Composition and Qualifications of Credit Institutions’ Board of Directors: European Requirements and the Principle of Proportionality

2021 ◽  
Vol 18 (1) ◽  
pp. 76-106
Author(s):  
Vassilios D. Tountopoulos
Keyword(s):  
Board Of Directors ◽  
Burden Of Proof ◽  
Case Law ◽  
Public Interests ◽  
The Public ◽  
Informal Assessment ◽  
Principle Of Proportionality ◽  
The Stability ◽  
The Eu ◽  
Credit Institutions

Abstract The aim of this article is to illustrate the importance of the EU principle of proportionality for the application of the rules governing the composition and qualifications of credit institutions’ Board of Directors. The view taken is that the principle of proportionality as enshrined in the EU legislation and the case law can safeguard both the private and the public interests in favour of the smooth functioning of the banks and the stability of the financial system. Under this perspective, this article discusses special issues such as conditional approval, informal assessment, allocation of the burden of proof and judicial review.

Public Enforcement of EU Antitrust Law: A Circle of Trust?

2019 ◽  
Vol 12 (1) ◽  
pp. 127-154
Author(s):  
Naida Dzino ◽  
Catalin S. Rusu
Keyword(s):  
Institutional Design ◽  
Building Blocks ◽  
Case Law ◽  
Soft Law ◽  
Antitrust Enforcement ◽  
Public Enforcement ◽  
The Public ◽  
Core Elements ◽  
Multi Level ◽  
The Eu

The concept of trust is key to effectively enforcing the EU antitrust prohibitions in the ECN multi-level administration context. The manifestation of this concept is identified at different stages of the public enforcement system, where the Commission and the NCAs share the enforcement workload and assist each other's actions. Various EU legislative, soft-law and case-law landmarks have progressively contributed to developing this idea of trust, culminating with the adoption of Directive 2019/1, which aims to render NCAs as more effective enforcers of Articles 101 and 102 TFEU. In this paper, we intend to determine whether the Directive furthers the trust already established in the last fifteen years of enforcement experience. We first track the development of the trust in the NCAs' EU antitrust enforcement work and assesses the building-blocks on which trust is shaped. Next, we evaluate the Directive's core elements (dealing with institutional design, enforcement and sanctioning powers, leniency, mutual assistance, etc.), in order to gauge their trust-enhancing potential, and to test whether the Directive correctly follows through the EU hard-, soft-, and case-law. We also look into any remaining enforcement gaps, which may undermine the trust between the European antitrust enforcers, and consequently the Directive's core objectives.

On Balancing Foreign Investment Interests with Public Interests in Recent Arbitration Case Law in the Public Utilities Sector

2012 ◽  
Vol 11 (1) ◽  
pp. 47-76 ◽  
Author(s):  
Attila Tanzi
Keyword(s):  
Foreign Investment ◽  
Legal Reasoning ◽  
Well Being ◽  
Case Law ◽  
International Investment ◽  
Public Utilities ◽  
Public Interests ◽  
The Public ◽  
Special Regard ◽  
The Relationship

Abstract This article addresses the relationship between the protection of foreign investment and the protection of public interests of host States, with special regard to the public utilities sector when privately operated by foreign investors. It primarily focuses on an assessment of the scope of the concept of public interest particularly in the light of the interpretative developments concerning national security and general well-being that may be affected by foreign investment. The article highlights the trend gradually emerging from the recent international investment arbitration case law towards the harmonization between foreign investment interests and local public interests. It considers the policy rationale behind such a trend, as well as the legal reasoning and principles, with special regard to due diligence and proportionality, which may possibly enhance it.

Case-Law Development between Path Dependence and Legal Uncertainty

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Path Dependence ◽  
Case Law ◽  
European Law ◽  
Eu Law ◽  
Legal Uncertainty ◽  
Path Dependent ◽  
The Stability ◽  
Private Actors ◽  
The Eu

Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.

scholarly journals La reforma constitucional y la gobernanza económica de la Unión Europea

2012 ◽  
pp. 59
Author(s):  
Antonio Bar Cendón
Keyword(s):  
Golden Rule ◽  
European Council ◽  
The Public ◽  
Growth Pact ◽  
Legal Provisions ◽  
Europe 2020 ◽  
The Stability ◽  
Excessive Deficit Procedure ◽  
The Eu ◽  
Made In

