Recent developments on the EU Commission’s proposal for a ‘[T]obin Hood’ Tax

Jose Manuel Panero Rivas, LL.M

MA in Economics for Competition Law candidate, King’s College London

 

The discussions held on the possibility of introducing an EU-wide Financial Transactions Tax (‘FTT’) [i] is one of the most interesting political battles taking place in Brussels in recent times (and there have been some). While certain Member States defend the introduction of such a tax at EU level – and some of them have even gone as far as announcing the unilateral introduction of similar taxes – other Member States fiercely oppose it.[ii]. In their turn, the European Commission and the European Parliament seem to strongly support the novel instrument.

It should be recalled that on 28 September 2011, the European Commission submitted to the Council a proposal of Directive for introducing an EU-wide tax on financial transactions (‘the Proposal’). [iii]

Some highlights of the Proposal include the following:

  • The new tax would be applied to financial transactions where at least one party is established in a Member State and a financial institution established in a Member State is party to the transaction, acting for its own account, the account of another person or in the name of a party to the transaction.[iv]
  • Financial transactions for these purposes include: (i) the purchase and sale of a wide range of financial instruments (ii) the conclusion/modification and trading of derivatives and (iii) transfers of financial instruments between group entities, which are no a purchase and sale.[v]
  • The tax rates suggested in the proposal (above which there would be room for manoeuvre for Member States) are as follows: (i) 0.01% in respect of transactions related to derivatives and (ii) 0.1% for other transactions.[vi]
  • The new tax would replace any previous national tax on financial transactions (other than VAT).[vii]
  • An overview of the taxation of transactions is the following:

 

[source: European Commission´s presentation of the Commission proposal for a Council Directive on a common system of FTT][viii]

The Commission submitted that the aim of the Proposal[ix]  is to ensure that the financial sector makes a fair contribution to the fiscal consolidation in the Member States, to set up a harmonised framework that will help reducing competitive distortions, to discourage potentially risky activities, to complement regulatory measures aimed at avoiding future crisis and, (v) to promote common rules for the introduction of FTT at global level.

The proposed Council Directive would be enacted under Article 113 TFEU. This Article, which provides a legal basis for the harmonisation of tax systems of Member States, reads:

‘The Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, to adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.

Accordingly, under the special legislative procedure established in Article 113 TFEU, it is the Council which should unanimously agree on the establishment of the FTT, and the European Parliament and the Economic and Social Committee should only be consulted.

Since the Proposal was submitted to the Council, it has been debated twice as an ‘item B’ on the Council´s agenda (on 8 November 2011[x] and on 11 March 2012[xi]). It seems that no agreement has been achieved in these formal meetings of the Council. However, following the meeting of the Council of 11 March and the lack of consensus within it, the Commission and the Parliament have issued statements in support of the Proposal.

On the one hand, the Commission has tried to push ahead by highlighting the savings that EU Member States would make from the establishment of the FTT. On the basis of its Proposal, the Commission estimated total savings for EU Member States of around €81 billion.[xii]

Interestingly, the Commission is proposing that 1/3 of the money would go to national administrations and 2/3 of it to the EU budget, creating a new own resource for the Union. The latest part would amount to €57 billion, therefore reducing Member States contribution to the budget in the said amount. This would probably make the proposal particularly appealing for Member States facing severe austerity measures.

In turn, the European Parliament seems to be very favourable to the establishment of the FTT. This is perceived by the EU Chamber as a measure having broad popular support. Bearing this in mind, European Parliament President Martin Schulz suggested, on 28 March 2012, the possibility of making the first use of the European Citizens’ Initiative in the field.[xiii] Remarkably, it is said that even 2/3 of the UK citizens would support the introduction of the tax.[xiv]

Should the European Citizens’ Initiative go ahead, the position of the Commission would probably be strongly reinforced from a political point of view.  If the Proposal of the Commission is based not on its own motion but on a proposal of EU citizens, the position in the Council of those Member States opposing the FTT would be very much compromised. [xv]

The Committee of the Regions[xvi] and the EESC have also provided different degrees of support to the Proposal.[xvii]

However, the latest news coming from the informal meeting of the Council held on 31 March 2012 seems to point to a different solution than the one contained in the Proposal, which would be a far less ambitious establishment of an activity tax, or a floor of stamp duty tax similar to those already existing in some Member States, across the EU.[xviii]

Whichever the solution to the conflict will be, this is likely to provide interesting news from different aspects of EU Law. On the one hand it would be interesting to see the use of Article 113 TFEU and its possible challenge before EU Courts.[xix] The possibility of starting an enhanced co-operation procedure on the issue – perhaps between Eurozone members – has been always flying around. However, this would be probably detrimental for those countries establishing the tax in comparison to those that would not introduce it and have a leading financial industry, namely the UK.

