The cases reported concern the assignment of claims to third-party litigators, limitation periods, and the consequences of the competition law concept of a ‘single economic unit’ with regard to the jurisdiction of national courts under the Brussels I bis Regulation. For example, in ASG 2, the Court of Justice was asked whether EU law requires that collective redress, in some form, be available in the Member States, but allowed the Member States a rather wide margin of discretion on the matter. Another example was Heureka, in which the Court of Justice ruled that EU law precludes national rules on the limitation of follow-on damages actions if they do not provide for the limitation period to be suspended, at the very least, until one year after the date on which the public enforcement decision finding an infringement has become final. As the case law develops, we gain legal foreseeability in private enforcement of competition law that will, in turn, further increase incentives to seek compensation for harm caused by infringements. This survey reports developments in private enforcement of EU competition law in the years 2024 and 2025, up until 31 May of the latter year. As there have been no news in EU regulation during this period, the report focuses on case law developments. Private enforcement of competition law takes the form of civil litigation. As a consequence, it falls under the jurisdictions of national courts and will only find its way to the Court of Justice of the European Union (CJEU) through references for a preliminary ruling. For the purposes of this report, this also means there have been many cases before national courts that will be interesting but cannot be covered here. To offer just two examples, the infamous trucks cartel1 and the Booking.com infringement2 have both given rise to an array of damages claims across European jurisdictions.3 The CJEU case law to be reported mainly concerns three core aspects that will each be covered in one of the sections below. First, whether national law can preclude or restrict the possibility for victims of an infringement of competition law to assign their damages claim to a provider of legal services (a ‘third-party litigator’). This is an issue of fundamental importance to the business model of certain providers active in the private enforcement of competition law. Second, several cases referred to the Court of Justice have concerned limitation periods that apply to damages claims, whether or not the rule on limitation periods in the 2014 Competition Damages Directive4 is temporally applicable in the proceedings. A new case on this issue is reported below. Third, issues related to jurisdiction and other procedural the is an that both and and to the victims of the and core issues that have been further I will a for a preliminary which is before the Court of the of on damages the a and will be The and of for a of victims of an infringement of competition law is a business in the The business model on the of victims to assign their to claim damages to a will the claims and a of the damages if The case reported ASG concerned whether a national limitation of this was with EU law. As in in this it is that damages claims for an infringement of competition law and some form of collective and have that victims of the infringement have to The for will be for to with for each be a rather of actions by providers of legal services in for the collective of victims can to the of for and to This preliminary by a the in the of a for damages for harm caused by an infringement of The infringement in a of for by a of during the period to The victims of the in and The was The victims their to damages in of the infringement of competition law to a third-party ASG which in the proceedings. its to the national the the of a it was under law to assign to damages in a of for the purposes of a for this not been for harm caused by an infringement of competition law. the under the by the victims to the be the was also concerned whether an of law was with EU law. The referred to the Court of Justice for a preliminary was in whether EU law precludes national law victims of an infringement of competition law to assign their to damages to a provider of legal The Court of Justice that EU law the possibility of actions for the of compensation but not for Member States to a for The Court of Justice to the referred under the EU law of the national its in to that As I will this is a to ASG with some this for the the issues in the case whether law collective that an to a for whether the for an it or to the to The Court that the of claims the and economic in actions for in the Court not in that it was to the of if victims to their claims the Court of Justice ruled that EU law an of national which the of victims of an infringement of competition law their to compensation to a provider of legal that a only if national law not provide for other possibility of the claims of victims that the of to and the of an for damages was or The Court of Justice not been asked whether EU law requires that collective redress, in some form, be available in the Member ASG is an The Court a to the the Member States a rather wide margin of The of only claims to the there no in national law that claims for certain in the that a for the to with First, the Court of Justice very that the national not it to other of EU law the of the Court the to also the to in of the in its it not the of the national the of in its it is that it have been the Court of Justice to that actions for the of damages rather and under and that it they be available in follow-on the of the actions on EU law not be actions under national law. the Court of Justice has actions with a and the be in it rather that the of will for actions for the of damages to be available in actions if they available in follow-on actions for damages by of an infringement of competition law. The of also to the if actions for the of damages available for other actions under that the actions have a and the of the 2014 Competition Damages there have been several cases in which the Court of Justice has been to the of national limitation periods with the rules of the with or and of EU law. several the core issue has been at in the rules in the temporally in other to the EU law before the 2014 Competition Damages to EU law under that This has been an issue in to of the which its rules on limitation of damages issues in the case law have been the a that on which date the applicable national limitation period can to and under limitation periods be or A new to this of the case law. This one of many cases of its in the of is also a by in the of in of The Court of Justice has not its in the latter this the legal issues will be covered in of the cases on limitation periods in competition damages actions is in which the Court of Justice ruled that and the of preclude a limitation period to if the was of the of the not possibility of or that period during before the national competition As we will the and in Heureka, the that its by its services to the of services This by the of to to The before the of the 2014 Competition Damages on and after the of the for the of the rules of the national law on that claim was under the applicable limitation rules of the at with regard to the period to The limitation period was three and to the the or have of the harm and the of the to of the a limitation period of The the asked the Court of Justice whether EU and in of the and the of preclude a national limitation period applicable to actions for damages for an infringement of competition which to the or be to have that it harm and the of the to compensation for the and which is not during public enforcement it was not whether the 2014 Competition Damages be applicable in the the Court of Justice the a issue a of the of and that the Court that the of the to compensation for harm caused by an infringement of competition law be or if the limitation periods applicable to actions to before the infringement to an and the not or not have been to the for its for The Court an two to the by the national The of the was that a limitation period not to before the infringement has to an The Court of Justice that a was in to it for the to its of in to the of an the of and the the the Court and there is an to the of the The Court with in that the that a limitation period not to before the infringement has to an an to their The of the was that limitation periods cannot to before the or be to the for its for The at the Court of Justice of an infringement of competition the of the that harm and that and the of the the Court with the of a decision the infringement at issue in the EU if the decision was under This was a decision has it has not been and can on the decision to their for damages the the Court also it is in some that gain the at an it be for the in the damages to that the the at an in the case that limitation periods in actions for competition damages cannot to until be the of the infringement of competition law and of the for an for damages with the for the a in of the 2014 Competition Damages As a of in Heureka, there is very the and for damages actions by of an infringement of EU competition at damages actions a decision it is that the is not or it is whether it is the Court of Justice is law in a which very the rules in the the Court is the of the rules in the to law This is not but it is The of the is that it and legal the and to be but consequences for the the Court a in not to across the rules and of for rules that by the EU of this the and the case law is also new and very that will apply under the 2014 Competition Damages they have been on a of law. For a rule of on a can be to the