Este artículo analiza las medidas de reforma adoptadas en el marco de la UE y de sus Estados miembros a efectos de introducir y consolidar en sus respectivos ordenamientos jurídicos el principio básico de estabilidad financiera o presupuestaria, conocido comúnmente como la "regla de oro "; es decir, la exigencia de que toda la administración pública, en sus diferentes niveles de gobierno, mantenga de manera permanente una situación presupuestaria de equilibrio o de superávit. Así, primer lugar, se analizan los precedentes en el Derecho constitucional comparado de esta exigencia constitucional y luego las reformas de los textos constitucionales realizadas en Alemania, España e Italia, pero también la frustrada reforma constitucional iniciada en Francia. y, en segundo lugar, se analizan las reformas en la gobernanza económica de la UE, realizadas tanto a través de documentos político-estratégicos, que establecen el marco general y los principios básicos de actuación, como a través de textos jurídicos que los desarrollan y aplican en la práctica. Así, el artículo analiza en detalle documentos político-estratégicos como el Pacto de Estabilidad y Crecimiento, Europa 2020, el Semestre Europeo, el Pacto por el Euro Plus; y las previsiones jurídicas del Art. 126 del TFUE y el procedimiento aplicable en caso de déficit excesivo; la reforma del Art. 136 del TFUE y el Mecanismo Europeo de Estabilidad; el paquete de seis medidas jurídicas conocido como "The Six Pack"; y la propuesta de nuevas medidas jurídicas de refuerzo en este terreno conocido como "The Two Pack". El artículo, finalmente, analiza también el Tratado de Estabilidad, Coordinación y Gobernanza en la Unión Económica y Monetaria, concluido al margen del ordenamiento jurídico de la UE, y las más recientes propuestas del Consejo Europeo de 28-29 de junio de 2012, sobre un nuevo "Pacto por el Crecimiento y el Empleo" y el informe del Presidente del Consejo Europeo titulado "Hacia una auténtica Unión Económica y Monetaria".This article analyzes the reforms adopted by the EU and its Member States addressed at introducing and consolidating in their respective legal systems the basic principle of financial or budgetary balance, commonly known as the "golden rule "; that is to say, the requirement by which the whole of the public administration, at its different levels of government, must keep on a regular basis a situation of balanced budget or with surplus. In this line, this article analyzes firstly the precedents of this legal requirement in comparative constitutional law and then the amendments made by Germany, Spain and Italy on their constitutional texts, but also the frustrated constitutional reform initiated in France. And secondly, this article analyzes the reforms made in the economic governance of the EU by means of both politicalstrategic documents - which establish the general framework and the basic governing principles - and legal provisions which develop and implement them. In this respect, this article analyzes political-strategic documents such as the Stability and Growth Pact, Europe 2020, the Euro Plus Pact; and the legal provisions of Art. 126 of the TFEU and the excessive deficit procedure; the amendment of Art. 136 of the TFEU and the European Stability Mechanism; the set of six legal instruments commonly known as "The Six Pack ": and the new reinforcing set of two legal instruments - still under discussion - commonly known as "The Two Pack ". Finally, this article analyzes also the Treaty on Stability, Coordination and Governance in the Economic and Monetary Un ion, agreed outside the framework of the EU legal system, and the recent proposals adopted by European Council of June 28- 29, 2012, concerning a new "Compact for Growth and Jobs" and the President of the European Council report "Towards a Genuine Economic and Monetary Union ",

THE PUBLIC INTEREST IN PRIVATE NUISANCE: COLLECTIVES AND COMMUNITIES IN TORT

2015 ◽  
Vol 74 (2) ◽  
pp. 329-358 ◽  
Author(s):  
Maria Lee
Keyword(s):  
Significant Role ◽  
Public Interest ◽  
Case Law ◽  
Private Law ◽  
Public Interests ◽  
Scholarly Literature ◽  
The Public ◽  
Definition Of ◽  
Regulatory Decisions

AbstractThe relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.

scholarly journals The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core

2018 ◽  
Vol 14 (2) ◽  
pp. 332-368 ◽  
Author(s):  
Maja Brkan
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
Multi Level ◽  
Principle Of Proportionality ◽  
The Eu

Essence of fundamental rights – Article 52(1) of the Charter – Multi-level protection of fundamental rights in Europe – Sources of essence – European Court of Justice case law on ‘very substance’ of fundamental rights – Constitutional traditions common to the Member States – European Court of Human Rights – Court of Justice of the EU – Schrems – Principle of proportionality – Absolute theory – Relative theory – Classification of interferences with essence – Objective interference – Subjective interference – Absolute rights – EU methodology for determination of interference with essence

scholarly journals Transparency in EU Trade Policy: A Comprehensive Assessment of Current Achievements

