Un articol favorabil liberalizarii serviciilor de sanatate in CE

Din Financial Times. Fragmente…

(…)

European governments in particular have ringfenced healthcare provision and rejected virtually all attempts to open this sector for cross-border exchange. Resistance has been so fierce that the European Commission now hesitates to table a new directive that would simply codify a ruling from the European Court of Justice: to ensure free movement for patients and the right to get reimbursed for treatments abroad if the national health system cannot provide the treatment within a reasonable period of time.

This proposal has been due since last December and there is a new deadline later this month. But the directive seems far away as new versions constantly appear with ever more diluted free trade credentials.

Why is free trade in healthcare so resisted? Outdated notions of how to organise healthcare systems lie behind the core ideological opposition. False concerns for healthcare in developing countries have also become expedient handmaidens for healthcare protectionism in the developed part of the world.

The truth, however, is that many developing countries want to liberalise trade in healthcare. In the World Trade Organisation, it is developing countries that have made the strongest commitments. Countries as diverse as India, Cuba, China, Thailand, Jordan, South Africa and the Philippines have all developed export strategies to supply health services to foreign markets. They are knocking on the doors of Europe and the US to sell their healthcare services. Similarly, patients from the developed world increasingly buy treatments in developing countries. In 2006, Singapore treated half a million patients from abroad. India claimed 600,000 foreign patients and Thailand as many as 1.2m healthcare “tourists”.

(…)

Free trade in healthcare is no panacea, but it would certainly help European governments use resources more efficiently and improve accessibility and affordability of healthcare. Substantial liberalisation is unlikely to emerge from WTO trade negotiations, at least in the foreseeable future. Governments should therefore opt for autonomous reforms, tailored to their needs, and stronger regional trade and investment co-operation.

Regimul olandez al pariurilor online spre CJCE

Din Financial Times.

Ladbrokes claimed a significant moment in betting companies’ long battle to open up restrictive European markets when the Dutch Supreme Court referred its appeal against a ban on taking online bets from Dutch citizens to the European Court of Justice.

The UK’s biggest bookmaker claimed victory in a six-year case that ended on Friday when the Dutch Supreme Court upheld the country’s gaming laws but asked for guidance in the context of European law. Ladbrokes’s shares rose 8p, closing at 291¾p.

Dutch gaming law prevents Ladbrokes and others from taking sports bets online from any resident, even though Ladbrokes has no Dutch-facing website and does not advertise in the country. De Lotto is the only permitted operator of sports betting in the country and three years ago asked a lower court to stop Ladbrokes from taking bets from Dutch citizens.

The ruling comes ahead of a critical decision due in the next two weeks from the European Commission on whether to issue proceedings at the ECJ against countries it believes are unfairly restricting their gambling markets to competition. The Netherlands is one of 10 the EC may take action against.

John O’Reilly, head of Ladbrokes e-gaming division, said: “We have fought for six years against Dutch protectionism and finally we have won the referral to the ECJ. At last the Dutch courts have recognised that its laws on betting must be viewed in the context of European law.

“Under the Treaty of Rome we should be able to provide our services across borders in competition with the Dutch monopoly, but at the moment we are unfairly prevented from doing so.”

The ECJ is unlikely to rule on the Ladbrokes case for at least a year but some gaming operators hope the referral will strengthen the EC’s case against member states and put pressure on them to liberalise their laws.

Suedia. Cauza Laval & pozitia patronatului

Da, nu ne mai saturam in a invedera diversele pozitii & aprecieri ale partilor… Acum e vorba despre “Confederatia intreprinderii suedeze“, adica despre cea mai mare organizatie a patronatului (ori angajatorilor) din respectivul stat. Hotararea CJCE in cauza Laval a lovit frontal, dupa cum se pare. Asa ca, acum apare problema ce e de facut… Cititi ce au afirmat dansii.

Opinions were split when the effects of the Laval case on the labour market were debated at a Europe Day conference in Stockholm. Unions claim the ruling disturbs the balance between freedom of movement and the right to take labour market action. Employers claim the opposite.

At the Europe Day conference on 9 May, the best ticket was a seminar on the ramifications for the Swedish labour market of the so-called Laval case.

(The case concerned Latvian labour imported to Sweden to help Latvian construction company Laval un Partneri Ltd.renovate a school near Stockholm. Swedish unionists, concerned that the wages were lower than Swedish standard, blockaded the site. When the case went to the European Court of Justice, the court ruled that the right to workplace action was fundamental but not as fundamental as the right of businesses to supply cross-border services.)

Union representatives at the seminar said that the Laval ruling has affected the balance between freedom of movement and the right to take workplace action. This, they said, threatened the traditional labour market consensus on rules known in Sweden as the Swedish Model. Swedish Enterprise’s Lars Gellner took the opposite position: that the ruling has restored balance.