of of the that a certain an infringement of competition a decision on the is will have This the Court to the possibility for the to that the at an The case concerns the but in the has been national public enforcement of competition law. in has that the core of the case is at a will have of the which that to an for for the purposes of follow-on the claim the can on a decision that is of legal the of the the a be on the date the national decision has become we that in the decision not to be final. that it the of legal and the of follow-on in the of to for the national decision to be this is to the of the in Heureka, the of the was not whether the decision was but whether it the infringement to the of The legal by the be by rules on the or of limitation periods in damages actions during public enforcement proceedings. This to the legal Heureka, the Court of Justice also whether and the of for the limitation period to be or during this the Court that the or of limitation periods for the of in to to their actions for the Court also it was not to to or limitation periods during an of the the decision by the be by the if it not of the Court provide an example of a to the rule in of the 2014 Competition Damages that the at the one year after the infringement decision has become or is or national infringement under the and the of do not the limitation period to to be until the the decision this I to the of in that national be a for the a As I for the purposes of the I that the by the form a for the national limitation period until the national decision has become final. The of rules in the 2014 Competition Damages on the of its rules or the of its of the not apply that not apply to that have to an before the national rules rules not apply to damages claims which a national was to other the of rules on the infringement has and on the national rules the of other rules on and the Court ruled that a and not be with but also that an for damages which is after the of the national it national law the of if the national limitation period not before the of the for of the The consequences of this further in the Court of Justice the national limitation period by that the national the of rules on limitation periods, that have the the national its of the claim by this and that the infringement not on the Court further that it its that the limitation period not have to on that As a consequence, of the 2014 Competition Damages was in temporally applicable to and to be that the Court that it was for the national to the rule in to the Court of case law on the of rules in the of the limitation period, through the of to the of the rule in I to that it is a in to the and of the in Heureka, which the for on the of this has with the on in and will the The private enforcement of competition law in issues of jurisdiction and that can be the case law of the Court of Justice on and several a of a economic has for to their the in The Court has a in its case but in the cases reported they also some to their in a case the Court has not its preliminary is also The issues at in cases to the concept of the the the of of the Brussels I bis in to the competition law concept of a economic to the rule on jurisdiction under of the Brussels I bis in to the concept of a ‘single economic and to to a a economic issues will be covered in For damages claims, of the Brussels I bis jurisdiction to courts for the the or a of or a of trucks the the The was the in the that the the been by the trucks with to the decision in the was the The was the Court of and the legal issue in its concerned The on of the Brussels I bis and it and its a economic its be covered by the concept of the the the of harm by that economic only its in other Member States in to have harm and the not to have The claim on a of the economic its the Court of Justice that in it that of the Brussels I bis jurisdiction to Member States on the of whether the by an infringement of competition law is in that Member that not consequences can be will be and that consequences of harm the by the Court of Justice that there was no in its case law for the of the economic by the The Court further that the of the was at with the of the Brussels I bis an of the of and of the rules and that victims of an infringement of competition law other the Court that the concept of a economic not be to jurisdiction in the by the The that the Court of Justice have been in its of the economic to private enforcement of competition it is not to will be and the by the in this case was a to the claims a of and this can be in but at the of the the rule is that jurisdiction is at the or of the jurisdiction is under the rules of the Brussels I bis and case but jurisdiction is not it be to that is a of the of the latter an is several of the Brussels I bis jurisdiction to courts for the one of is the claims that it is to and to the of This is in damages claim several and the is a of or a of that form a economic the of competition law. the core issue was whether a national its in an for damages a and its and for an infringement of competition by on the of the and in case law. The in the in and its in the The in was a to on the The competition that its on the but not it that been in the infringement or a the decision by the competition an for damages and before a in the jurisdiction to claims its that and and for harm caused to by the infringement by the competition there was in the to whether the courts jurisdiction in of to whether of the Brussels I bis preclude courts on the a or or of the of the that the competition a a the in to their jurisdiction This issue its way to the the Court of the and was referred to the Court of Justice for a preliminary ruling. For to be applicable it was the Court to whether there was a of a that it was to the actions in to the of The Court further that the whether the of law and with regard to the claims the and that the not been before it with an to the in on case law its in the Court that the of whether the of law and with regard to the claims the be several in a and infringement of competition law that been by the the by the Court that this also the a economic and of the the of competition law and and for the harm the Court of Justice that it was not in to have jurisdiction under of the Brussels I bis for and several to have been in a the whether the in and the for the which was was The was also concerned with the for the of a and that the Court of Justice that the not only in public enforcement but also in private enforcement of competition law and that the concept of an was the in both the Court that to its jurisdiction under of the Brussels I bis a national not a of the or of the but to the for regard to a that in the the Court that the to that a by the its cannot be a in to its The do the Court if the on the of the and an to the to the not or or of the of its or that that be the Court of Justice ruled that of the Brussels I bis not preclude the for the of of a in to its on the that a or or of the of a that has competition it a that that the not of the possibility of that that not or or of the of that or that that be the of this the for jurisdiction under of the Brussels I bis by the Court of Justice in is The of its is that if the the of the the of competition and the has jurisdiction to actions at one of the in there also be a possibility for the to the but this requires this the to this is an in private enforcement in which is to the of both and The of the and with regard to the infringement is a in the of this and the in be the and through EU for actions by across EU jurisdictions also be an is several at a certain which only have jurisdiction to actions one of an to the claims the at that one that the in the The through which jurisdiction is for is referred to the in the that it for the before the at two and of the Court of Justice is to further on of the Brussels I bis and in to the a to the with the is no in the cases but has an on the The in the two a of in several that have been of and both follow-on The case a a in and and related and The case a decision by the competition on a in and covered several European jurisdictions and several at economic the of competition law. both cases only one the of that was in the actions was a has competition cannot an for damages of its to on the and several of a economic have the of that and do have the and legal and there is a the economic of that and the of the infringement by the the to of the Brussels I bis the to the that there several they can be in a national jurisdiction for one of that claims that it is to and to the of that regard it not that the in the infringement in and at but it that they in an infringement that been by the and that the was on their in that The in the that the national not have the the no of The that not be and that there was no jurisdiction under that rule if there that the only the for its the that a not be concerns that the be but only if it or or of to the As to whether the was in this the by the that harm the was not through an on EU that the of by a which or or of the of a not apply in damages and that the in one of the not have a it was only a and the the that the Court of Justice has not been given to rule on if under the to compensation for harm caused by an infringement of EU competition law to harm in but not that the in the be or for a of jurisdiction under of the Brussels I bis the the the of the by to the of the Court of Justice in the in the and of not to on the in a way to offer and the of a to be of the of the a the it that the was a of the which was for the infringement of competition law. The in turn, in that in to a to the the of the the of a the on whether its was in an economic which a