bluuebunny/crossref_metadata_2025_split huggingface dataset:
The Real (New) Deal: Levelling the Odds for Consumer-Litigants: On the Need for a Modernization, Part II
Authors: Leone Candida , Van Duin Joanna M.L. 
Published: April 2022

With its New Deal proposals, the European Commission aimed to secure that all consumers ‘fully benefit from their rights under Union law’. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonization’. The identified shortcomings, we claim, show that limited harmonization of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonization should engage with.
justiciability of EU consumer rights, procedural harmonization, consumer redress, ex officio application of EU consumer law, effective judicial protection, enforcement
Compensatory Collective Redress for Low Value Consumer Claims in the EU: A Reality Check
Authors: Ioannidou Maria 
Published: April 2022

Taking stock of the developments in the field of collective redress at EU level, this article seeks first to identify the reasons impeding the adoption of compensatory collective redress for low value consumer claims. Second, it proposes an exploratory hypothesis, which can aid in reaching agreement on effective collective redress instruments. With respect to the impeding reasons, the article argues that past policy discussions have largely disregarded the enforcement dimension and the potential of such actions to not only cater for the effective enforcement of individual rights but also – and most importantly – contribute to the effective enforcement of EU law. In addition, past debates have been guided by a misplaced preoccupation against abusive litigation. In order, to overcome these impeding factors, the article discusses ‘regulatory honesty’ as an instrument that can help in achieving agreement and guide Member States to adopt effective mechanisms.
collective redress, low value consumer claims, effective enforcement
The Italian Class Action Reform: A Redesigned Tool beyond Consumer Law
Authors: Piletta Massaro Andrea 
Published: April 2022

Given the globalized scale of the current economic system, effective collective redress mechanisms represent a fundamental tool for consumers and citizens. While in the United States collective actions constitute a common instrument, in the European context their development has been more complex. After a Recommendation issued by the European Commission in 2013, several models have been adopted or reformed across Europe. The regulatory competition approach has been preferred in respect of the simple harmonization of the several national rules. In particular, the French system adopted a completely new tool, the action de groupe, in 2014, while in the UK an option for opt-out collective actions has been recently introduced. The debate over reform of collective redress has also flourished in Italy, leading to the adoption of Law No. 31 of 2019, which will enter into force in November 2020 and will completely redesign the Italian collective action model. This reform has broadened the scope of such a remedy, which has also been made available outside the consumer law field. Moreover, the opt-in system has been strengthened, by allowing adherents to join the claim after the decision on the merits issued by the court. The latter solution embodies a transplant of the action de groupe. In the meantime, the European Union has reawakened its interest in the collective redress field and has drafted a directive proposal, which was approved by the Council of the EU in November 2019. This article will analyse the new Italian reform in a comparative perspective with the French model.
collective action; class action; collective redress; consumers; damages; tort law; Italy; Italian law; France; French law; reform; compensation; comparative law; European Union.
Abuse of a Dominant Position and Public Policy Justifications: A Question of Attribution
Authors: Brisimi Vasiliki 
Published: April 2022

It is an optimal way of analysis not to permit public policy justifications under Article 102 TFEU advanced by dominant undertakings. The reason is that there is always the potential for state involvement in the public interest to occur, triggered, in part, by the incitement of dominant undertakings as part of the democratic processes.
Claims based on public policy justifications have never been shown to be genuine, as an evidential matter, but, rather, have been strategically used in litigation, whereas there is exceptionally little case law that finds incitement to public authorities to act as an abuse of rights. In addition, there is added-cost in terms of legal analysis if one permits, in principle, public policy justifications under Article 102 TFEU, since competition law analysis may potentially be distorted in the majority of cases, as has already happened in the case of margin squeeze abuse.
Genuine public policy justifications are more mythical than real, and given the potential for state involvement, academic debate and reasoned Court judgments should, instead, elaborate on the issue of attribution of the market-distorting effect to the undertaking or the state.
The Rise of Sovereign Wealth Funds (SWFs) and the Protection of Public Interest(s): The Need for a Greater External and Internal Action of the European Union
Authors: Gallo Daniele 
Published: April 2022