Besides that, if the suggestion of the EP President gains traction, this could well be the first successful use of the European Citizens’ Initiative, a major event in the EU construction.

The issue will be in the Council agenda later in May or June, keep your eyes open.

 

[i]  The idea of a “Tobin Tax”, suggested by the Nobel-awarded economist James Tobin was originally defined as a tax on all spot conversions of one currency into another. The tax is intended to penalise short-term transactions involving foreign currencies and its objective, which is to cushion exchange rate fluctuations, is different to the one of the FTT proposed by the Commission. In turn, the introduction of a so-called ‘Robin Hood Tax’ was  promoted by a campaign launched in the UK in 2010. This tax would be imposed on the trading of a wide range of  financial products, affecting individual investors, banks, hedge funds and other financial institutions. The campaign is sponsored by various prominent charities, aiming to raise money for international development, to tackle climate change and to protect public services. The Commission’s proposal can be seen, to a certain extent, as an original mix of both taxes.

[ii] It is said that the main Member States opposing the introduction of the tax are the UK, the Netherlands and Sweden <http://euobserver.com/19/115671>

[iii] Proposal for a Council Directive on a common system of financial transaction tax and amending Directive 2008/7/EC [COM(2011) 594 final] available at  <http://ec.europa.eu/taxation_customs/resources/documents/taxation/other_taxes/financial_sector/com(2011)594_en.pdf>

[iv] The concept of financial institution for these purposes will be broadly defined (see Article 2.1(7) of the Proposal of the Commission

[v] See Article 2.1 (1) of the Proposal of the Commission

[vi] See Article 8.2 of the Proposal of the Commission

[vii] Article 12 of the Proposal of the Commission

[viii] Page 14 of European Commission presentation of the Commission proposal for a Council Directive on a common system of FTT, available at <http://ec.europa.eu/taxation_customs/resources/documents/taxation/other_taxes/financial_sector/ftt_proposal_en.pdf >

[ix] Supra note vi, page 2

[x] See press release of the Council of 8th November 2011 (Economic and Financial Affaires), available at  <http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/11/410&format=HTML&aged=1&language=FR&guiLanguage=en>

[xi] See press release of the Council of 13 March 2012 (Economic and Financial Affaires), available at

<http://europa.eu/rapid/pressReleasesAction.do?reference=PRES/12/102&format=HTML&aged=0&lg=en&guiLanguage=en>

[xii] “Commission: ‘Robin Hood’ tax would save EU countries billions”, available at<http://euobserver.com/19/115671>

[xiii] “Schulz: 1 million EU signatures could spur finance tax” available at <http://euobserver.com/843/115734>

[xiv] See “Commission’s financial transaction tax – a winner?” available at <http://www.publicserviceeurope.com/article/575/commissions-financial-transaction-tax-a-winner>

[xv] On the European Citizens’ Initiative see the previous post “Lets have our EU laws? European Citizens’ Initiative is ready to be used” in this blog at <http://kslr.org.uk/blogs/europeanlaw/2012/04/07/lets-have-our-eu-laws-european-citizens-initiative-is-ready-to-be-used/>

[xvi] See Opinion 
of the 
Committee of the Regions 
 
a Common System of Financial Transaction Tax, 15-16 February 2012, available at <http://coropinions.cor.europa.eu/coropiniondocument.aspx?language=en&docnr=332&year=2011>

[xvii] See Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on a common system of financial transaction tax  and amending Directive 2008/7/EC COM(2011) 594final, available at <http://eescopinions.eesc.europa.eu/eescopiniondocument.aspx?language=en&docnr=818&year=2012>

[xviii] “EU countries explore alternatives to financial tax”, available at <http://euobserver.com/19/115768>

[xix] Such challenge could come from a direct action for annulment under Article 263 TFEU before the CJEU or indirectly from an objection of illegality under Article 277 TFEU before the CJEU or a preliminary ruling posed by a national court to the CJEU under Article 267 TFEU.