to the of the infringement for which its of the been in the of the by the to the of of the Brussels I bis Regulation. whether the claims the and the the of of the Brussels I bis for the national to have jurisdiction of and whether that have in a infringement of the EU of a the claims and of the with which they each form an that of a the economic of the and the of the infringement by the be but that it not for the to have to the the that the of of the Brussels I bis there that the which they of the of law which have an infringement of the of in EU that it cannot be a that the to the that the of foreseeability not be that be to that they be in the jurisdiction of and not preclude this of the that with the that a in the of the can be an but that an to was to be the Court of Justice will the For it the in of the in it to its on the of by a which or or of the of a not apply in damages it is that the Court will not the of the referred the but rather in to a the not to be with the and the Court of Justice was asked to whether a to be to a economic which an of competition law. The in the two trucks the in The to that the been by the trucks with to the decision in the was the The an for damages with the and that the to was to be to the in The national the in with the but the was with a to the of the in The that this was a in and that the the it and its of a economic the of competition law. The issue of whether the be through its its way to the the Court of and to the Court of its the Court of Justice under its case law and in its in a economic a the of and legal that can be for an if by legal the Court an the of has no legal of its an for damages cannot be the but be a legal the Court of Justice the of and of is a under the to in of the EU of fundamental that the Court find no or in EU law for the that a an for damages one legal an and have the to legal the the the Court of Justice the to a by of the the if it been to have and it not be that legal a economic to on each The Court of Justice the of EU on and on the of The Court that related to the of be by the but that EU certain to the and that can be if the is The Court also that it be to to their a of the if the to the related to in Member the Court of Justice ruled that a cannot be with a to a if the two of the economic The of is that under the case law on a economic under competition to a of their a the of which is or the its this not can the the of for the has been that will have consequences for the of and this cannot be through to the concept of a economic The Court that of competition law by of the and the and it that the and of an of the of which cannot be with to the concept of a economic this case was a and the that there to on the concept of a ‘single economic unit’ the Court will is an of an of damages under the 2014 Competition Damages under the case law of the Court of The on by a of national law and EU which the Court is to in the referred This for a preliminary was by the Court of Justice on and no is The before the of and it is damages in to the trucks in which the compensation for to the The concerns the of in the 2014 Competition Damages and in the of on the damages The also concerns to on which date harm has by of an infringement of competition law. the the has been at a of the date for damages was to the under national the claim The that be the date harm the of the will be to on the date which to on the damages in the proceedings. will be interesting to this there is no EU case law on issues in the of competition damages For the purposes of an for damages a Member the Court of Justice has that on an is the date harm was This was in a competition damages which that the Court it in competition of the 2014 Competition damages be the the harm until the compensation is is this is rather and a through be is very to private enforcement in the EU to case law on actions for private enforcement is by there can be concerns this and whether it be issues under in the and Justice and a report and the for third-party in ASG 2, reported the Court of Justice the of the Member States a rather wide margin of discretion on whether or not to claims for competition damages to be to a third-party I have that the of which was not in the to other on the legal in the Member at will be interesting to the further of EU in to third-party law on the of rules in the 2014 Competition Damages also to The case law has on the of certain rules and on to the of rules also and and of EU law. Heureka, and through we a of limitation which is to be after the rather of the Court in and will also be very interesting to the on we a on that in is also very that we on jurisdiction under of the Brussels I bis in of the concept of an in competition in This case law further to their procedural if the Court of Justice is also it in the reported cases and that not but that for the of both be As we to gain legal foreseeability in private enforcement of competition we will also increase incentives to seek in turn, further case law the Court of very for with an in the
The article discusses the prospects of implementing decentralized ledgers based on blockchain technology for the establishment and verification of international obligations in various fields. A comparative analysis of traditional liability accounting systems and new solutions based on distributed technologies has been carried out. Specific successful cases of the implementation of blockchain platforms, such as the TradeLens platform for the digitalization of international trade and the Climate Action Data Trust for environmental agreements under the 2015 Paris Agreement, have also been examined. The article discusses the legal aspects of blockchain in international law, including the provisions of the UNCITRAL model laws, OECD recommendations and the challenges of legal recognition of digitally recorded data. It finds that decentralized technologies can significantly increase transparency, trust and the speed of implementation of international obligations, but those legal and political challenges need to be overcome. Conclusions are drawn on the need for further harmonization of international legal norms and standards for the widespread adoption of blockchain technologies. The paper identifies opportunities for international organizations and states to develop legal and technical infrastructure for the effective use of distributed ledgers in various areas of international relations.
Abstract Stablecoins are regulated in the European Union under Regulation (EU) 2023/1114 on Markets in Crypto-assets. That Regulation establishes a bespoke legislative regime for ‘asset-referenced tokens’ and ‘electronic money tokens’. Both are crypto assets, i.e., digital representations of a value or a right that can be transferred and stored electronically using distributed ledger technology or similar technology. Both aim to maintain a stable value by referencing another value or right, a specified asset, pool, or basket of assets. Finally, existing EU financial services legislation covers none of them. This work describes the main features of those crypto assets. Current rules seek to provide legal certainty for issuers of stablecoins in the UE (by imposing a common set of provisions applicable to all of them regarding their authorisation, governance requirements, etc.), give appropriate protection for holders of those crypto assets (by regulating their rights against issuers, the rules applicable to crypto-asset white papers or the marketing communications), or address potential financial stability and monetary policy risks that could arise from their use as a means of exchange (by monitoring or restricting the issuance).
We study a game-theoretic model for pool formation in Proof of Stake blockchain protocols. In such systems, stakeholders can form pools as a means of obtaining regular rewards from participation in ledger maintenance, with the power of each pool being dependent on its collective stake. The question we are interested in is the design of mechanisms, i.e., "reward sharing schemes," that suitably split rewards among pool members and achieve favorable properties in the resulting pool configuration. With this in mind, we initiate a non-cooperative game-theoretic analysis of the well known Shapley value scheme from cooperative game theory into the context of blockchains. In particular, we focus on the oceanic model of games, proposed by Milnor and Shapley (1978), which is suitable for populations where a small set of large players coexists with a big mass of rather small, negligible players. This provides an appropriate level of abstraction for pool formation processes that occur among the stakeholders of a blockchain. We provide comparisons between the Shapley mechanism and the more standard proportional scheme, in terms of attained decentralization, via a Price of Stability analysis and in terms of susceptibility to Sybil attacks, i.e., the strategic splitting of a players' stake with the intention of participating in multiple pools for increased profit. Interestingly, while the widely deployed proportional scheme appears to have certain advantages, the Shapley value scheme, which rewards higher the most pivotal players, emerges as a competitive alternative, by being able to bypass some of the downsides of proportional sharing in terms of Sybil attack susceptibility, while also not being far from optimal guarantees w.r.t. decentralization. Finally, we also complement our study with some variations of proportional sharing, where the profit is split in proportion to a superadditive or a subadditive function of the stake, showing that our results for the Shapley value scheme are maintained in comparison to these functions as well.
