Recent Publications

November 2013
newsletter

Included in issue 43:

  • PhD Defences of Claire Dupont and Radostina Primova
  • Details of 3 new Policy Briefs
  • IES in the Media and Social Media
  • Launch of the revamped IES e-learning modules
  • The Autumn Lecture Series ‘EU Economic Law in a Time of Crisis’ gets underway

 

Download the newsletter to read more.

Jorge Torres Hidalgo

The use of export restrictions has become more and more common in recent years, evidencing the substantial loopholes existing in the WTO regulation on the matter. As a result of this deficient legal framework, the WTO membership experiences important losses of welfare and increasing political tensions. The multilateral negotiations for an updated discipline on export restrictions, in the context of the Doha Development Round, are blocked. Consequently, members have established a set of preferential bilateral and multilateral agreements to relieve the negative effects of these measures. Likewise, some recent WTO members have committed to stricter regulations as part of their Accession Protocols. Nevertheless, these methods have evidenced some important flaws, and the multilateral scene remains the optimum forum to address export restrictions. This Working Paper proposes a number of measures to improve the legal framework of the quantitative export restrictions and export duties, as well as their notification procedures.

ABOUT THE AUTHOR

Jorge Torres Hidalgo holds an LL.M. in International and European Law (IES-VUB) and a degree in law from the Autonomous University of Barcelona. He is also qualified as a lawyer in Spain and is currently part of the international trade team of Hogan Lovells' Brussels office. He was formerly a trainee at the Trade Commission of the Spanish Embassy in Morocco and the Energy Charter Secretariat.

The African Union (AU), a union consisting of 54 African States, held an Extraordinary Summit on 11-12 October 2013, to discuss its relationship with the International Criminal Court (ICC or the Court). The meeting took place just weeks before the trial of Kenya’s President Uhuru Kenyatta is scheduled to begin, and was clearly intended to voice discontent and put on hold the ongoing ICC proceedings against Kenyatta as well as his deputy, Vice-President William Ruto. Before the Summit, there were even widespread rumors that the Assembly of the AU would call for a mass withdrawal of African States Parties from the ICC Statute. Eventually, the Assembly did not go that far and took two important, but less controversial decisions. It called for the granting of immunities to Heads of States from prosecutions by international criminal tribunals and requested a deferral of the ICC cases against Kenyatta and Ruto through a resolution adopted by the UN Security Council (UNSC). After providing a background to the Kenya cases, this policy brief aims to evaluate what the position of the EU and its Member States as outspoken supporters of the ICC and the fight against impunity should be, especially given the fact that France and the UK, as permanent UNSC members, could block a UNSC deferral at any time.

Federica Toscano

The aim of this paper is to analyse what is the impact of the second phase of the creation of the Common European Asylum System (CEAS) in the protection of rights of Asylum Seekers in the European Union. The establishment of a CEAS has been always a part of the development of the Area of Freedom, Security and Justice. Its implementation was planned in two phases: the first one, focused on the harmonisation of internal legislation on minimum common standards; the second, based on the result of an evaluation of the effectiveness of the agreed legal instruments, should improve the effectiveness of the protection granted. The five instruments adopted between 2002 and 2005, three Directives, on Qualification, Reception Conditions and Asylum Procedures, and two Regulations, the so-called “Dublin System”, were subjected to an extensive evaluation and modification, which led to the end of the recasting in 2013.

The paper discusses briefly the international obligations concerning the rights of asylum seekers and continues with the presentation of the legal basis of the CEAS and its development, together with the role of the Charter of Fundamental Rights of the European Union in asylum matters. The research will then focus on the development in the protection of asylum seekers after the recasting of the legislative instruments mentioned above. The paper will note that the European standards result now improved, especially concerning the treatment of vulnerable people, the quality of the application procedure, the effectiveness of the appeal, the treatment of gender issues in decision concerning procedures and reception. However, it will be also highlighted that Member States maintained a wide margin of appreciation in many fields, which can lead to the compression of important guarantees. This margin concerns, for example, the access to free legal assistance, the definition of the material support to be granted to each applicant for international protection, the access to labour market, the application of the presumptions of the “safety” of a third country.