2021 ◽  
Vol 9 (1) ◽  
pp. 261-271 ◽  
Author(s):  
Axel Marx ◽  
Guillaume Van der Loo
Keyword(s):  
Trade Policy ◽  
Case Law ◽  
Two Dimensions ◽  
Public Access ◽  
The European Union ◽  
Implementation Phase ◽  
The Public ◽  
Institutional Actors ◽  
The Eu

<p>The EU trade policy is increasingly confronted with demands for more transparency. This article aims to investigate how transparency takes shape in EU trade policy. First, we operationalize the concept of transparency along two dimensions: a process dimension and an actor dimension. We then apply this framework to analysis of EU Free Trade Agreements (FTAs). After analyzing transparency in relation to FTAs from the perspective of the institutional actors (Commission, Council and Parliament), the different instruments and policies that grant the public actors (civil society and citizens) access to information and documents about EU FTAs are explored by discussing Regulation 1049/2001, which provides for public access to European Parliament, Council and Commission documents, and the role of the European Ombudsman. The article is based on an analysis of official documents, assessments in the academic literature and case-law of the Court of Justice of the European Union. The ultimate aim is to assess current initiatives and identify relevant gaps in the EU’s transparency policies. This article argues that the EU has made significant progress in fostering transparency in the negotiation phase of FTAs, but less in the implementation phase.</p>

scholarly journals EU Courts’ review of decisions imposing fines in EU state aids cases

2013 ◽  
Vol 61 (4) ◽  
pp. 1017-1021
Author(s):  
Jana Mikušová
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Historical Background ◽  
The Rule Of Law ◽  
Secondary Sources ◽  
Comprehensive View ◽  
Principle Of Proportionality ◽  
State Aids ◽  
The Eu

The aim of this article is to provide a comprehensive view on the application of the principle of proportionality in the Commission’s decisions imposing fines in the area of state aids as well as the EU courts exercise of the jurisdiction over these decisions.The primary and secondary sources of law and the case law would be investigated in this article. The author would like to briefly describe the historical background of the application of the principle of proportionality and by analysing the case law follow the evolvement of the application of the principle. The study should bring the answer on question whether the rule of law (in this case principle of proportionality) is safeguarded enough by the courts review of the decisions imposing fines.

scholarly journals Privacy Protection and Genetic Research: Where Does the Public Interest Lie?

2014 ◽  
Vol 51 (3) ◽  
pp. 471 ◽  
Author(s):  
Ubaka Ogbogu ◽  
Sarah Burningham
Keyword(s):  
Public Interest ◽  
Genetic Information ◽  
Genetic Research ◽  
Case Law ◽  
Personal Health ◽  
Public Interests ◽  
Policy Regimes ◽  
The Public ◽  
Privacy Law ◽  
Individual Privacy

There is significant public interest in the outcomes of genetic research. However, there is also a great deal of concern that genetic research and associated realms will foster the use and disclosure of personal health and genetic information in ways that undermine protected privacy interests. This article proposes that a balance must be struck between legitimate public interests implicated in the collection, use, and disclosure of genetic information for research purposes. The article also explores the tension between the public interest in genetic research and the protection of individual privacy in relation to different policy regimes and reviews existing statutory rules, case law, and administrative decisions on the public interest exception in Canadian privacy law.

scholarly journals To Filter or Not to Filter? That Is the Question in EU Copyright Reform

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fundamental Rights ◽  
Digital Environment ◽  
Negative Externalities ◽  
Liability Rule ◽  
The Public ◽  
Alternative Proposal ◽  
Intermediary Liability ◽  
The Eu

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures — such as content id technologies — to prevent copyright infringement on online platforms. This proposal is included in Article 13 — and accompanying Recitals — of the European Commission’s Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcoming of this proposed reform, which might fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law — such as GSMedia, Ziggo and Filmspeler — struggling with the notion of communication to the public in the digital environment. It highlights systemic inconsistencies between the traditional knowledge-and-take-down negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy of filtering — and monitoring — measures within a fundamental rights perspective by considering proportionality between property rights’ enforcement and competing fundamental rights — such as freedom of expression, freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatical engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy’s virality, while limiting negative externalities on users’ rights.

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