“We don’t have a Swedish template for foreign labour. This is a new situation. I think that the ruling was just about right.”

The debatemainly concerned minimum-wage legislation and the risk for wage dumping. Moderator Svante Nycander, former editor of Sweden’s biggest daily, Dagens Nyheter, suggested three possible routes to workable rules for temporary foreign labour in Sweden:

• making the Swedish labour market collective agreement generally applicable,
• legislating minimum wages,
• customising wage agreements for out-stationed companies.

Lena Maier Söderberg from Saco (Swedish Confederation of Professional Associations)said that Sacodid not believe in legislating a minimum wage. The TCO (Swedish Confederation for Professional Employees) representative, Ingemar Hamskär,wanted neither minimum wage legislation nor customised wage agreements for foreigners.ButClaes-Mikael Jonsson of LO (Swedish Trade Union Confederation) thought that customising might just work.

Swedish Enterprise has not yet decided which method to back but Lars Gellner saidin the debate that there’s reason to believe the government will somehow want to put minimum wages into law. A Swedish parliamentary study on the issue and the to-be-or-not-to-be of Lex Britannia is due by 15 December.

Spre o propunere de reglementare a “termenului de gratie” pentru plata redusa a lucratorului temporar?

Un fragment din EUObserver:

Rights for ‘temp’ workers

On agency workers, the biggest differences have revolved around the so-called “grace period.” This refers to the period during which temping workers employed by agencies and sent to work in various companies are paid less than workers employed directly by those firms.

The European Commission’s blueprint originally suggested a six-week period, while employers as well as countries such as the UK, Germany, Denmark and Ireland called for 12 months or more. Trade unions, on the other hand, backed by states such as France and Italy were pressing for a much shorter period or none at all.

A Slovenian compromise text, seen by EUobserver, suggests that “the principle of equal treatment from day one would be the general rule,” while it would be possible for governments to reach agreement between unions and employers for exceptions to the rule.

The European Trades Union Congress (ETUC) has welcomed the move, and one diplomat commented: “Reaching a compromise on temporary workers should not be a major problem.”

CJCE & jurisprudenta in materia actiunii nominative de control (”golden share”)

 Larry Catá Backer - “The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law” . Tulane Law Review, Vol. 82, 2008 (*)

This Article examines the development of a European framework for considering the law applicable to state private interventions in the market, both their own and those of other states through direct investment or through sovereign wealth funds. For this purpose, it closely analyzes the so-called golden share decisions of the European Court of Justice delivered between 2002 and 2007, through which the ECJ sought to apply the free movement of capital provisions of the European Treaties to vestigial issues of the construction of a post-socialist political economy in Europe. The Article then applies those insights in three distinct cases of sovereign participation in private market activity: the purchase of shares of a domestic company by a state; the purchase of shares of a foreign corporation by a state; and the purchase of shares by a multi-state sovereign wealth fund. It suggests the importance of the state aids jurisprudence of European Competition Law, a different result under American law, and the tensions inherent in the rising European jurisprudence with the parallel development of principles of foreign sovereign immunity.The central point of the Article is this: Traditional choice of law analysis is grounded in a stubborn belief in the separability of public and private law, and positing issues of conflicts (and choice) of law as a central problem of private law for transactions among several jurisdictions. This grounding misses an important new development in conflicts (and choice) of law as well as the substantive consequences of those choices. That development, in turn, is founded on the growth of a new phenomenon, the increasing tendency of states to behave like private actors (participating in markets) rather than as sovereigns (regulating markets).

The general framework of the analysis has been choice of law related, but not in the traditional sense. Traditionally, the activities of sovereigns, either as regulators or participants did not raise issues of either choice or conflict of laws. But all that is changing. Modern globalization has effectively introduced a global advance toward free movement of capital and to greater protection of private activity from regulation. At the same time, states have sought to act more energetically as private as well as public actors. In a global legal order in which the value of state sovereignty has diminished and the cross border element of transactions has increased, states can extend their authority as private actors to an extent difficult when they seek to regulate as sovereigns. States privatize their traditional activities or seek to regulate indirectly by acting in markets.

It is in this emerging jurisprudential milieu that issues of choice of law arise - when states seek to participate in markets, does private or public law apply?; and whose law applies in any case? The essay offers no answers to these questions. It suggests that the European Court of Justice’s golden share cases provides an excellent window on a difficult issue of choice of law, and a revolutionary one. The transnationalization of corporate law norms provides an opportunity not only to examine the changing landscape of choice of law in private law, but also the creation of a new set of vertical choice of law questions, and the substantive consequences of their adoption.