The paper will therefore stress that the long negotiations that characterised the second phase of the CEAS undoubtedly led to some progress in the protection of Asylum Seekers in the EU. However, some provisions are still in open contrast with the international obligations concerning rights of asylum seekers, while others require to the Member State consider carefully its obligation in the choice of internal policies concerning asylum matters.

ABOUT THE AUTHOR


Federica Toscano holds a degree in Law from the University of Ferrara, Italy, and a Masters degree in International and European Law from the IES-VUB (Magna cum Laude). She has pluriannual experience in the non-profit sector: she was a member of the International Board of the European Law Students' Association after a career at the local and national levels as project manager, and she interned at the World Youth Alliance Europe. Federica worked also at the European Parliament in Strasbourg and at the District Court of Ferrara.

Modern European Operations: From Phoney Wars to Sickle Cuts.

Mattelaer, A., Biscop, S. (ed.) & Fiott, D. (ed.) 1 Nov 2013 Brussels: Egmont Institute. 5 p. (The State of Defence in Europe: State of Emergency?)

Research output: ResearchCommissioned report

Original languageEnglish
Place of PublicationBrussels
PublisherEgmont Institute
Number of pages5
ISBN (Print)978-90-382-2266-0
StatePublished - 1 Nov 2013

Publication series

NameThe State of Defence in Europe: State of Emergency?
Kalliopi Kokkinaki

Competition law seeks to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. In order to be successful, therefore, competition authorities should be adequately equipped and have at their disposal all necessary enforcement tools. However, at the EU level the current enforcement system of competition rules allows only for the imposition of administrative fines by the European Commission to liable undertakings.


The main objectives, in turn, of an enforcement policy based on financial penalties are two fold: to impose sanctions on infringing undertakings which reflect the seriousness of the violation, and to ensure that the risk of penalties will deter both the infringing undertakings (often referred to as 'specific deterrence') and other undertakings that may be considering anti-competitive activities from engaging in them (often referred to as 'general deterrence'). In all circumstances, it is important to ensure that pecuniary sanctions imposed on infringing undertakings are proportionate and not excessive.


Although pecuniary sanctions against infringing undertakings are a crucial part of the arsenal needed to deter competition law violations, they may not be sufficient. One alternative option in that regard is the strategic use of sanctions against the individuals involved in, or responsible for, the infringements. Sanctions against individuals are documented to focus the minds of directors and employees to comply with competition rules as they themselves, in addition to the undertakings in which they are employed, are at risk of infringements.


Individual criminal penalties, including custodial sanctions, have been in fact adopted by almost half of the EU Member States. This is a powerful tool but is also limited in scope and hard to implement in practice mostly due to the high standards of proof required and the political consensus that needs first to be built. Administrative sanctions for individuals, on the other hand, promise to deliver up to a certain extent the same beneficial results as criminal sanctions whilst at the same time their adoption is not likely to meet strong opposition and their implementation in practice can be both efficient and effective.


Directors’ disqualification, in particular, provides a strong individual incentive for each member, or prospective member, of the Board as well as other senior executives, to take compliance with competition law seriously. It is a flexible and promising tool that if added to the arsenal of the European Commission could bring balance to the current sanctioning system and that, in turn, would in all likelihood make the enforcement of EU competition rules more effective.


Therefore, it is submitted that a competition law regime in order to be effective should be able to deliver policy objectives through a variety of tools, not simply by imposing significant pecuniary sanctions to infringing undertakings. It is also clear that individual sanctions, mostly of an administrative nature, are likely to play an increasingly important role as they focus the minds of those in business who might
otherwise be inclined to regard infringing the law as a matter of corporate risk rather than of personal risk. At the EU level, in particular, the adoption of directors’ disqualification promises to deliver more effective compliance and greater overall economic impact.