Inuit and Microban: ECJ explains notion of ‘regulatory act’

dr. Agne Limante 

Post-Graduate Diploma candidate in EU Law, King’s College London; PhD in EU law, Vilnius University

 

After the Lisbon Treaty came into force, actions for the annulment of EU legal acts are regulated by Article 263 TFEU[i], which has revised and replaced Article ex 230 EC[ii]. Among other changes related to annulment actions, the Lisbon Treaty also revised locus standi requirements for private applicants. The present wording of Article 263(4) TFEU allows “any natural or legal person <…> [to] institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures” (emphasis added). The novelty and relaxation of standing lies in this last scenario – the abolishment of the obligation to prove ‘individual concern’ when seeking annulment of a regulatory act not entailing implementing measures.

Ever since the drafting of the Treaty Establishing a Constitution for Europe, the exact meaning of the ‘regulatory act’ has been one of the most debated topics among scholars concerned with the locus standi requirements in annulment actions[iii]. This was mainly caused by the fact that neither the Constitution for Europe, nor the Lisbon Treaty, contains a definition of a regulatory act or uses this wording in other articles. For long time the legal writings were based solely on the travaux preparatoire of the Treaties and opinions of scholars, waiting for the EU Court of Justice to have the final word.

The mystery has been revealed in autumn 2011 when Court of Justice of European Union (CJEU) delivered its first judgements addressing the notion of the ‘regulatory act’ – in Inuit Tapiriit Kanatami[iv] and Microban[v] cases. Due to the fact that they are likely to become the seminal cases on this topic, they are worth taking a closer look at.

Inuit Tapiriit Kanatami case

On 6 September 2011, the General Court issued an Order in the case Inuit Tapiriit Kanatami and Others[vi], wherein it applied Article 263 TFEU and, for the first time, interpreted the notion of ‘regulatory act’. The case concerned the European Parliament and Council Regulation No. 1007/2009 on trade in seal products[vii]. The applicants (a group of companies, associations and natural persons) based their claim on Article 263 TFEU and sought the annulment of the contested regulation, stating that it is a regulatory act and therefore relaxed standing rules should be applied. The respondents (the European Parliament and the Council), supported by the Netherlands and the Commission, raised three pleas of inadmissibility, alleging, respectively, that the contested regulation is not a regulatory act, that it does not entail implementing measures and that it does not individually concern the applicants. As a result, the examination of admissibility of the action revolved around the interpretation of a regulatory act.

Taking a literal point of view, the Court noted that it is apparent from the ordinary meaning of the word ‘regulatory’ that these are the acts of general application. The Court also pointed out that regulatory acts do not include legislative acts. Such an interpretation of the word ‘regulatory’, and of the equivalent word in the different language versions of the TFEU, as opposed to the word ‘legislative’, according to the Court, is also apparent from a number of other provisions of the TFEU, in particular Article 114 TFEU, concerning the approximation of the ‘provisions laid down by law, regulation or administrative action in Member States’.

Carrying out historical interpretation, the Court referred to the process that led to the adoption of Article 263 TFEU, which was the drafting of its predecessor Article III-365 of the draft Treaty establishing a Constitution for Europe. The Court stated that it is apparent from the cover note of the Praesidium of the Convention[viii] that, in spite of the proposal for an amendment to the Article 230(4) EC mentioning ‘an act of general application’, the Praesidium adopted another option, that of mentioning ‘a regulatory act’. Such a wording enabled a distinction to be made between legislative acts and regulatory acts, maintaining a restrictive approach in relation to actions by individuals against legislative acts[ix].

Finally, using a teleological method of interpretation, the Court observed that the purpose of that provision is to allow a natural or legal person to institute proceedings against an act of general application which is not a legislative act, which is of direct concern to them and does not entail implementing measures, thereby avoiding the situation in which such a person would have to infringe the law to have access to the court. On the other hand, the conditions of admissibility of an action for annulment of a legislative act still remain more restrictive than in the case of proceedings instituted against a regulatory act – a legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and individual concern to them.