 

Consecintele hotararii Laval: intreprinderea cere daune sindicatelor

Da, in (fericita) ipoteza in care v-ati intrebat care sunt consecintele hotararii Curtii de Justitie, ei bine, trebuie sa stiti ca Laval, intreprinderea patita, cere in instanta (nationala) daune de aproape juma’ de milion de euro de la sindicatele (suedeze) care au organizat blocada…

Vom reveni si cu alte ocazii asupra solutiei CJCE, in masura in care, in “cele trei”, instanta a creat istorie (si poate si putina confuziune).

Din The Local, ziar suedez:

Laval wants Swedish builders union Byggnads and the Swedish Electricians Union to pay 2.8 million kronor ($465,000) in damages, as well as legal expenses incurred by the Latvian construction company in connection with Vaxholm wage-dumping dispute.

Laval specified its damage claim on Tuesday in the Swedish Labour Court.

A subsidiary to the Latvian firm was hit by a union-ordered blockade in November 2004 after negotiations on a collective wage agreement with Byggnads failed.

The company eventually withdrew from the school -renovation project in Vaxholm outside of Stockholm and the contract it had with the municipality was torn up. Laval’s Swedish subsidiary has since gone bankrupt.

In December 2007, the European Court of Justice ruled that the blockade was not allowed and that Byggnads went too far in ordering a blockade of the Vaxholm work site.

The judgment in the so-called Vaxholm wage dumping case was a major blow for Sweden’s unions and for the Swedish government, which had supported Byggnads in the case.

Sweden’s Labour Court made a provisional ruling on the case in March in 2005, finding that the builders union’s blockade didn’t break the rules. But the Labour Court didn’t make a final ruling, choosing instead to turn to the EU court for assistance with the case.

The Latvian government protested against Sweden’s approach to the matter, viewing the blockade as a crime against the EU constitution which guarantees free movement across borders within the EU.

Germania. Legea Volkswagen ramane (modificata) cam la fel. Comisia avertizeaza, iar Porsche sesizeaza “trebonalu”

Stirea aici. In esenta, autoritatile Landului Saxonia inferioara pastreaza un veto (de facto) asupra deciziilor adoptate de organele societatii in cauza (ori “companiei” sau “corporatiei”).

Si o actualizare cu referire la pozitia Comisiei Europene:

“If the current situation is formalized, the European Commission has to start a procedure for non-respect of a court ruling on this matter,” Oliver Drewes, a spokesman for EU Internal Market Commissioner Charlie McCreevy, told reporters at a regular briefing.

Si aici.

O alta actualizare se refera la sesizarea instantei de catre Porsche, cel mai important actionar al societatii germane:

Frankfurt, Germany (AHN) - Luxury sports car maker Porsche, the biggest shareholder of Volkswagen, on Tuesday filed a court petition challenging the vote of a VW general assembly to reject proposed amendments to its bylaws.

The lawsuit is Porsche’s latest tactic to secure control of Europe’s largest carmaker.

Porsche says the blocking power of Germany’s Lower Saxony, Volkswagen’s home state, is no longer valid after a European Court of Justice ruling last October. However, the state and the German government argue that the court ruling does not affect the state’s minority blocking level of 20 percent.

Agence France-Presse says this percentage gives Lower Saxony veto rights over key VW decisions such as plant relocations or closures.

“The action is aimed at clarifying the legal situation,” Porsche said in a statement carried by AFP, adding, “A partial application (of the European court ruling) … as called for by Lower Saxony during the VW general assembly, does not help clarify matters but increases confusion.”

(…)

Purcedem la o alta actualizare: pozitia ministrului federal al Justitiei:

Germany’s justice minister on Thursday defended plans to salvage part of a law governing Volkswagen AG that was ruled illegal by a European court, telling company employees that the European Commission would be “ill-advised” to take new legal action.

The commission has said Germany should scrap plans to keep the rule, which gives the automaker’s second-largest shareholder — its home state of Lower Saxony — the ability to block major decisions. The commission has said it may go to court again.

However, the German Cabinet on Tuesday approved a draft law that includes that provision.

Justice Minister Brigitte Zypries told an assembly of some 10,000 workers at VW’s Wolfsburg headquarters that she is confident the plan complies with last year’s ruling from the European Court of Justice.

“The Commission would be ill-advised to go down the judicial path again — that would be very thin ice,” she said. Zypries added that Germany would not be “put off by individual opinions from Brussels.”

Zypries said she would inform competition authorities in Brussels that the planned legislation is “a good, correct and important law for the form of economies that we want to have in Europe.”