Marta Miglietti

The aim of this paper is to analyse the proposed Directive on criminal sanctions for
insider dealing and market manipulation (COM(2011)654 final), which represents the
first exercise of the European Union competence provided for by Article 83(2) of the
Treaty on the Functioning of the European Union. The proposal aims at harmonising
the sanctioning regimes provided by the Member States for market abuse, imposing
the introduction of criminal sanctions and providing an opportunity to critically
reflect on the position taken by the Commission towards the use of criminal law.


The paper will discuss briefly the evolution of the EU’s criminal law competence,
focusing on the Lisbon Treaty. It will analyse the ‘essentiality standard’ for the
harmonisation of criminal law included in Article 83(2) TFEU, concluding that this
standard encompasses both the subsidiarity and the ultima ratio principles and
implies important practical consequences for the Union’s legislator.


The research will then focus on the proposed Directive, trying to assess if the
Union’s legislator, notwithstanding the ‘symbolic’ function of this proposal in the
financial crisis, provides consistent arguments on the respect of the ‘essentiality
standard’. The paper will note that the proposal raises some concerns, because of
the lack of a clear reliance on empirical data regarding the essential need for the
introduction of criminal law provisions. It will be stressed that only the assessment
of the essential need of an EU action, according to the standard set in Article 83(2)
TFEU, can guarantee a coherent choice of the areas interested by the harmonisation
process, preventing the legislator to choose on the basis of other grounds.

Aurelie Sgro
Julie Marchal
Chantal Lacroix

In recent months, the migratory impacts of environmental degradation and climate change have gained increased worldwide attention. In response to the publication of the EC Staff Working Document on Climate Change, Environmental Degradation and Migration, this policy brief critically outlines current themes and issues that surround this global phenomenon, specifically the findings of current international research which frame the discussions on terminology and current legal, political and institutional conceptual debates. Several proposals were put forward during a Policy Forum in January 2013. Firstly, there is a need for tailored and actionable research outputs that take into account political pressures and realities on the ground. Secondly, migration and climate policies would be clearly boosted through the elaboration of a common policy-oriented research agenda of which elements were put forward at the event. Finally, efficient communication tools and channels could be developed to transfer research findings to policy-makers.

Thien Uyen DO

The transposition of the Racial Equality Directive (2000/43/EC) has immensely enhanced legal protection against discrimination on the grounds of racial and ethnic origin throughout the EU. More than 10 years after its adoption, the main challenge identified in many Member States is the enforcement of anti-discrimination laws in practice, in particular with regard to access to justice. Ultimately it is up to the domestic courts to ensure effective implementation of anti-discrimination law. Polls regularly show that the discrepancy between the levels of discrimination experienced and discrimination re- ported by victims must be seriously addressed. Awareness is low not only among the public but also among the members of the legal professions, leading to under-reporting of discrimination cases. In addition, data that reflect the ethnic or racial composition of the population are scarce which makes it difficult to prove discrimination before the competent authorities. Moreover, certain procedural difficulties that affect access to justice and effective enforcement also stem from the short limitation periods foreseen in legislation, lengthy procedures, evidence, high costs and failures in the provision of legal aid, ineffective sanctions, as well as barriers in the form of language and issues relating to legal standing or legitimate interest. The law remains complex and remedies often inadequate.

September 2013
newsletter

Data Talks - Policy Forums on Cyber Security, Data Protection & Open Data - IES Spring Lecture Series 2013: Multilevel governance of migration and immigrant integration - Training Course on Security, Fragility and Development - EU Foreign Affairs Podcast Series - EU Climate Policy & Greening the Environment - New Book: The Politico- Military Dynamics of European Crisis Response Operations by Alexander Mattelaer - Upcoming EU in Close Up October 2013