This paper explores the principle of decentralization within the context of the 1923 Romanian Constitution and the subsequent challenges posed by the 1925 Administrative Unification Law. It examines the tension between centralization and decentralization, highlighting the evolving roles of prefects, sub-prefects, and notaries as representatives of central authority in local administration. The study argues that despite the constitutional emphasis on decentralization, the 1925 law reinforced centralization, leading to significant political and administrative controversies. Key debates from the period reveal how historical, cultural, and political factors influenced legislative decisions, particularly the preservation of Romania’s unitary state character. The article also discusses the implications of these administrative reforms on local governance, autonomy, and the efficiency of public administration. By analyzing parliamentary debates and legislative texts, the paper sheds light on the interplay between political power and administrative organization, emphasizing the need for a balanced approach to decentralization that accommodates local needs while maintaining national coherence. KEYWORDS: administrative reform, decentralization, local governance, Romanian Constitution (1923) J.E.L CLASSIFICATION: H11, H83, N44 1. INTRODUCTION The principle of decentralization has been a pivotal theme in public administration, serving as a mechanism for balancing local autonomy with national cohesion. The 1923 Romanian Constitution marked a significant step in embedding decentralization within the legal framework, emphasizing the need for administrative organization laws at county and communal levels to uphold this principle. However, the implementation of the 1925 Administrative Unification Law posed considerable challenges, as it leaned heavily towards centralization, undermining the spirit of decentralization envisioned in the Constitution. This paper delves into the historical and political context of these reforms, analyzing the roles of key administrative actors such as prefects, sub-prefects, and notaries. It explores the legislative debates and societal implications of these changes, highlighting the centralist tendencies that dominated the period. By examining the intersection of political power and administrative organization, this study provides insights into the complexities of governance in interwar Romania, raising questions about the efficacy and sustainability of centralization as a model for state administration. 2. THE PRINCIPLE OF DECENTRALIZATION IN THE 1923 CONSTITUTION Decentralization was perceived by the legislator "not as an autonomous administrative body like in the Middle Ages, disconnected from other administrative bodies, but in close and continuous collaboration." The 1923 Constitution stipulated in Article 108, paragraph (2), that the administrative organization laws of county and communal institutions would be "based on administrative decentralization," as opposed to centralization (1923 Constitution of Romania). A decentralized administrative organization can be identified when "… administrative organizations are recognized as having legal personality and assets (the commune and the county had legal personality), when these organizations have authorities that are not part of the central hierarchy, when they are subject to a specific form of control called administrative supervision, and when certain public services are detached from the competence of central authorities (Tarangul, 1944). Administrative decentralization can be broader or narrower depending on how its defining components are regulated by law. The degree of administrative decentralization essentially depends on the number of public services entrusted to decentralized authorities (territorial decentralization) and the manner of organizing and exercising administrative supervision." (ibidem) Under the new Constitution, which was based on "preserving the national and unitary character of the country in the application of administrative decentralization," the draft law and subsequently the law established the county and the commune as administrative units, endowed with legal personality (Articles 1 and 2), while the territorial subdivision, without legal personality (Article 7), included several communes "to facilitate supervision, ensure the enforcement of laws, and provide proper administrative guidance." (ibidem) Decentralization was not easy to achieve politically, as it had to be implemented without altering Romania's national and unitary state character, while also accounting for the fact that, at the time of Unification, various forms of decentralization coexisted within the four administrative regimes of the united provinces. (Monitorul Oficial, 1925) Regarding this "cultural mosaic," during the Parliamentary Debates in the Romanian Senate on March 31, 1925, opinions were fiercely contested:"For instance, adopting laws from Finland, where the cultural level of the population is almost uniform, and where there are no differences in mentality, customs, or traditions, is not a difficult task. But it is challenging in our case, where the gap between the primitive shepherd in the mountain depths and the highly educated intellectual is so vast, perhaps even greater than the gap between a toddler just learning to walk and speak and a fully grown adult. It is difficult to create laws because they must apply to everyone, and even more challenging is to introduce an administrative law designed to organize numerous issues concerning individuals and society." Political opinions were outright irreconcilable, especially when considering the administrative territorial architecture proposed by the Liberals on one side and the National Peasants' Party on the other. 3. CENTRALIZATION AND THE 1925 ADMINISTRATIVE UNIFICATION LAW The draft law, developed by C. Stere in 1929, envisioned broad local autonomy, limiting the central government's right to intervene in the internal affairs of communes and counties. It also proposed the establishment of a new administrative unit—the province (Scurtu, 1983). During the debates on the Liberal government's draft law, Ion Vescan, speaking on behalf of the National Party in the Senate on March 22, 1925, stated that the current government lacked the political and moral authority to present the country with an organic reform proposal for its administrative organization. He argued that the current legislative bodies were unfit to enact laws that concerned the very existence of the State and its permanent interests. The National Party opposed the administrative reform proposed by the Liberal government, deeming it flagrantly at odds with the principles of a modern administration rooted in the democratic idea of local autonomy, which was, in their view, "the only means to mobilize all healthy and honest forces across Greater Romania." (Monitorul Oficial, P. III, 1925) A Transylvanian senator criticized the substance of the Liberal draft law: "An administrative organization based on the old centralist framework, which for over half a century has stifled the development of county and communal institutions and the growth of civic awareness—the sole foundation of a conscious democracy—can only serve the interests of party absolutism and culminate in the despotism inaugurated by the current government and prepared by all its present legislation." (ibidem) Analyzing the parliamentary debates on the draft law, it can be stated that few laws voted by the Romanian Parliament sparked as much uproar and unleashed such political passions as the Law on Local Administration Organization. The reasons for this interest were manifold, most stemming from the relations and rivalries between the major political parties. Each party, considering its historical contributions to the Great Union, felt obliged to promote such an important law, foundational to the organization of the State's administrative life, rightly called the country's second Constitution.The democratic behavior of opposition parties was not met with understanding by the ruling National Liberal Party. The Liberals rejected any argument referring to realities in the historical provinces, where aspects of administrative organization were recognized by experts as being even more advanced than those outlined in the new administrative organization law. The lack of political compromise between the majority and the minority was evident in statements such as: "First, they have not yet become accustomed to the purpose, role, and power of majorities; they fail to understand that a country where the minority does not recognize the majority, does not recognize the laws and actions of the majority, is a country—or rather becomes a country—that forfeits its right to exist." The 1925 law sparked numerous controversies and even harmed the State by repealing partially better provisions, motivated purely by unjustified pride or the opportunism of unification. Enormous difficulties arose due to the lack of continuity in legal norms, the population's overt distrust in the authorities tasked with enforcing the law, and, not least, the negative atmosphere created by the provisional nature of the system, including the constant threat of abolishing the institutions established under this law. Even C.D. Dimitriu, as the Rapporteur, paraphrased his party leader, I.I.C. Brătianu, during parliamentary