Irlanda. Despre consecintele netraducerii contractelor de munca ale lucratorilor straini

“Equality ruling favours foreign workers“. Stirea suna astfel:

COMPANIES who employ foreign workers face the prospect of substantial compensation claims after one employer was ordered by the Equality Tribunal to pay €290,000 to 58 staff because it did not translate work contracts.

Dublin-based Goode Concrete said it will challenge the tribunal’s ruling in favour of its staff, which was published yesterday.

Each of the workers was granted €5,000 on the grounds their contracts and safety documents were not produced in their own language or translated by an independent party.

This award came to €290,000 with a further €37,000 for three employees the tribunal said had suffered from stress and discriminatory treatment.

Orla Goode, the company’s human resources officer, said it would challenge the ruling in the Labour Court. She claimed, if allowed stand, the decision would allow any worker whose contract is not in their home language to make a legitimate discrimination claim.

“On the basis that there are 330,000 foreign nationals working in Ireland whose contracts are more than likely printed in English, this could cost employers €1.6 billion.

“And it is not just the cost of any claims, but also the future cost of translators. Russian would be the main language in our company, but we have staff who are able to translate without bringing in somebody specially at a cost,” she said.

Last night, a spokesman for the Irish Business and Employers Confederation (IBEC) said it was aware of the case. “We are studying the matter, but we are not making any further comment at this stage,” it said.

In its ruling, the tribunal said the firm breached equality legislation by not providing the 58 staff members with documents they could understand.

“Their terms and conditions of employment and safety documentation were not set out in a language which was understandable to each of them or where there is no evidence that these terms and conditions of employment were explained to each of them by a person speaking a language they understood who was appointed by Goode Concrete Limited for this specific purpose,” it said.

Separately, the tribunal rejected 32 claims of harassment and 8 claims of unfair dismissal by the workers after the case was made on their behalf by PC Moore solicitors. The workers had argued they faced summary dismissal if they appeared drunk in work.

In the case of two men, Vladimirs Petrovs and Arvydas Valusis, the tribunal said they had been fired on the basis of their nationality and they were awarded €10,000 and €25,000 respectively.

Goode Concrete was also told to pay Aleksanders Petrovs €2,000 for not telling him the implications of extending his Christmas holidays.

The National Employment Rights Authority said it does not comment on individual cases. However, it said the legislation relating to terms of employment requires bosses to provide written work conditions, but this act makes no specific reference to the language of such documents.

(Franta) Consiliul de Stat. Actiune preliminara la CJCE privind regimul juridic al pariurilor hipice

CJCE a fost sesizata prin decizia N° 287503, SOCIETE ZETURF LIMITED.

Intrebarile adresate CJCE suna astfel:

1°) Les articles 49 et 50 du traité instituant la communauté européenne doivent-ils être interprétés comme s’opposant à une réglementation nationale qui consacre un régime d’exclusivité des paris hippiques hors hippodromes en faveur d’un opérateur unique sans but lucratif laquelle, si elle semble propre à garantir l’objectif de lutte contre la criminalité et ainsi de protection de l’ordre public d’une manière plus efficace que ne le feraient des mesures moins restrictives, s’accompagne pour neutraliser le risque d’émergence de circuits de jeu non autorisés et canaliser les joueurs vers l’offre légale, d’une politique commerciale dynamique de l’opérateur qui n’atteint pas en conséquence complètement l’objectif de réduire les occasions de jeux ?

2°) Convient-il, pour apprécier si une réglementation nationale telle que celle en vigueur en France, qui consacre un régime d’exclusivité de gestion du pari mutuel hors hippodromes en faveur d’un opérateur unique sans but lucratif, contrevient aux articles 49 et 50 du traité instituant la Communauté européenne, d’apprécier l’atteinte à la libre prestations de services du seul point de vue des restrictions apportées à l’offre de paris hippiques en ligne ou de prendre en considération l’ensemble du secteur des paris hippiques quelle que soit la forme sous laquelle ceux ci sont proposés et accessibles aux joueurs ?

Decizia in intregime aici.

Desigur, aici ar fi de discutat. Cu alte detalii altcandva.

CJCE & campania pentru referendumul asupra Tratatului de la Lisabona in Irlanda

Urmare a celor trei hotarari ce au “zdruncinat” (ca e la moda cuvantul acesta) sau nu (aici ar fi necesara o discutie intreaga) modelul social european, [evident este vorba despre Viking, Laval, Rueffert, despre care am mai scris aici, pe blog, si probabil despre care vom mai scrie...], s-au revoltat sindicatele din Irlanda.

Stirea, din EUObserver, suna asa:

The Irish government’s official campaign in favour of the EU’s Lisbon Treaty has been dealt a blow following the decision by a major union to speak out against the document.