Having carried out such analysis, the Court concluded that ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts. As further analysis of the Court revealed, legislative acts for this purpose are differentiated by the procedure, which led to their adoption.

Microban case

After the General Court has explained the meaning of ‘regulatory act’ in the Inuit Tapiriit Kanatami case, it still had yet to define the meaning of ‘direct concern’ and the lack of ‘implementing measures’ in this context. This was done in Microban case[x].

The measure challenged by the applicants in Microban case was a Commission decision on non-inclusion of triclosan in the ‘positive list’ of authorised substances. The decision was adopted using Commissions implementing powers. Therefore, according to the classification of legal acts provided for in the Treaty, it was a decision falling within the ambit of implementing acts. As, due to its scope, it was also an act of general application, the Court concluded, referring to the Inuit Tapiriit Kanatami case, that the contested decision should be considered to be a regulatory act.

As regards the concept of ‘direct concern’ as re-introduced in the Article 263(4) TFEU, the Court decided to continue to interpret it in the same way as it appeared in Article 230(4) EC. Elaborating on the concept of lack of implementing measures, the Court noted that the Commission decision on non-inclusion of triclosan in the ‘positive list’ had the immediate consequence of the removal from the provisional list and a prohibition on the marketing of triclosan. Though an established transitional period allowing Member States to extend marketing triclosan until 1 November 2011 might have given rise to implementing measures by the Member States, these measures, according to the Court, were optional and ancillary to the main purpose of the contested decision, namely the prohibition of the marketing of triclosan. For this main purpose Member States did not need to adopt any implementing measures, therefore, the Court held that the contested decision did not entail implementing measures and ruled the application admissible.

Concluding remarks

Having in mind the case-law discussed above, ‘regulatory acts’ seem to include delegated (Article 290 TFEU) and implementing acts (Article 291 TFEU) as long as they are acts of general application[xi]. Therefore, the relaxation of private applicants’ standing would most probably have an impact on possibilities to challenge Commission regulations, as large part of them should fall under the concept of a ‘regulatory act’. The new rules will potentially have far-reaching effects in such areas as, environmental law, as in those areas the main principles are usually laid down in a legislative act (directive or regulation), while the details are left to the Commission to implement. On the other hand, regulations adopted by the Parliament and the Council acting together through legislative procedure should be classified as legislative acts and relaxation provided for in the Treaty of Lisbon would not apply, requiring private applicants to prove that they are directly and individually concerned.

It is worth noting that at least to some extent, differentiating regulatory and legislative acts by the procedure according to which they were adopted is not fully in line with the previous case law of the Court. In numerous cases the Court made it clear that in order to ascertain whether a legal act whose annulment is sought is open to challenge, it is necessary to look to its substance as the form in which it is cast is, in principle, irrelevant[xii]. However, at this point it seems that when deciding whether the act at issue is regulatory or legislative, the Court will simply base its analysis on the legal basis of the act and the procedure chosen. In Inuit Tapiriit Kanatami and Others[xiii] the Court clearly stated that it is apparent from Article 289(1) and (3) TFEU that legal acts adopted according to the procedure defined in Article 294 TFEU, referred to as ‘the ordinary legislative procedure’, constitute legislative acts and categorised the contested regulation as a legislative act.

[i] Treaty on the Functioning of the European Union 2009

[ii] European Communities Treaty 2002

[iii] See, for example; Barents, Rene ‘The Court of Justice after the Treaty of Lisbon’ 47 CMLRev (2010) p709-728; Damian Chalmers, Gareth Davies, Giorgio Monti, European Union Law. Text and Materials (2nd edition, Cambridge University Press, 2010) p 414; Albors-Llorens, Albertina, ‘Edging Towards Closer Scrutiny? The Court of Justice and Its Review of the Compatibility of General Measures With the Protection of Economic Rights and Freedoms’ in Anthony Arnull, Catherine Barnard, Michael Dougan & Eleanor Spaventa (eds.) Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, 2011) p 245-267.

[iv] Order of the General Court of 6 September 2011 in Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council [2011] ECR II-0000.

[v] Case T-262/10 Microban International and Microban (Europe) v Commission [2011] ECR II-0000.

[vi] Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council [2011] ECR II-0000.