debates, acknowledging the project's shortcomings but refrained from amending any article or paragraph in line with the opposition's views, stating: "The law is not perfect; it is perfectible. Who could ever imagine, who could ever claim, that I would come forward with a perfect law?" (Monitorul Oficial, P.III, 1935) The 1925 Administrative Unification Law also conflicted with the provisions of the 1923 Constitution. The principle of decentralization, stipulated in the fundamental law, was not realized because the county prefect, as a representative of the central authority and simultaneously the head of the county administration, restricted the activities of local administrative bodies and even dissolved them with little procedural formality and even less scruple. In its effort to enshrine the unitary character of the State, the law largely continued the centralizing tradition of the Old Kingdom of Romania. Centralization became the administrative system throughout the country, representing a significant regression compared to the existing organization in the historical provinces. Local and county interests were governed according to regulations and financed by resources provided by the central authority, administered by officials directly appointed by the central government. It was well known that this outdated system, already contested in the Old Kingdom before 1918, was being adopted. "Centralism implies the necessity for the State to hold in its hands not only interests of a general nature but also those of a local character, whereas autonomy means that the management and administration of local interests are entirely entrusted to the locals, to those primarily concerned with these interests." (ibidem)The Rapporteur, aware of the advantages of local autonomy, emphasized that it "can yield admirable results when used wisely," but "not when it enables various territorial divisions of a State or various parts or cells of its political organism to develop at the expense of the State's general interests." (ibidem) 4. POLITICAL DEBATES AND LESSONS LEARNED C.D. Dimitriu insisted that it was appropriate for the State, "always vigilant," to ensure the timely oversight of "the proper and correct fulfillment of the functions of the various bodies called to work for the benefit of the entire organism." (ibidem) He agreed that "every commune and county should have as vibrant and prosperous a life as possible," but stressed, "let us always remember that the primary goal is the life and prosperity of the entire organism, the life of the State." This, he argued, must be ensured through effective control over the functioning of the State's components—communes and counties—a task that must be carried out by the central authority (ibidem). In the liberal legislator's vision, the transfer of authority and administrative and financial responsibility from the central level to local public administrations had to be carried out "within the limits of general interests." (ibidem) Under the spirit of the 1925 Law, three actors represented central authority within local administrations: prefects, sub-prefects, and notaries. The prefect—a Napoleonic creation originating from the eighth year of the Great French Revolution—was maintained in the exact form outlined in the Civil Code until the modification of the French Constitution in 1958. Before 1958, the prefect was the government's representative and the head of the administration in the department where they served. After 1958, in France, the prefect became primarily the representative of the State and national interests, followed by their role as the government's representative and head of the department. In Romania, according to the Law on County Councils, No. 396 of April 2/14, 1864, Article 91, the prefect was the "head of county administration, directing all works of this administration and executing the decisions of the County Council." The 1925 Law, Article 3, paragraph 2, described the prefect as the government's commissioner attached to the County Council. In this role, the prefect oversaw the legality of acts adopted by the County Council and the Permanent Delegation. If the prefect identified any illegality, they had the right and duty to appeal to the government within ten days of the act's adoption (if they were present at the meeting) or from the date they were informed. The appeal was suspensive of execution.In both the draft law and the 1925 Law on Legislative Unification, the prefect became a political official rather than an administrative one. During parliamentary debates, it was suggested that the prefect should "have a career background" or be accompanied by a second prefect elected to lead the County Council. Representatives of the National Party supported and argued for the proposal of having two prefects, "one administrative and one political." (Monitorul Oficial, P. III, 1925). The idea was rejected on the grounds that coexistence between the two prefects "would be absolutely impossible—detrimental to good administration." (The 1929 Law, discussed below, later regulated the institutions of the political prefect and the administrative prefect.) Regarding the career prefect, concerns were raised about the irresponsibility of recruiting such a public official. (This position would later be introduced in the 1938 Administrative Law, Article 97, paragraph 2). From the pool of county administrators in the Old Kingdom and the annexed territories, out of 351 prefects, 129 held university degrees, 35 were officers, 51 were former notaries, and 46 were appointed based on exceptional laws without any educational qualifications. In Bessarabia, out of 54 prefects, only 7 held academic titles, 24 had no formal education, and 23 were former active-duty officers. Considering the method of appointing prefects, it is evident that they were designated politically and represented the government in the county through the Ministry of Internal Affairs. The distinction between political, administrative, or career prefects is highly significant, as their legally conferred powers allowed them to politically influence local administration. In the 1925 legislator's vision, the prefect "represents the entire government, corresponds with other ministers, and may inform various departments of the issues they identify and the improvements that need to be made." At the same time, the prefect was the head of the police in urban communes and the head of the gendarmerie in the county (Anuarul pentru toți, 1929). The legal instrument through which the prefect imposed the will of the central authority on local interests was established by the provisions of Articles 78 and 333 of the law. According to Article 78:"The mayor and members of the Permanent Delegation may be removed by a motivated decision of the communal council, adopted with a two-thirds majority of the total number of councilors. The council may only pronounce removal for reasons of ‘poor administration, evident acts of incompetence, bad faith, or culpable negligence that compromise the commune's interests, acts against the order and security of the state, or criminal acts.’" The council was notified by a motivated proposal from the Minister of Internal Affairs for urban communes serving as county capitals and by the prefect for other communes, or by at least one-third of the councilors. Decisions of the communal councils concerning the removal of mayors and members of communal delegations were immediately communicated to the prefect for rural and non-county-seat urban communes, and to the Minister of Internal Affairs for other urban communes. These decisions became final if, within ten days of their they were not by the central removed had the right to within the same a decision could only be based on the of the County Delegation or the Administrative the mayor or members of the Permanent Delegation acts against the security and of the State or to by the central authority, they were removed even the council was not notified by the proper If there was with this is by based on the motivated of the Minister of Internal Affairs with the of the Administrative Council." Article 333 of the law the prefect a both a representative of the central authority and as the head of county administration. the head of county administration, the prefect was the of all they appointed and in with the Permanent Delegation of the County Council (Article The prefect also held authority over these The was a representative of the central authority and a to hold with all to with key and simultaneously to become with the needs of various (Monitorul Oficial, P. III, the prefect, the was a career could also be appointed as they had of and held an academic degree or a from a administrative The as the representative of the central authority in rural communes. the notaries were in the Kingdom without However, the law established four for notaries, followed by two by The law notaries two of and the under certain to become the was also as being "within the administrative the representatives of the central (Article Administrative decentralization the of the as an with legal The was to communal administration and in its (ibidem). In a administrative system, the was in to the principle of it was as a territorial without legal by a The directly to the prefect and carried out the decisions of the the County and any other through laws and The prefect could part of their through decisions, but