The Technical Engineering and Electrical Union on Monday (5 May) urged its 45,000 members to vote against the treaty in the referendum next month.

General secretary of the TEEU Eamon Devoy took the stance on the back of recent judgements by the EU’s highest court which he said had shown that the pendulum had “swung against workers’ rights and in favour of big business.

“In the circumstances, it would be foolish to provide the institutions of the European Union with more power,” he added, according to the Irish Independent.

Si se continua aici (*). De asemenea, se poate citi cu folos un comentariu intitulat “Giving a free hand to the market?” (*).

Actualizand informatiile, e de mentionat si pozitia Sinn Féin: “Yes vote threatens public services“, care critica sa-i spunem “agenda neo-liberala” a actorilor comunitari.

Germania. Din nou despre Legea “Volkswagen”

Germany not fully complying on ‘Volkswagen law’: EU

(BRUSSELS) - Planned German changes to a law protecting automaker

Volkswagen from takeover bids are insufficient, a spokeswoman for the

European Commission said on Thursday.

“We have written to Germany about the ‘Volkswagen law’,” the

spokeswoman to EU Internal Market Commissioner Charlie McCreevy

said.

The VW law was introduced in 1960 as Volkswagen, founded by the Nazi

regime before World War II, was being privatised, and was designed to

shield the group from foreign takeover attempts.

The crux of the law is that regardless of the amount of capital it owns, a

shareholder cannot hold more than 20 percent of the voting rights in a

company.

Last year Europe’s top court ruled against the VW law.

“They haven’t fully complied with the court judgment, the commission

spokeswoman Catherine Bunyan said.

“The draft amendment under consideration doesn’t take into account

the whole remarks of the court,” in particular on the 20 percent voting

threshold, she said.

German Justice Minister Brigitte Zypries aims to retain a clause in the

Volkswagen law that requires 80 percent of shareholders to approve

decisions, compared with the 75 percent most common among other

companies.

That clause gives the German state of Lower Saxony, holding 20.3

percent of voting rights, a de-facto blocking minority.

The EU commission spokeswoman said that an “ordinary letter” had

been sent to the German justice ministry and was not the start of a

formal infringement procedure, adding that there was no fixed deadline

for Germany to respond.

The European Court of Justice had ruled that certain clauses of the socalled

Volkswagen Law violated EU laws on free movement of capital.

Zypries reacted promptly to the letter with one of her own to express

Germany’s point of view.

The text said Germany saw in the October court ruling “no sufficiently

explicit declaration” that supported the EU’s position.

Zypries argued that the minority blocking stake did “not limit the free

movement of capital.”

A ministry spokesman told AFP: “We are now awaiting the Commission’s

reaction. We hope we have convinced them.”

Porsche, which currently owns 31 percent of VW shares and plans to

raise its stake to more than 50 percent at an unspecified date, has

urged the German government to scrap the VW law altogether, after

officials said they were working on a new draft that would pass EU

muster.

 

Sursa Alta relatare (x)

Franta (Adunarea Nationala). Raport de informare cu privire la monopolul asupra jocuri(lor de noroc) din perspectiva dreptului comunitar

Interesant. De citit aici (*).

Raport elaborat in cadrul Senatului francez: Où en est la transposition de la « directive services » ?

Asupra, evident, faimoasei Directive 2006/123, care acum trebuie transpusa in dreptul statelor membre…

Raportul aici (*).

Norbert Reich. Articol despre cauzele Laval & Viking. Sau, cu alte cuvinte, libera circulatie vs. drepturile sociale in UE

Articol foarte elaborat. Cine este dl. Reich? Ei bine puteti afla mai multe aici (*). A mai scris si alte lucruri f. interesante.

Free Movement v. Social Rights in an Enlarged Union: The Laval and Viking Cases before the European Court of Justice (*)

 in 9 German Law Journal No. 2 (1 February 200

Hotararea CJCE in cauza Volkswagen & modificari legislative in Germania…

In toamna, CJCE s-a pronuntat asupra “Legii Volkswagen” (*). De atunci…

Comunicatul de presa al Ministerului federal de Justitie, cu anuntul de modificare a regimului juridic national (*).

Stirea suna asa:

German Law Seeks to Maintain the State’s Role in Volkswagen (*)

FRANKFURT — Three months after being repudiated by Europe’s highest court, Germany plans to salvage a central provision of a law that safeguards the role of the state in Volkswagen, the nation’s largest carmaker.Under a draft of the new law, made public on Wednesday by the German justice ministry, Volkswagen could make radical changes like shutting down or relocating an assembly plant only with the approval of shareholders representing one share more than 80 percent of its share capital.