[vii] The contested regulation was adopted on the basis of the EC Treaty, whereas the action for annulment came after the TFEU entered into force. Considering which article, 230 EC or 263 TFEU, should be applied, the Court stated that in accordance with the maxim tempus regit actum the question of the admissibility of an application must be resolved on the basis of the rules in force at the date on which it was submitted and, second, that the conditions of admissibility of an action are judged at the time of bringing the action, that is, the lodging of the application (see also Case T-532/08 Norilsk Nickel Harjavalta and Umicore [2010] ECR I‑0000, and Case T-539/08 Etimine and Etiproducts [2010] ECR I‑0000, para 76 and the case-law cited).

[viii] Secretariat of the European Convention, CONV 734/03

[ix] See also Oral presentation by M. Gil Carlos Rodríguez Iglesias, President of the Court of Justice of the European Communities, to the “discussion circle” on the Court of Justice on 17 February 2003, CONV 572/03; and Oral presentation by M. Bo Vesterdorf, President of the Court of First Instance of the European Communities, to the “discussion circle” on the Court of Justice on 24 February 2003, CONV 575/03.

[x] Case T-262/10 Microban International and Microban (Europe) v Commission [2011] ECR II-0000.

[xi] According to the case law, a decision is of general application when it applies to objectively determined situations and it produces legal effects with respect to categories of persons envisaged in general and in the abstract.

[xii] Case 60/81 IBM v Commission [1981] ECR 2639, Case C‑147/96 Netherlands v Commission [2000] ECR I‑4723, and, more recently, Case C-322/09 P NDSHT v Commission [2010] ECR I-0000.

[xiii] Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council [2011] ECR II-0000

Lets have our EU laws? European Citizens’ Initiative is ready to be used

dr. Agne Limante 

Post-Graduate Diploma candidate in EU Law, King’s College London; PhD in EU law, Vilnius University

 

On 1 April 2012 the Regulation on the European Citizens’ Initiative[i] came into force. It establishes the procedures and conditions required for a citizens’ initiative – the new tool created by the Lisbon Treaty granting EU citizens the right to ask for changes to European law (Article 11 TEU[ii] and Article 24 TFEU[iii])[iv].

Considering that that date chosen for coming into force coincided with April Fool’s day, euractive.com was fast to make a joke announcing that Belgians should submit a Citizens’ Initiative to make ‘frites’ their own, seeking to register them as a traditional specialty protected under EU law. Well, it was quite a fun and user-friendly way to introduce a tool enabling the people to influence the political agenda of the EU for the first time in history.

The European citizens’ initiative grants a right to one million EU citizens from at least seven EU countries[v] to call on the European Commission to propose legislation on matters where the EU has competence to legislate. Proposed initiatives must be registered by the organizing “citizens’ committee” on an online register and Commission has two months to approve them (the registration can be refused if the initiative is manifestly against the fundamental values of the EU or manifestly outside the framework of the Commission’s powers to propose the requested legal act). After such registration, the “citizens’ committee” can start collecting signatures – they have one year after the Commission has confirmed the registration of the proposal to do so. Any EU citizen can sign an initiative (so long as they are old enough to vote in European Parliament elections) and must complete a specific statement of support either online or on paper.

Once the signatures have been collected and verified by the Member States (they have three months to do that), the citizens’ initiative has to be submitted to the Commission. The Commission will have three months to examine it. The organisers will be received at the Commission and will have the opportunity to present their initiative at a public hearing of the European Parliament. The Commission would then adopt a formal response and, in case of a positive decision to put forward a legislative proposal in response to the citizens’ initiative, the standard legislative procedure would start. The Commission proposal would be submitted to the European Parliament and the Council (in some cases only the Council), which will need to adopt it for it to become law.

It is interesting to note that in 2011 the UK government introduced e-petitions, a similar tool for UK citizens – here 100,000 signatures are needed for a question to be addressed in the House of Commons. It seems that such initiatives are becoming a new trend in government – citizens relations and a new way to increase contact between them.

 

[i] Regulation (EU) No. 211/2011 of the European Parliament and of the Council 16 February 2011 on the citizens’ initiative.

[ii] Treaty of the European Union 1993

[iii] Treaty on the Functioning of the European Union 1958

[iv] The European Commission has issued a Guide to the European citizens’ initiative which might be helpful to find additional information on this subject.