not on a permanent principle of administrative decentralization, in the draft law and parliamentary debates, only on Under the 1925 Law, centralization became the administrative system, county or local interests were governed according to the and regulations established at the central by institutions by the central authority, administered by officials appointed by the central government, and through financial resources from the one of the project's the lack of decentralization, time will come when administrative decentralization can be in a Senate and just as discussed it in our (ibidem) The 1923 Constitution marked a pivotal in Romania’s administrative the for a governance model that It the of local administrations with legal autonomy, and the to their However, the subsequent adoption of the 1925 Administrative Unification Law the difficulties of constitutional into of decentralization, the law reinforced a administrative that the of local the central control over and communal interests. The implementation of the 1925 law was influenced by a of historical, political, and cultural At its was the to the unitary character of the Romanian state, particularly in the context of with administrative This with the principle of decentralization, in a governance model that leaned heavily on sub-prefects, and notaries, as representatives of the central authority, were in enforcing this undermining local autonomy in of Parliamentary debates during this period political divisions the appropriate between centralization and the Liberal Party centralization as a means of national and administrative the National Party and other opposition for greater local autonomy, rooted in democratic These into legislative and a lack of the implementation of The of the 1925 Administrative Unification Law is one of for balanced By local interests to central authority, the law the development of local institutions of the needs of their It also a on central which stifled and local the administrative of the on this historical period provides insights for The challenges in the interwar period the of decentralization in a manner that local autonomy while national modern this as a of the need to administrative that local authorities without the of the The principle of decentralization, can more and to the of modern governance, the of the interwar period highly The between central oversight and local autonomy a yet of effective administration. the and debates of the period a historical on how to achieve this that governance are not only legally but also and to the needs of 23 a pentru pentru toți, 1929 Oficial, a a 1925 Oficial, a a Oficial, 1925, a Oficial, a a 7 1925 Oficial, a a 1925
This paper investigates some of the legal issues related to non-fungible tokens, i.e. NFTs. The main feature of non-fungible tokens is their uniqueness together with the possibility of representing any digital resource on a blockchain, thus making it demonstrable and economically evaluable. From a legal point of view, this kind of instrument is alluring even though many look at it with uncertainty. As with any emerging technology, NFTs also present legal issues which need to be addressed as the market continues to grow. These problems deal with the legal nature of NFTs arising the doubt if they are securities or not. One more issue is the potential applicability to non-fungible tokens of the first sale rule. Furthermore, the problems involved also extend to other areas of law. In fact, both issuers and buyers need to be protected. Regarding issuers, the issue of an NFT may require the drafting of an additional contract with a specialised entity. On the other hand, buyers must be adequately informed of the purchase transaction. It follows that all the parties must be aware of the legal challenges involved and work towards establishing best practices and industry standards to address them. Additionally, it is necessary to issue specific legislation that regulates every aspect of the purchase. Received: 10 February 2024 / Accepted: 29 March 2024 / Published: 5 May 2024
We provide two novel block congestion attacks onEthereum that are applicable even in the presence of the EIP-1559 base fee mechanism, which aimed to make such attacksimpossible or highly costly. Unlike traditional block congestionmethods, our approaches allow the attacker to avoid paying largetransaction fees in case the attack is unsuccessful. Moreover, oursecond attack avoids an explosion in the block base fee and canthus be used for prolonged congestion of an interval of blocks.Finally, we provide real-world examples of contracts currentlydeployed on the Ethereum blockchain which are vulnerableto such attacks. Thus, block congestion is both possible andprofitable, even after EIP-1559.
Jensen, Markus V. G., H. Kjeldsen, Nielsen, Andreas S., Niklas Bille Olesen · 5 authors
End-to-end-verifiable voting systems can only meet their goals if independent auditors are capable of verifying election outcomes as easily and efficiently as possible. ElectionGuard is a prominent effort in this direction, in which simplifying the verification process guides several design decisions, from the choice of cryptographic group to the building blocks for encryption and zero-knowledge proofs. In this paper, we present the development of optimized ElectionGuard verifiers in the Go programming language, targeting versions 1.1 and 2.0 of the specification, focused on analyzability and efficiency. Our verifiers are built on an architecture emphasizing efficiency that exploits parallelism to achieve a running time up to 10 times faster than related work. We also show that version 2.0 of the specification introduces several changes that improve the verification performance by an overall factor of 2, with the decryption process being around 24 times faster. We expect that our design can be used as a reference for future ElectionGuard verifiers.
In March 2023, the European Commission (hereinafter, the ‘Commission’) launched an initiative that will ultimately lead to the adoption of a set of Guidelines on exclusionary abuses.1 The announcement gives veteran EU competition lawyers a sense of déjà-vu. Back in 2005, the authority released a Discussion Paper on Article 102 TFEU,2 which paved the way for publication of the so-called Guidance three years later.3 It does not take much scratching beneath the surface, however, to realise how different both exercises are. The (future) Guidelines on exclusionary abuses are destined to be more ambitious than their predecessor. The Guidance Paper was always conceived and presented as a modest attempt to explain how the authority intended to exercise its discretion.4 The Commission clarified that it could not be construed as an interpretation of the notion of abuse.5 The declared goal of the ongoing initiative, by contrast, is to codify existing case law.6 This paper takes stock of the case law of the past decade and discusses how Article 102 TFEU can be interpreted and applied in a manner that is consistent with effective enforcement, legal certainty and meaningful judicial review. The Court of Justice has consistently expressed a preference for consistency and continuity, whereas the European Commission has signalled that it values flexibility and effectiveness. Four key principles, which could ensure that the three abovementioned interests can be reconciled, are identified. It is submitted, in particular, that substantive standards should be (i) administrable, (ii) built around structured legal tests, and (iii) capable of being disproved. The Guidance Paper and the Guidelines-in-the-making differ from one another because they do not target the same actors within the system. The former (just like the 2005 Discussion Paper that preceded it) was primarily aimed at the business community. It sought to address what might be termed a legitimacy crisis in enforcement. The Commission’s policy in relation to exclusionary abuses had come under widespread criticism from the early 2000s.7 Decisions like British Airways8 and Michelin II9 embraced an approach that was difficult to predict, was at odds in several respects with and to take the within which an that that the of was as could under Article 102 as to the The Guidance Paper was a to and It a to the and to to the of The launched in March 2023, by contrast, is as a the Commission and the Court of Justice (hereinafter, the the The that the publication of the Guidance Paper are much in with the approach that the Commission to its in the case law the Court declared that Article 102 TFEU is not with the of which clarified that that the is of competition in the a on the Commission to in of several its This of case with the in policy in the Guidance a of for an a substantive the of that and is that the Commission is not in to the exclusionary of The of is that the authority more difficult to as a is however, around the of an to the legal be more than it to it is not how much more as as the of and the The Guidelines the Commission an to in the case law and an for the of Article 102 TFEU to exclusionary This of paper the the Commission’s It does in The the and in the and of the of actors are are it is for Court to the notion of a effective enforcement, legal and meaningful judicial review. The discusses what can be termed the Article 102 TFEU of the past that the of law that the Court has The in the which are the the Guidelines are more to on the of the case the paper of the