Since the state of Lower Saxony owns 20.3 percent of Volkswagen’s shares, the law would enable it to block such moves. Lower Saxony has historically defended the interests of auto workers at Volkswagen, and analysts said the law amounted to a form of worker protection.

“It’s clear the politicians and the trade unions want to retain their influence over this company,” said Ferdinand Dudenhöffer, the director of the Center for Automotive Research in Gelsenkirchen.

Germany disclosed the new law a day after Nokia, the Finnish mobile phone giant, announced it would shut a factory in the industrial Ruhr region, a decision that is likely to cost 2,300 jobs. It also came two weeks before crucial elections in Lower Saxony, where Volkswagen is based.

The draft law could have implications for Porsche, the maker of sports cars, which has amassed 31 percent of Volkswagen’s shares over the last two years and is likely to acquire a majority stake this year.

Porsche executives declined to comment, but people in the auto industry familiar with their thinking said they were not pleased. The company had welcomed the decision of the European Court of Justice, which ruled in October that the Volkswagen law restricted the free flow of capital in Europe.

Still, Mr. Dudenhöffer said he doubted that the new law would deter Porsche from its pursuit of Volkswagen. “Porsche will be so strong that it will be able to find solutions to the blocking minority,” he said.

Stock in Porsche fell 2 percent Wednesday, while stock in Volkswagen rose 2 percent.

A spokesman for Volkswagen, Andreas Meurer, said, “We are the object of this law, so we aren’t speaking about it.”

Germany’s justice minister, Brigitte Zypries, did say the government would drop a central part of the old law, which capped the voting rights of shareholders at 20 percent, regardless of how many shares they own.

The voting cap was the biggest hurdle to Porsche, or anyone else, trying to take over Volkswagen. It was also the provision most criticized by the European Court of Justice in its ruling in October.

“We wanted to preserve the proven VW law as far as possible, and only nullify the provisions that were declared to be against European law,” Ms. Zypries said in a news release.

But in its ruling, the European court also frowned on the requirement that shareholders representing 80 percent of Volkswagen’s shares must approve major changes for them to take effect, which was also part of the old law. Under German law, it noted, a 75 percent majority is normally sufficient.

Lawyers here said it was not clear that the law would pass muster with the European Commission, since it treats Volkswagen differently from other companies to protect Lower Saxony’s position.

Brussels has sued Germany to strike down the four-decade-old Volkswagen law.

“The government might be trying to test the temperature of the European legal community,” said Peter-Christian Müller-Graff, an expert in European law at the University of Heidelberg. “I don’t think the legal discussion is finished. Probably, they are buying some time.”

As a practical matter, Volkswagen can make a host of decisions without needing the approval of shareholders.

Ofertele publice de cumparare. Deficientele directivei.

Un comentariu stilizat la Directiva 2004/25/CE a Parlamentului European și a Consiliului din 21 aprilie 2004 privind ofertele publice de cumpărare.

 Thomas Papadopoulos, The mandatory provisions of the EU Takeover Bid Directive and their deficiencies, Law and Financial Markets Review, Volume 1, Issue 6, November 2007, Vol 1 Issue 6 (November 2007).

Abstract

The two key provisions of the EU Directive on Takeover bids, the Board Neutrality (Article 9) and the Breakthrough Rule (Article 11), are optional at Member State and individual company level. According to the Directive’s Reciprocity Rule, a target company that applies the Board Neutrality and/or Breakthrough Rule is able to opt out, if the offeror company does not apply the same Board Neutrality and Breakthrough provisions. Some of the few obligatory substantial provisions of the EU Directive on Takeover Bids are the Mandatory Bid Rule (Article 5), the squeeze-out right (Article 15) and the sell-out right (Article 16). The purpose of these provisions is to protect minority shareholders according to the legal basis of the Directive (Article 44, paragraph 2g EC Treaty). However, the Directive itself provides the possibility to evade the enforcement of these provisions: (i) at the transposition of the Directive into the national law, and (ii) after the implementation stage, when the parties to a bid are obliged to launch a mandatory bid.

            Additionally, the provisions themselves are characterized by many drawbacks and problems of interpretation, which reveal their weakness to contribute to the protection of the shareholders and subsequently to the freedom of establishment through takeover bids. Furthermore, the most important mandatory provisions of the Directive are easily avoidable and become de facto optional. If this conclusion is combined with the optionality of the two key provisions and the Reciprocity Rule, the EU Directive will not have any significant effect on the integration of the European Market for Corporate Control, the promotion of cross-border corporate mobility, the protection of shareholders and the protection of freedom of establishment in general. The Directive does not really ‘exist’. This Article analyses the most important mandatory provisions of the Directive, namely the Mandatory Bid Rule (Article 5), the squeeze-out right (Article 15) and the sell-out right (Article 16).

