Health and Consumers suggests that 76% of consumers in the EU would be more willing to defend their rights in court if they could bring an action together with other consumers.
Breaches of the EC antitrust rules fall outside the scope of the Green Paper, but the recent White Paper on Damages actions for breach of the EC antitrust rules also proposes the introduction of collective antitrust damages actions, namely representative actions, which would be brought by qualified entities on behalf of some or all of their members, and opt-in actions in which victims expressly decide to combine their individual claims into one single action. However, similar to the field of consumer law, it seems that there is a certain degree of hostility in Europe towards introducing class actions for damages that would be based on an opt-out mechanism, i.e. the possibility of bringing claims also on behalf of unidentified class members. It is a common fear that the introduction of class actions would lead to the adoption of a US-style litigation culture. For instance, the EU Consumer Affairs Commissioner Meglena Kuneva has expressly ruled out the US-style system of class actions for damages.
But also many antitrust practitioners and academics are strongly opposed to class actions. They fear that frivolous class actions might be brought and that defendants will be forced to settle in order to avoid paying large damages awards. Other features of the US civil procedure, such as jury-trials and treble damages, which can but do not always accompany a class action, are also often perceived as an inherent part of the class action. In fact, in the US, treble damages may not only be sought in antitrust class actions, but are also the result of a successful individual action seeking damages for an antitrust violation. In addition, it is often conveniently forgotten that abuses of the class action device mainly occur in other fields of law, while the complexity and uncertainty in the outcome of antitrust class actions tend to limit the abuses.
Privacy law and street views
José M. de Areilza
November 17, 2008
I have just read a very interesting article in the International Herald Tribune about the problems Google is having in different European countries to introduce its new mapping service, called Street View. This new product offers all kinds of photographs of buildings and addresses. The problem is of course the use of personal images or property without prior authorization. Privacy laws in Germany and Switzerland do not allow this new new thing, but more relaxed standards in France, Italy and Spain so far have allowed it.
Here are some questions for data protection experts, public lawyers and informed citizens who read this blog (being only one of the three is OK): Isn’t this a matter for an European common Standard? Why are so different the sensitivities in the North and South of Europe? Is strict protection of privacy a disincentive for technological innovation and investment in the our continent, like the above mentioned multinational company has hinted?
Solving the crisis without the European Union?
José M. de Areilza
October 23, 2008
It is too early to know if the measures taken by governments everywhere will be enough to create confidence and solve the credit crisis. But what is already clear is that the EU has not been an important actor so far in the global attempt to rescue the system. Moreover, these past weeks national governments have used the EU to back national measures already taken by them, often in rivalry with each other. They have ignored largely EU institutions, EU procedures and norms and EU principles governing EMU and the internal market. Intergovermentalism and improvised directorates have prevailed over the “Community method”.
With Sarkozy at the helm and reconnecting with the worst French “dirigisme”, there is even talk in Europe about creating national Sovereign Wealth Funds to compete with the SWF’s from China, South East Asia, Russia or other oil countries, even though normally these funds are opaque, politicized and unaccountable structures, and do not meet very basic corporate governance standards. Sarkozy’s suggestion to stay as super-president of the Eurogroup -why not life tenure as Préfet of G-4?- is also a way to contest the legitimate right of the Czech Republic to hold the rotating presidency of the Council from January 1, 2009.
The worst of all is that the EU system of economic governance needs to be strengthened at least to offer common financial supervision and to speak with one voice on international monetary issues. But future transfers of power to the EU seems to be out of the question, after we have seen who and how we decide on the exceptional moment.
What is an “European bank” and who decides who decides?
José M. de Areilza
October 3, 2008
The global financial crisis is putting the EU system of economic governance to a serious test. The single currency was launched without the rest of the building blocks of an economic federal government. Probably more economic centralization and central coordination was needed but it did not happen after the euro was created on May 2, 1998 nor in the subsequent years -finishing the economic architecture was not even part of the failed constitutional project.
Hence, the supervision and inspection of the financial system is still in the hands of Member States and the EU budget never grew to include enough European resources to use in an European wide /global crisis like the present one. Structural reforms also have been national matters, once the 2000 Lisbon Agenda has faded away. Let’s face it, we have an incomplete system of economic governance in a rather successful single market that is based on non discrimination, freedom of establishment and free movement of capital, and that is of course part of the global financial market.
So, in the present situation of financial crisis, do we still call national banks those who operate in the single market but do it largely according to national rules? Or do we treat them as European banks and seek a common European policy that takes into account all the “negative externalities” out there? The answer is important because consumer protection and guarantee of deposits will depend on it and there are important differences among national legislations, institutional designs and economic means to eventually rescue financial institutions and protect citizens interests.
The Irish have gone their way and irritated other Member States and the EU institutions by taking unilateral measures that discriminate between Irish and non Irish banks, a kind of an emergency State aid, probably agains the EU norms. But the underlying problem is not the Irish government, is the lack of a European policy that would allow EU political institutions to work with national ones and intervene efficiently in the current crisis, i.e., not taking four years to pass a new directive. Even the US with its well established federal system has had problems coordinating states and federal institutions in this area of economic regulation before the crisis.
The European Arrest Warrant: category and practice
Petra Bard
September 30, 2008
The European Arrest Warrant – a highly controversial instrument from the third pillar – is the subject of the following comment. Although it has been agreed upon – following from the nature of framework decisions necessitating unanimity – by all Member States’ representatives, another branch of government, the judiciary was less satisfied with the piece of EU legislation. Many constitutional challenges attacked the framework decision, and piles of academic papers are addressing these. I am not touching upon the constitutional issues here, I will much rather present a case study that can faithfully demonstrate how poorly the legislators’ original intentions are reflected in some of the rulings that refuse the enforcement of arrest warrants.
Irish citizen Ciaran Tobin resided in Hungary, working as the director of an insurance company when on 9 April, 2000, he ran over two small children in the Hungarian village of Leányfalu. Guarded by his grandmother, one of the victims was standing on the sidewalk, with the other victim, his sister sitting in her pram next to him, when Ciaran Tobin’s car traveling at a speed between 75-80 km/h way above the allowed speed-limit knocked down the children, who both died on the spot. Although Ciaran Tobin’s travel documents were taken away during the criminal process, he eventually received his passport back upon the request that he wished to go home to attend the wedding of his wife’s sister. He deposited the sum of HUF 500,000 in the form of a so-called insurance, as prescribed in the Hungarian Criminal Procedural Code. He authorized his lawyer to receive his official letters and the trial went on in his absence.
It is unclear why the Hungarian authorities decided to permit Tobin to leave the country on the grounds of the above given circumstances, in view of the fact that during the period in question there was no extradition agreement between the two countries, on the basis of which Ireland would have been obliged to extradite the defendant to Hungary. (more…)