This article focuses on the so-called ‘sovereign investors’ (i.e., sovereign wealth funds (SWFs) and state owned enterprises (SOEs)). It is based on the assumption that sovereign investment has become a major – albeit controversial – element in emerging patterns of global governance in this century. At the heart of the paper lies the need that sovereign investors shall be regulated by pursuing a fair balance between protection of general/public interests and attraction of foreign capital.
The essay deals with the main concerns related to the rise of SWFs. In this respect, the principal argument implied therein is that the quest for an equilibrium between economic benefits deriving from the entry of SWFs in the EU market and the protection of national as well as European strategic/sensitive sectors must be reached at the EU level rather than solely at the national level and that, in doing so, the EU must be more activist and bolder.
The EU should give law a central role, regarding the market as an inherently political, institutional and social construct, rather than a self-referential locus that depends on its internal laws and dynamics. This seems even more urgent when market actors that, at least on paper, should be politically unbiased market-oriented investors, tend to act also as the long arm of State capitalism, that is, of foreign governments wishing to invest abroad in crucial socio-economic sectors and often connected with countries where the rule of law, in its multiple dimensions, is neither sufficiently promoted nor respected.
Regulating Fraud in Financial Markets: Can Behavioural Designs Prevent Future Criminal Offences?
Authors: Hornuf Lars , Haas Georg 
Published: April 2022

This article explores the anatomy of three recent financial scandals and investigates how the legal system has responded to them. Furthermore, it analyses whether behavioural designs can prevent future criminal offenses. The article comes to the conclusion that the social as well as the physical environment can diminish the human propensity to commit a fraud. Moreover, misconduct was often made attractive to fraudsters by means of external rewards. Reforming performance incentives might therefore be an efficient measure to reduce deception in financial markets.
Reprint from the Journal of Risk Management in Financial Institutions, 7(2): 192–201. This version has been slightly updated and modified.
The EFTA Courts Contribution to the Realisation of a Single Market
Authors: Baudenbacher Carl 
Published: April 2022

President Baudenbacher set out the main features of the EEA Agreement and its two-pillar structure in this lecture delivered on the occasion of Mads Andenas’ 60th birthday. The President explained the role of surveillance and judicial control, and the importance of the independence of the EFTA College members and justices of the EFTA Court.
Some immerse themselves in issues of sovereignty but the “beef” of the EEA Agreement is single market law. Single market law is economic law. The EFTA Court in the majority of its cases has faced novel legal questions. Baudenbacher explained how ‘homogeneity’ between the ECJ’s and the EFTA Court’s case law must be reached through discourse, in a dialectic process. He explained different constellations with the ECJ going first or the EFTA Court going first. The EFTA Court’s judicial style is different from that of the ECJ. The symbiotic relationship of the two EEA courts is marked by mutual respect and dialogue fostering the flow of information in both directions, with the EFTA Court regularly cited by the ECJ when interpreting EU law.
Conduct Risk: Meaning, Interpretation and Dissension
Authors: De Pascalis Francesco 
Published: April 2022

Following serious and widespread episodes of misconduct in the financial services industry, regulators, international standard-setting bodies and financial institutions worldwide have been discussing opportune approaches to deal with conduct risk. Identifying, analysing and tackling this risk have become the keywords to make financial firms take proactive steps against a common problem. Significantly, the way misconduct risk is understood will determine the ways for dealing with it properly. Given the incentives and guidelines that regulators and policymakers have so far provided within the conduct risk debate, it is natural to review their appreciation of such a risk. In practice, this paper addresses the question of whether their interpretation constitutes a solid, clear and consistent basis for financial firms’ understanding and management strategies.
Risk, loss, misconduct, conduct risk, consumer protection, market integrity, firmbased definition, operational risk, subset, standalone risk
The Role of Compliance as a ‘Gate-Keeper’ Function in Financial Services: Reality vs Regulatory Conception
Authors: Brener Alan 
Published: April 2022

This paper examines aspects of the role of the compliance department and the compliance officer, in the context of a range of control functions, in firms subject to financial services regulation. The issues and recommendations have global application beyond the UK. The traditional expectation is that the compliance operation advises senior management on the various regulations, and monitors and report adherence to regulatory requirements. However, this paper proposes that the compliance function needs to go further and venture beyond what some may consider its more conventional roles. Additionally, this paper questions the extent boards and regulators can place reliance on the compliance functions and the compliance officer. This will depend on a number of factors including the compliance units’ ‘authority’ within the business, their professionalism, and their ethical attitudes set within the context of the firm’s own cultures.
Financial services, compliance, control functions, regulation, ‘three-lines of defence’, Senior Managers Regime, compliant culture, risk management.
FinTech - Unbearably Lithe or Reasonably Agile? – A Critical Legal Approach from the German Perspective
Authors: Deipenbrock Gudula 
Published: April 2022