that could in the of the three In the EU legal it is for the Court to the and of competition law Article 102 the has the to an on of on the of Commission it that judicial at the Court has to and 102 TFEU in the of a for a legal for and the of the in the system. It is both with the of and with that are interpreted and applied the This the way it the of Article 102 of the of the case law that is the preference for on the existing of and the Court its on that it has expressed in a past In it has to past and to do It to its case as to from the existing of The to which the values can be by to which is as one of the of the past The does not to which are as In the Court declared that of from it presented the legal as a that a in the case an the values the consistent interpretation of EU competition law This is not of a with and It is an to the of the EU legal was to the of and 102 TFEU by and This can be the are applied the the of the EU legal and legal the adoption of has a of the Court to in the case In for the by the on the on the one and and on the In in the Court had to with the the of the of more the in the case law around the of the of exclusionary The Commission is in of and competition In the EU within the by an to Article 102 for it that an a in the and that its to an The and of EU competition policy on how much the law the of the Commission competition The by the Court the of EU in by the of the what the authority to by the of that the Commission to the has on the law and policy are not to be authority like the Commission on that the substantive standards are in the of a they be to be an to the effective of competition the standards be the sense that they do not for flexibility to the of the of to The Commission be of the it for in that it to in that the three in and are its to the exercise of an its in the one the Commission to an interpretation of Article 102 TFEU that for effective in the same which is to to the of The that the Commission in March which the of its The to a and approach to the interpretation of Article 102 which in is one that for the meaningful of the and that is capable of to the of and the Commission takes the in its that it not be to as a of the of in The that the that legal as as lawyers and signalled the of being to not a will be to Article 102 The to legal certainty by that to the an approach to that one that is to and on the of the In which was as an the that the to of the case be in of the set in to a set of which was the approach by the the a that to their on the and that to the the and of The effective judicial of is to the of much in that of the the past decade in that a by a to ensure that the by are by the Commission the for the in the to in the of the the exclusionary of is by the by the The of the that both the Commission and the of the for different not the of the an is one that does not with the effective of Article 102 a is not at odds with legal certainty can that from an and to In however, the of the in the of be in with legal The flexibility that could existing of the of a being can be and the and are structured around a and set of they not legal certainty to for effective enforcement. the come with This be the in particular, the they in of their are in of it for the authority to its of In the that the of legal might be an to effective enforcement, in the sense that it for for the of existing substantive standards to and effective enforcement, and its with and legal certainty the the of and legal certainty are with its and as an It is to ensure the of and 102 TFEU the the substantive standards can be with by and is a judicial at the EU is to be should in in that are to in of than are. of the that it on consistency and continuity, the of is not in with legal The from the from the to for flexibility and in in the of effective in the of In and as in the the both of that it values as an and that ensure that the can its the flexibility and and and judicial Four the of has always a in EU competition In the that lead to the adoption of the Guidance Paper was to a by the within the business that the of Article 102 TFEU was to The Commission’s to the of was a to the publication of the Guidance The in the It has consistently the past that the of the exclusionary of be a of more of This be in particular, in by to their the Commission’s The of is a from a legal the however, the that with the of and is a different the that the to consistency and continuity, it is to that the of Article 102 TFEU will lead to always and The of and legal certainty and an of the system. the from the is not can be as a of how substantive standards can be that they are The in is how to and the law and abuses of at the case law that on the of enforcement. on how the is can of a of that could be in can be presented a from the of as as in of their to their as to substantive standards is the of the of The with which an can be is to the of an authority is a that be and that they be to in the and more the legal is to the of the of and the of Article 102 TFEU case law has the past It is to a set of an and as a for the interpretation of the notion of are in of to do with the of that within the of the In it that both and is to Article 102 to the and of the notion of is the the case law has the the has a of It to be from the and to a of a of the of the under British are in of Article 102 TFEU of their on to the by the Court one can a that is and that is it can be that it in the and legal of which it is a In from Article one can and under Article 102 The is one takes a at like on the one and on the In the of the Court in that and the is of a exclusionary are of their in by their In the Court in that a does in and of Article 102 It is in It is by the it can be that it is a of exclusionary The that of that to a of a of their on at in and the to in The that is by its whereas are by Article 102 TFEU as they was in the Court that a to an it is at odds with competition on the the has in it than as a to The same is to the the the of to the of a In in at in and the of the is an of competition on the and that of it one and the same The to from the is that are by their In an can be it being to their on This does not however, that are in the It that are to from the of the they not be by the authority In the Court clarified that a of that the can a on The to is the in in and It is for a to the the of and that the is of competition on the in which it is the in it a on the authority to its The Court has consistently that the of Article 102 TFEU does not to for the to can be of the of a is a as an of the and legal be the is be the has for a of can be on the that might the be on a of on a It be on the in which the is The of be in of several that will be in In the Court that be to the for Article 102 TFEU to In the exclusionary of a an authority that is a the and the that it is to the they can be to as the of which the is a to the that the of the the the the the of not be to the to the that it is the of the The Court has what an around the This the case law on what an is like and it that the that are at a does not in and of of an to an from the that they are in of be to to the legal that a of be as a of a be This was in the that a of a to more from it does not the authority from the to its in of the The Article 102 TFEU a of the of the notion of the Court has several in of which the be of has not the of a is one of the to in the in and the of the is a of the of a is of competition it to a of the Court has that not are is a in the for an to and a a to from the the of the is another to the the of by the the more the are. the that the is of a exclusionary a in the are that a in the of the and the The has to the of under Article in the Court the a as a the has an on the the does not to a of by is Article 102 TFEU is at The of the a of the of a are to the legal in an Article 102 TFEU it is not to in that are This in is not it to be at is because the of to be with The that is for a in of does not that has an It does not that is an an authority to the in the to an on The has as one of the of the case law of the past its can be to and it was in The Court in that that exclusionary is to and that on the by lead to the from the the of that are and to from the of In the that the of is a and of the and that it be not to the of Article 102 to they in the with and more The from of the case law more from the of the EU legal be to the for Article 102 TFEU to come the of a is by the that it is more be the for it is to at a to the be the and the and The is a in a that values legal by the Court in one a to its to the of its which it be to The of their is which is not to the it the of a of The is as a of what the of Article 102 TFEU what it is In to its as a in the the that the of the of EU competition law at is to a not to The of Article 102 TFEU is not to how are to on the to the and its The more modest is to the in which to in the with and are In Article 102 TFEU is different from the of which is to by to a how the is to In of its in case is around of the has to do with the that the to be with the of the same The however, is an of the it has a of The of the is to as a of the a that is as as the be to at a In the of a for an authority to the of the by the an be to at a the of the that is In the of a the is the the and the by a an be to at a The Court has consistently that an authority not on the to an to the legal be by and more in of the by the Court in an