European Law Commons^™

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the …

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following …

Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel

Faculty Scholarship

The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …

The Specter Of Civil Law Clawback Actions Haunting U.S. And Uk Charitable Giving, Aaron Schwabach

Faculty Scholarship

No abstract provided.

Transfer Pricing: The Cup -- Case Studies: Australia, Us, Uk, Norway And Canada, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

All transfer pricing regimes give priority to the comparable uncontrolled price (CUP) method. Despite declarations that transfer pricing is a search for the “best method” or “most appropriate method,” all systems concede that the search is over when an exact comparable is found because a CUP is preferred over all methods. The best CUP is an exact CUP because it provides an arm’s length price that is not calculated. The price emerges directly from the comparison.

CUPs have traditionally been the most commonly applied method for both taxpayers and the government. They are the judicial gold standard. They hold sway …

Of Charities And Clawbacks: The European Union Proposal On Successions And Wills As A Threat To Charitable Giving, Aaron Schwabach

Faculty Scholarship

In the United Kingdom, and to a lesser extent the United States, an inter vivos gift, once given, cannot be reclaimed by the giver's heirs. In civil law countries the situation is quite different: Not only spouses, but issue and in some cases even ascendants, are entitled to a forced share of a decedent's estate--and these forced shares are assessed against a notional “estate” that includes the testator's inter vivos gifts. If the total of these forced shares exceeds the amount actually available in the decedent's estate at death, the recipients of the gifts, or their successors, may be forced …

Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels

Faculty Scholarship

Downloadable Document is in German

Summary

1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.

2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization …

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Use And Enjoyment Of Intangible Services: The German, Austrian, Danish And Estonian Vat Derogations, Richard Thompson Ainsworth

Faculty Scholarship

When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.

In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …

Use And Enjoyment Of Intangible Services: The Czech Republic's Vat Derogation, Richard Thompson Ainsworth

Faculty Scholarship

On January 1, 2009 a minor change in the Czech Republic VAT became effective. A use and enjoyment standard was added to modify the sourcing of certain service transactions. Traditional proxy-based rules, derived from Articles 43 and 56(1) of the Recast VAT Directive (RVD), are set aside by this modification when the customer receiving the services has a permanent establishment (PE) in the Czech Republic. The modification is authorized by RVD 58.

This change is a limited adoption of RVD 58(b), and functions like a full force of attraction principle in direct taxation. If caught by these rules, transactions that …

Quebec's Module D'Enregistrement Des Ventes (Mev): Fighting The Zapper, Phantomware And Tax Fraud With Technology, Richard Thompson Ainsworth

Faculty Scholarship

On January 28, 2008 the Quebec Minister of Revenue, Jean-Marc Fournier, announced that by late 2009 the MRQ will begin testing a device, the module d'enregistrement des ventes (MEV) that is projected to substantially reduce tax fraud in the restaurant sector. By 2010 or 2011 MEVs will be mandatory in all Quebec restaurants, where they will assure accuracy and retention of business records within electronic cash registers (ECRs).

This paper moves beyond a discussion of the variety of sales suppression programs in use - zappers and phantom-ware. The concern here is on enforcement efforts, particularly the MEV. The intent is …

Mtic (Carousel) Fraud: Twelve Ways Forward; Two Ways 'Preferred' - Has The Technology-Based Administrative Solution Been Rejected?, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a co-ordinated strategy to improve the fight against fiscal fraud [COM(2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with MTIC (Missing Trader Intra-Community) or carousel fraud. To this end the Commission hosted a conference: Fiscal Fraud - Tackling VAT Fraud: Possible Ways Forward. The March 29, 2007 conference was constructed …

Learning From Difference: The New Architecture Of Experimentalist Governance In The Eu, Charles F. Sabel, Jonathan Zeitlin

Faculty Scholarship

This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, good water status, a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their …

Constitutional Lessons From Europe, George A. Bermann

Faculty Scholarship

Given his range of interests, a tribute to Francis Jacobs could appropriately address just about any area of contemporary legal concern. But Francis Jacobs is one whose writings on and off the bench have, for an American, been especially illuminating, due to his unique capacity to translate fundamental issues of European constitutional law into terms that we can grasp. And so, notwithstanding the quantity of writing on the recent constitutional adventure of the European Union ("EU") that has already accumulated, I add yet one more set of reflections on this theme in Francis Jacobs' honor, this time on the possible …

Lochner In Europe: A Comment On Keith Whittington's Congress Before The Lochner Court Symposium: Lochner Centennial Conference, Daniela Caruso

Faculty Scholarship

In 1904, St. Louis, Missouri was the place to go. In conjunction with its spectacular world's fair, the city also hosted the Universal Congress of Lawyers and Jurists, known in academic circles as the foundational event of American comparative law.1 Within a big screen entirely devoted to the Lochner2 centennial, this comment aims at opening a window on another centennial - the hundredth anniversary of comparative law in the United States.Though inspired by the Universal Congress, this comment does not partake in the celebratory spirit of anniversaries.3 Far from espousing a romanticized or universalist conception of comparative law, these pages …

Comparative Law In The New European Community, George Bermann

Faculty Scholarship

As a member and leader of America's immediate post-war generation of comparative lawyers, Rudolf Schlesinger viewed the then European Economic Community (Community) as an unprecedentedly important arena for the theory and practice of comparative law. He was right in doing so. As we know, the Community initially faced the prospect, among other things, of harmonizing the laws of six continental European countries, representing distinct branches of the European civil law tradition. Then, within a dozen years, the Community expanded to pick up members that stood on the outskirts of the European civil law tradition (Denmark) and squarely within the common …

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

Taking Subsidiarity Seriously: Federalism In The European Community And The United States, George A. Bermann

Faculty Scholarship

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as "inelegant . . .Eurospeak," "the epitome of confusion," and simple "gobbledegook." It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an "alibi," and more specifically as "a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been …

Subsidiarity And The European Community, George Bermann

Faculty Scholarship

The notion of subsidiarity in European federalism labors from all manner of burdens. It seems elusive by nature, commentators claiming that they do not know what subsidiarity means or, if they do, that they do not see in it anything new. At the same time subsidiarity has been presented at least in some quarters as a panacea for the Community's current malaise. It clearly is not that. Even if subsidiarity has not been oversold, it is almost certainly overexposed, a condition that the present Article is unlikely to cure.

My purpose in this Article is simply to help make some …

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

Integrating Governmental And Officer Tort Liability, George A. Bermann

Faculty Scholarship

The legislative and judicial dismantling of sovereign immunity is among the more significant and celebrated reforms of recent American administrative law. In many instances, this development has given those seeking damages for wrongful governmental action their first and only defendant. Even in situations in which litigants already had a cause of action against individual public officials, making the government amenable to suit has enhanced the chances of actual recovery, since officials often lack the means to satisfy judgments rendered against them. The immunity from liability enjoyed by public officials also has undergone a complex series of changes. Though still in …