The revolutionary disruptive digital transformation in financial markets – a scenario more challenging than the 2007/2008 financial crisis – requires swift, agile but sustainable responses by the law. Mapping and analysing the plethora of legal implications of rapidly further evolving financial technology have gained momentum. The paper aims to contribute to it. Focus is on the German view. The following questions have inspired the analysis: How might FinTech best be defined and its most important manifestations best be systematized for legal purposes? Have the most pressing legal issues been addressed, so far? The paper considers the legal challenges of FinTech as huge, reaching far beyond financial markets. It argues that artificial intelligence and machine learning deserve utmost attention particularly in this context. The paper postulates that the law – being well-equipped to control the complex, constantly morphing risks of financial innovation while allowing exploiting its benefits – shall not just react to but lead the transformation. The present author considers particularly legal academia responsible for continuously steering and shaping a balanced and objective discourse leading to adequate legal responses in the realm of FinTech. It is time to reassert the crucial role of law in times of deep technological change not only in financial markets.
fintech, artificial intelligence, machine learning, insurtech, invest-tech, proptech, regtech
Time to Revisit Capital Maintenance on Profits Distribution: Lesson from Carillion and Beyond
Authors: Xiong Xuedan (Shelly) 
Published: April 2022

This paper aims to reengage the debate about capital maintenance as the regime for restricting the distribution of profits. Two arguments challenging the effectiveness of capital maintenance are made here. The first argument says that fair value accounting applicable to fixed assets creates complications for compliance with capital maintenance in the area of profits distribution. Prior literature has studied the link between fair value accounting and distributability of the revaluation reserve of fixed assets. Little research has been seen, however, relating to the complications this may cause to the compliance of capital maintenance. The second argument says that the effectiveness of capital maintenance as a creditor security mechanism is undermined by the fact that the satisfaction of capital maintenance in relation to profits distribution is not equal to company solvency. To make this argument, I examine the intersection between capital maintenance and accrual accounting principle through both theoretical analysis and a case study of the recent collapse of Carillion plc, and conclude that the intersection gives rise to aggressive accounting, and aggressive accounting creates a situation where capital maintenance is satisfied but company solvency is not. Capital maintenance facilitates aggressive accounting and therefore should be reformed.
Capital maitenance, company solvency, carillion, accrual, fair value, aggresive accounting
The EU Regulation on Screening of Foreign Direct Investment: A Game Changer?
Authors: de Jong Bas , Zwartkruis Wolf 
Published: April 2022

In March 2019, the EU has adopted a Regulation on the screening of foreign direct investment (FDI) which will apply from 11 October 2020. Member States are allowed to use a national screening mechanism for FDI from outside the EU on grounds of widely defined public order or security, including the protection of key technologies. A cooperation mechanism is established between the Member States and the European Commission. The European Commission is authorized to give a non-binding opinion if the FDI affects Union interests.
The Regulation reflects a new attitude of the EU towards FDI, triggered by geopolitical developments especially involving Chinese state-owned enterprises taking over European companies with key technologies. However, the EU’s ambitions are faced by legal and practical challenges. From a legal perspective, the Regulation seems to require an extensive interpretation of the grounds for restriction of free movement as developed by the ECJ and codified in the Regulation. From a practical perspective, making coordination work will not be easy. It requires a significant effort from the Member States and the Commission, and success is by no means guaranteed.
Foreign direct investment, screening mechanism, public order and public security, free movement of capital, freedom of establishment
Behavioural Economics in European Corporate Governance – Much Ado about Nudging?
Authors: Madsen Marina B. 
Published: April 2022

Shareholder engagement from institutional investors remains a topic on the agenda of both legislators and in the public debate. The recent amendment of the SRD can be seen as a token of a pan-European ‘hardening of shareholder norms’. The arising question is if this hardening is sufficient to change the behaviour of institutional investors. Using insights from behavioural economics, the article discusses if the European Union and national Member States can apply nudging or other insights from behavioural economics to increase shareholder engagement and argues that in order to follow a behaviourally informed strategy, a distinct justification of both the applied means and the pursued purposes is required.
Corporate governance, European Union, shareholder engagement, active ownership, institutional investors, behavioural economics, choice architecture, nudging, biases, libertarian paternalism
Of Viruses, Economic Crises and Banks: The European Banking Union and the Response to Covid-19
Authors: Bassani Giovanni 
Published: April 2022