[v] The minimum number of signatures that must be collected in each country range from 74,250 in Germany to 4500 in several small Member States. The figure is calculated by multiplying the number of MEPs in that country by a factor of 750.

Factsheet of the ECtHR: Case-law concerning the EU

In January 2012 the European Court of Human Rights (‘ECtHR’) published a Factsheet containing a brief review on how the case-law of the ECtHR has been adjusting to cover some of the matters governed by EU law.

The European Union is not – yet[1] – a member of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’)[2] , and accordingly its acts are not subject to the revision of the ECtHR. However, all the States which are members of the European Union are also members of the ECHR.

This has led to a situation where the ECtHR has been able to indirectly control (to a certain extent) the European Union, by controlling the acts of its Member States when transposing or applying EU law.

The factsheet published by the ECtHR contains an interesting summary of the evolution of the case-law of the ECtHR concerning this indirect control of the European Union.

 

________________________________________________________________________________________________________

[1] The accession of the EU to the ECHR appears to be imminent. For more information, consider: Limante, A. ‘Draft EU to ECHR Accession Agreement: fitting Cinderella’s shoes for Gulliver’ (European Law Blog of King’s Students Law Review, January 29 2012) <http://kslr.org.uk/blogs/europeanlaw/2012/01/29/50/> accessed 8 March 2012

[2] Convention for the Protection of Human Rights and Fundamental Freedoms, art 32, 33 and 34 [1950] Amended by Protocols Nos. 11 [1998] and 14 [2010]. Available online: <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf> accessed 08 March 2012

REVIEW: Annual European Law Conference, held by King’s College London Centre of European Law

Adrienne Yong

LLM in EU Law Candidate, King’s College London; LL.B. (Hons) Dunelm

 

London is a bustling multicultural hub of activity and has always been known to attract big names. The legal sphere is no exception, and on the 24 February 2012, King’s College London took advantage of the capital’s enticing aura to bring together leading academics, scholars, students, practitioners and even Advocate Generals from the Court of Justice of the European Union (CJEU). The Centre of European Law (CEL) at King’s College London gathered these guests into the aptly named ‘Great Hall’ on the Strand Campus for the eagerly anticipated Annual European Law Conference 2012.

The CEL hosts this particular conference annually, providing a forum for intellectual discussion of the past year’s European developments. Essentially, it brings everyone up to speed on recent cases that may not have been noticed throughout the year, analysed by experts for the general public. It aids in the understanding of the impact of these cases now and in the future. I interpreted it as a ‘refresher course’, and in a sense, it was. The atmosphere was a dynamic learning environment for all: young, old and inexperienced, chaired by King’s very own Sir Francis Jacobs, former Advocate General of the CJEU.

On this year’s agenda were a wider variety of topics than the year before, not only focused on the expertise boasted at King’s. There were practitioner-based topics such as Competition Law and Intellectual Property, as well as topics that were more political and geared towards the academically inclined such as EU Citizenship and Human Rights. In that regard, there was an opportunity to pick and choose those most relevant to one’s individual interests. Indeed, many did so as attendance at each troughed and peaked throughout the long day.

With Competition Law, one of the largest and most famous pathways on the King’s LLM, it was apt that Advocate General Mazák gave the Keynote Address, speaking about leniency against the right to claim damages resulting from cartel behaviour. In his opinion, there was a need to ensure minimum standards through uniform enforcement of competition.  Without such minimum standards, it would undermine the internal harmonisation of national procedural rules. He particularly noted it would help evade the “merry-go-round” of preliminary references that was in place under the current law.

Professor Eleanor Spaventa (Durham University) then took the stage to lament the lack of positive EU Citizenship developments in the past year drawing upon Zambrano,[i] McCarthy[ii] and Dereci.[iii] The cynical tone of her presentation boiled down to one main point: 20 years after the introduction of Union citizenship, the Court has provided no further clarification of the rights conferred or, in fact, what they mean. Is it a tool for integration? A fundamental status? Or does it simply fail to deliver at all? Reasoning is lacking from the three aforementioned cases and she was heavily discouraged.