J. Pelkmans - articol despre servicii in piata interna

In ultimul numar (decembrie 2007) al Romanian Journal of European Affairs articol f. interesant.

DEEPENING SERVICES MARKET INTEGRATION - A Critical Assessment
Jacques Pelkmans
                                                      

Abstract: The greatest asset of the European Union is undoubtedly its internal market. However, the internal market is not completed: it suffers from a giant hole with respect to many services. The present contribution addresses the status of services in the internal market and, in particular, the horizontal liberalisation (or, the lack of it) of services outside the two large sectors which greatly deepened market integration (6 modes of transport and 3 financial services markets). Because a horizontal perspective on services in the EU is still little understood, it is briefly summarized what services really are and how their regulatory logic in the internal market can help to classify them. The (strong) economic case for deepening services market integration is built on recent empirical economic analysis as well as simulation. This is followed by a discussion, with flowchart, of the Bolkestein draft directive, against the backdrop of the frustrating lack of, or at best, selective progress on services for decades. A survey of economic impact studies of the draft directive is provided, too, underpinning its importance even when the infamous origin principle is taken out. Some light is subsequently shed on the tumultuous politicisation of the services debate. Emphasis is laid on the socio-economic context (which, it is submitted, sharpened the discussion at times into polarisation) and a series of other factors such as the diversity of the national regulatory frameworks of services and the labour employed, the complexity of the draft directive, the potentially radical nature of the origin principle (especially for those not aware of the case law of the ECJ), the dominant role of the EP and the opportunism of leading national politicians. Finally, directive 2006/123 -meanwhile in force - is explained and briefly assessed. Apart from the conspicuous manifestation of ‘Angst’ in drafting the directive, the (de) merits are set out. The conclusion is that a badly drafted directive with excessive emphasis on exclusions and derogations, and which lacks a driving principle, nevertheless comprises several functional obligations in general (e.g single window, administrative cooperation in dedicated networks, etc.), significant advantages for free establishment (which imply equally significant economic gains) and a firm discipline for (or prohibition of) bad practices with respect to temporary provision of services.

Aici (*).

CJCE- hotararea in cauza Laval

Despre cauza Laval, ca si despre cauza Viking se va scrie mult si, poate, cu folos. Oricum, hotararea de fata nu e atat de suprinzatoare cum este, evident, Viking. Detalii alta data. Acum stirea:

EUOBSERVER / BRUSSELS – The EU’s highest court has delivered a blow to the Swedish system of collective bargaining – seen as underpinning the country’s highly successful social model - by ruling that Swedish unions cannot force a foreign company to observe local pay deals. In a keenly awaited judgement, the court said that a trade union blockade which forced a Latvian company using cheaper Latvian labourers into bankruptcy was illegal. “Such action in the form of a blockade of sites constitutes a restriction on the freedom to provide services, which, in this case, is not justified with regard to the public interest of protecting workers,” said the court. The case arose in 2004, shortly after eight central and eastern European states with cheaper and more flexible labour forces, joined the European Union and was seen as a testing ground for member states with a more rigid and socially protected workforce. The dispute centred around wages with the trade unionists urging Latvia’s Laval - building a school in the Swedish city of Vaxholm - to pay higher Swedish construction sector wages to its Latvian workers. The company refused leading the unionists to block the site eventually forcing Laval to leave. But the court said that while such collective action can sometimes be justified under community law to protect against social dumping – using workers with less social rights and lower wages - it cannot be used to force a company to enter into negotiations on pay where it is not clear what the outcome will be. “Collective action cannot be justified with regard to the public interest objective of protecting workers where the negotiations on pay (…) form part of a national context characterised by a lack of provisions,” said the court. The court also said that union action forcing foreign companies into wage negotiations of “unspecified duration” is liable to make it “less attractive or more difficult” for a company to carry out construction work and “therefore constitutes a restriction on the freedom to provide services.” The freedom to provide services is a key pillar of the EU’s internal market rules. In a more positive note for trade unions, it said that if collective action is aimed at giving workers rights, which are already defined in national law, then it is justifiable under EU law.

The Nordic states say the collective system is the basis for their highly successful Nordic social model, which sees high employment and high social protection. Reacting to the case, leftist Danish MEP Soren Sondergaard said it was a “catastrophe for the Nordic model, where trade unions have the right to protest against employers to secure decent collective agreements.” The Laval case stirred an impassioned debate in the EU as it was seen not only as a fundamental dispute between ‘old’ and ‘new’ member states but also whether the EU’s internal market rules would trump rules on social protection. At the time, internal market commissioner Charlie McCreevy caused outrage in Sweden by saying that he would argue against the country in the court case. Reacting to the judgement, the commission on Tuesday said it was a “very nuanced” ruling and that it would analyse it “very carefully.” But it drew attention to what is set to be a key part of the ruling which states that organisations in one member state must take into account collective wage agreements of a foreign company “irrespective” of their content, or risk breaching EU law.