This article provides an account of how the Covid-19 outbreak and its impact on the banking sector were tackled in the European Union. The Covid-19 crisis is the first economic crisis after the enactment of the regulatory reforms of the last decade and represents the first relevant test for the assessment of their effectiveness in particular in the Eurozone. The analysis focuses specifically on the new framework for Banking Supervision in the Euroarea, the Single Supervisory Mechanism within the Banking Union, and explains how ECB Banking Supervision reacted to the economic and financial shock generated by the Covid-19 outbreak until the end of 2020.
In this context, the article discusses the ECB’s policy interventions within the wider European and international context where also significant initiatives from the central bank side of the ECB, the European Commission, the European Banking Authority, the European Systemic Risk Board, the EU co-legislators and the Basel Committee on Banking Supervision took place.1 The Article also analyses the potential limitations of the existing European framework for crisis management, should a further severe shock with new waves of infections and lockdowns require extraordinary policy interventions.
The article is divided into 4 sections: section A sets the scene and briefly describes the unprecedented economic shock deriving from the outbreak of the virus followed by the various measures of containment and lockdown. Section B analyses the various policy initiatives taken by ECB Banking Supervision to tackle the crisis within the wider European and international context. Section C discusses the potential use of the European framework for crisis management in the banking sector, should a further severe economic shock with ample repercussions on the banking sector materialise. Section D concludes.
European Banking Supervision, Covid-19, microprudential supervision, macroprudential supervision, distribution restrictions, usable capital, crisis management framework, precautionary recapitalisation, non-performing loans, asset management company
France is ‘Already’ Back in Europe: The Europeanization of French Courts and the Influence of France in the EU
Authors: Granger Marie–Pierre 
Published: April 2022

This article analyzes the recent ‘pro–European’ case law of the French Conseil d’État and Conseil Constitutionnel in the light of its wider legal and political context, in order to identify the reasons behind this jurisprudential evolution. It concludes that, paradoxically, this jurisprudence is not motivated by pro–European considerations, but by the desire to restore French influence in Europe, protect French fundamental values and interests, and increase the scope of judicial control over the French Legislator and Administration.
Cet article analyse la récente jurisprudence ‘pro–européenne’ du Conseil d’État et du Conseil Constitutionnel à la lumière de son environnement légal et politique, afin d’identifier les raisons de cette évolution jurisprudentielle. Il conclut que, de façon assez paradoxale, cette jurisprudence n’est pas motivée par des considérations en faveur de l’intégration européenne, mais par un désir de restaurer l’influence française en Europe,de protéger les valeurs et intérêts fondamentaux de la France, et d’accroître la portée du contrôle juridictionnel sur le législateur et l’administration française.
Regions and Subsidiarity in the European Union: A Look at the Role of the Spanish and other Regional Parliaments in the Monitoring of Compliance with the Principle of Subsidiarity
Authors: de León Sergio Alonso 
Published: April 2022

European regions have had a limited involvement in the European Union decision-making process, despite having an important role in the implementation of EU acts. The principle of subsidiarity, as established in the Treaty of Lisbon, has acquired an important regional dimension, which results in the possibility of the regional parliaments playing a role in the law-making process in the European Union for the first time. However, the internal mechanism set up in Spain narrows the possible scope of involvement of the regional parliaments, subordinating it to the national Parliament's will and even placing the regional governments in a similar position as the legislatures.
Clashing Interpretations of EU Rights in Domestic Courts
Authors: Thornton Liam 
Published: April 2022

This article examines Ireland’s implementation of the right to work for protection applicants, post Ireland’s opt-in to the EU Reception Conditions Directive Recast (RCDr) in 2018. Ireland sought to exclude persons potentially subject to Dublin Regulation transfers from accessing the labour market. Competing legal interpretations on this issue, now exist in Ireland, between the International Protection Appeals Tribunal (IPAT) and the High Court. Engaging in an analysis of the legislative intent and emerging domestic case-law, it is argued that Ireland’s wholescale exclusion of persons potentially subject to a Dublin transfer from the labour market is not permitted under EU law. With this ultimately to be decided by the Court of Justice, it is argued that the legal interpretation of IPAT, which would grant protection applicants within the Dublin transfer process an entitlement to enter the labour market, is to be preferred to the interpretation of the RCDr proffered by the Irish High Court. The focus of the High Court on ‘abuse of rights’ obfuscated key legal protections EU law provides to protection applicants.
International protection, Common European Asylum System, Dublin III Regulation, Reception Conditions Directive (recast), Labour Market, Abuse of Rights.