Professor Piet Eeckhout (King’s College London) proceeded to build upon the citizenship cases as the overlaps began to emerge between the various speakers and their proposed topics of discussion. Professor Eeckhout framed the developments of the EU Human Rights discourse in “3D” using the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the growing importance of EU general principles. With the Lisbon Treaty giving legal status to two previous ‘lesser standard’ instruments, there has clearly not been enough guidance as to how to apply EU human rights. In the cases of immigration rules, though, a more positive note was present: violations would allow rights to be conferred.[iv] Given the sharply disapproving tone of the rest of the citizenship-human rights dialogue, this positivity was welcomed.

Professor Tanya Aplin (King’s College London) continued this cheery dialogue in her assessment of the year for Intellectual Property (IP), beginning with the seminal Murphy (Premier League)[v] case, a trend throughout the day. It was evident from her musings that IP law was a diverse area that affected many others. The cases ranged from the football in pubs to embryos used for industrial purposes.[vi] There was sense of approval from Professor Aplin of the CJEU’s rulings in IP law.

This led us nicely into the discussion on the Brussels I Regulation, essentially relating to jurisdictional issues in the EU, by Professor Jonathan Harris (King’s College London and Serle Court Chambers). A big proposal was on the cards in the form of the Judgments Regulation. Like most proposals, it was a positive step forward, though it hadn’t quite fully crossed the bridge. Also mentioned were internet sales, which have proven to be a booming business the past year in Luxembourg. Because of the convenience the internet has generated for contract conclusion, problems of origin and jurisdiction have arisen. It is unclear whether the recent Pammer and Hotel Alpenhof[vii] case solves the problem of deciding when a case has been “directed” to another Member State.

Internet sales are also pertinent to Competition Law. Professor Richard Whish (King’s College London) began by noting he had already held 5 weeks of seminars on the ‘Recent Developments in EU and UK Competition Law’, which he had to boil down into a mere 45 minutes. There were a huge number of cases, but the key points to note were the proliferation of settlement procedures in cartel cases (indicating a change in practice) and the ever-present single market integration rationale from the seminal Consten and Gründig[viii] case, still finding its place in the 21st Century in the likes of Pierre Fabre[ix] and Murphy (Premier League).

Towards the end was Robin Griffith (King’s College London and Clifford Chance) on State Aid. Case law for State Aid was plentiful throughout the year. This could be partially attributed to Guidelines in the area not always being fully up-to-date. There was an evident stress upon interpretation by the CJEU, rather than reliance upon the non-binding and at times outdated guiding communications.

Finally, Thomas de la Mare (Blackstone Chambers) took to the stage to give an English interpretation of EU cases, which was surprisingly tame. Also surprising was that the questions were in areas not only of a harmonised nature but where EU interests arose, such as indirect tax. He noted that familiarity with the law meant there would be better domestic interpretation of it, as for now partial rights were being granted to circumvent full disapplication. There would be disapplication where clashes occur because of how the law had developed. He left us with the idea that a more intrusive review would potentially be necessary in the near future for England and Wales.

Thus concluded the jam-packed day, with everyone’s heads swimming with EU law. Retiring upstairs for the drinks reception, Professors Andrea Biondi, Piet Eeckhout and Stefanie Ripley presented their new book, EU Law After Lisbon,[x] which we were all reassured could seem dull in substance, but in analysis was far more than just dry titles. Interestingly, the book launch was not a culmination of the discussion throughout the day. However, given the vast numbers and varied types of people attending this distinguished event, it was no surprise the authors chose to capitalise on the captive audience, and captivated they would be, as I was.

[i] Case 34/09 Ruiz Zambrano [2011] OJ C130/2

[ii] Case 434/09 McCarthy [2011] OJ C186/5

[iii] Case 256/11 Dereci [2012] OJ C25/20

[iv] C‑411/10 NS judg of 21 Dec 2011, nyr and C-61/11 El Dridi judg of 28 Apr 2011, nyr

[v] C-403/08 and 429/08 Football Association Premier League [2011] OJ C347/2

[vi] C-34/10 Brüstle [2011] OJ C362/5

[vii] C-585/05 and C-144/09 Pammer and Hotel Alpenhof [2011] OJ C35/4

[viii] C-56 & 58/64 Consten and Gründig [1966] ECR 299

[ix] C-439/09 Pierre Fabre [2011] OJ C355/3

[x] Andrea Biondi, Piet Eeckhout, Stefanie Ripley (eds) EU Law After Lisbon (OUP 2012)