CJCE- Hotararea Viking Line… ce scrie presa

LUXEMBOURG: The European Union’s highest court ruled on Tuesday that trade unions can in principle take action to prevent employers from using cheaper workers from EU countries with fewer labor rights.

But unions criticized the European Court of Justice for setting conditions to workers’ hard-won right to strike collective wage deals that uphold a basic rate of pay and working conditions. The court tried to balance that against the rights of EU companies to do business anywhere in the 27-nation bloc.

The court said unions could take action to protect jobs and existing employment conditions, but it could not stop an employer from being based wherever it likes.

The case involved loss-making Finnish ferry company Viking Line, which reflagged one of its ships to the Baltic republic of Estonia — an EU member since 2004 — to take on cheaper Estonian workers and compete with other lines operating between Helsinki and Tallinn. The move angered unionized Finnish employees on the ferry.

This exposed Europe’s new faultline as people from the EU’s poorer eastern European nations seek work in higher-wage nations with generous welfare systems.

The Finnish Seamen’s Union asked the British-based International Transport Workers’ Federation to intervene. The ITF did so by formally asking its members not to negotiate with Viking Line, prompting the company to lodge a court case in England. The English court asked the EU court to give guidance on how it should interpret European law.

The Luxembourg-based court ruled that industrial action is legal “only if it pursues a legitimate aim such as the protection of workers,” and left it for the national courts to determine whether steps by the Finnish union and the international federation were justified.

“We would have welcomed a more clear and unambiguous recognition of the rights of unions to maintain and defend workers’ rights and equal treatment and to cooperate cross border, to counterbalance the power of organized business that is increasingly going global,” said John Monks, General Secretary of the European Trade Union Confederation.

The court will rule next Tuesday on a similar case where Swedish unions picketed a Latvian construction firm building a school with workers paid less than the usual Swedish rate.

Since its expansion to include eight mostly poorer eastern European nations in 2004 and two others in 2007, the EU has struggled to agree on how to allow fair competition within fractured national labor markets.

The row over which country’s rules companies should follow while working in another EU state has reflected concerns about low-wage Eastern European workers threatening jobs in better-paid nations such as Finland, Sweden or France, where fears of a wave of migrant “Polish plumbers” led voters to reject the EU Treaty in 2005.

Hundreds of thousands of people, many of them from the largest EU newcomer nation Poland, have taken advantage of the EU right to work abroad by seeking jobs in Britain and Ireland, two of the three nations that did not initially impose barriers to eastern European workers in 2004.

Associated Press (*)

Alte relatari aici (*) si aici (*).

Hotararea ridica probleme semnificative; detalii cu alta ocazie.

PS. Celalta hotarare, saptamana viitoare.

Franta - Proiect de lege privind nationalitatea echipajului navelor

… povestea e mai lunga, si a inceput printr-o hotarare din jurisprudenta istorica a CJCE, pronuntata in 1974… the story goes on & on…

Nationalité des équipages de navire : le projet de loi adopté en première lecture par les sénateurs

Le projet de loi relatif à la nationalité des équipages de navire a été adopté par le Sénat en première lecture le 18 septembre. Présenté en Conseil des ministres le 25 juillet 2007, le texte ouvre la fonction de capitaine et d’officier chargé de sa suppléance à bord des navires battant pavillon français « aux ressortissants de la Communauté européenne, des autres États parties à l’Espace économique européen et de la Confédération suisse », permettant ainsi à la France de se conformer au principe communautaire de libre circulation des travailleurs. « L’accès à ces fonctions est subordonné à la possession de qualifications professionnelles et à la présentation d’un diplôme attestant d’une maîtrise de la langue française et de la possession de connaissances juridiques ». Les modalités seront précisées par un décret, pris après avis des organisations représentatives d’armateurs et de gens de mers.
Un amendement remplace les articles 28 à 30 de la loi du 17 septembre 1926 portant Code disciplinaire et pénal de la marine marchande et précise les dispositions procédurales et les pouvoirs disciplinaires du capitaine, lequel peut ordonner « la consignation (…) d’une personne mettant en péril la préservation du navire ». Il est investi de « pouvoirs d’enquête de flagrance » qui « s’appliquent aux crimes flagrants et aux délits flagrants lorsque la loi prévoit une peine d’emprisonnement ».
Transmis à l’Assemblée nationale, le projet de loi est renvoyé à la commission des affaires économiques, de l’environnement et du territoire.

 Sursa