authority be to that a set of a the of the It is that the is not to the of Article 102 the of a is it will not to an that it an to at a The that is to an in does not the of the as an of has to do with the of the It is that it the of the are as as the This its and the that it the the of the is to the to a the and the This can be at the of In the of the the to the to the the and to and at on the of The case law what an is not is what an it is to a sense of the of the notion by at how the Court the in by to what it does and not much In it that a does not competition for as as the from for as as their and to is not the in does not exclusionary a in of to the is and has the in the The Commission to a interpretation in its the Court had not the at the of The that Article 102 TFEU can both and has the Court has not clarified the that as a of substantive the The of in and be as as the is not the notion of is it to the not to the of an of and one of are both with the of for one the are both from a legal and a The the the the substantive of Article 102 and the the to the The by the Court in its case law is not It has consistently to and as not of is of a different that a be capable of competition that it is for an authority to that is that the is not that in the of that be on the to set a It at a of around however, was in in that it be as a of that the is more than not to The by the in to be consistent with it to that are by a as the should in that Article 102 TFEU in the of competition are and that the of the to The that in has in of as the of the its and the of that the is by that it is to at the that the of is around not the of has not by the the which is a substantive is with the of which they are to the the of is the to be the of in is the has to the legal It is to substantive and they to different they are both expressed in of It is to to the of to the of a it is that of to In to the of they to the substantive of one takes the from the on Article 102 are to as the law be the This is in particular, because of the to that is to the The of a a of the of competition with and the the of competition that in the of the should in that the to the is in the of Article the that and 102 TFEU to the same it be difficult to that the exercise is under of the different to the of to a different to the notion of of and 102 In the Court in the of the the was not the for the of the of the to the was by the that the the of an In a the Article 102 TFEU could to the of competition that the the case it that are to the it is are of the one the that the from the is the that the not an to another it be to from the the of the do not for the of a of is to the to the of the Court had not The a sense of the and the the Commission’s ongoing the case law of the past decade has consistently signalled the to the meaningful of it is for the authority to the of the legal on its to its policy substantive standards could the meaningful of Article 102 It is from the that effective is and the the and in the case This with that are at the of the as an legal certainty and meaningful judicial review. The former that Article 102 TFEU is applied the The is consistent with the as the of EU law and as the of approach to the notion of that takes three enforcement, legal certainty and meaningful judicial is not to and the can be by key principles, which are and the substantive standards be administrable, that they can be applied both by the and by they be structured to and a sense of what to and the that to the by a authority be capable of being in not in in the It is submitted, in that one substantive legal that on that are always and and to substantive standards be a to ensure effective more to for the of the be the Court has not the notion of in the case law in a because of the the are what an authority that a is a of are how the in the case law as the of the and the of the in and how they are one The way to the in the case law in a manner that that the is to on that from the to in and by a of the that is The of is not in of the case law and the In the of Article 102 the Court in a to which a of the of a This was intended to to the in are in of The in has on in its The Guidelines on for on a as a the of the are and the of the does not that the from an are in relation to could be an effective to existing in the case In the in like and to the of for the of a which was as a in the of of the could be as a of the of a the and of the It is the a is the is its to it be to on the of at as a for their exclusionary one could that a one three the of the to the at with could be on be to from the of effective enforcement. The Commission a sense of what they to in relation to of the of in and not It is an approach that ensure that judicial the to the of to from one case to another on of the of the at the of a be more The be from the of legal be in a to the in is that has in years has to do with the and of legal in Article 102 It is to to the substantive of approach on structured tests, which around a set of that to be to an to the legal The three by the Court in as an in approach not on is in an than the of a the in the case law be that to be in the of an to the that one more are not in a not be for a of The as a be consistent with the of the of the in of the the exercise that judicial the in the case law as to be in It is not difficult to which the of an as it are to in structured legal effective more than like a set of and what the authority to what it does by contrast, they be to and the and that an authority however, a could in the as to for the standards for actors it is difficult to how legal tests, can ensure the of Article 102 TFEU the an interpretation of the in the of the legal The that to the of the substantive standards In the of law could be as a for to their structured are judicial is to the legal to an from one case to another is one that in the of the substantive standards to the and an which the to which are in a and which are is with judicial that is to of The of could be to at the of legal certainty and meaningful judicial review. as it be difficult to for a of a set of that is in always and is a legal This is because it does not the EU to in meaningful In with what has in the it for the exercise of judicial is the in the EU legal the approach the of a of the by the case the of be to from their and be by its the same an approach it for to the of the The of could a in several the of set at the of a of be a of to take In the of competition are by the of a the of the of a not be to and take the of by a In exclusionary could be always and In with what has it be difficult to interpretation of the notion of with the by the Court in to the it it for a to a of that the of a is one that a the system. it is that the substantive in an could be by to a of not be to it has by the the has in the Commission’s it has by the Court (hereinafter, is by the Michelin The that its could not be as its had the The Commission in the of the could The the of The in This approach to the of the of which it to an is on a of the notion of of and to what and to be by the interpretation of the to that Article 102 TFEU can be the more it the to which they are like a of more than that are more than that their has the that is the the be not because it it to exercise a of because it is at odds with the case of the that from the is that flexibility the is It has that the Court in that the is not always the which are can of be a competition authority is in of its a is to In the be that the are not the which of a in a should be a in the Commission’s the in not the of a to an the case for flexibility is one it to be in a way that does not It is submitted, that should be as it be for the that that the legal standards should not in a case to are a it be for the authority to in a the of the not be the be on it to it the are not the which the of a to is to be flexibility at the of and consistency legal one that the in of the is The of the case law on exclusionary abuses the past the Court has embraced an interpretation of Article 102 TFEU that on a of the of on are however, around how the of In the of the notion of to This is the which the Commission’s initiative in relation to exclusionary abuses be This paper has the that might effective enforcement, legal certainty and meaningful judicial review. the in the case law it to the three to the law and are several that can in is that the law should be administrable, that it does not an to the of Article 102 TFEU and can be by The case law could to It in particular, that the Court has of the of The of could address of the Commission’s the of the system. can the to which are and the more are a to is more the Court could a which is to the case law it that the of under Article 102 TFEU be and not on the that might the In the of the of a a The of the legal that be difficult to with of the case law in the same with effective judicial interpretation is the of a which with the case a of an in interpretation that the of a is one that of a of as of to an interpretation be not because it to at odds with the because it it for a to a of the Court a legal certainty and that it is to the consistency and to the to and to to the of are in which both interests can be approach on legal substantive standards that and that from one case to This is not to in the EU legal the to ensure that it is applied the It in to the of of law to the authority in in a to the which the of is approach is one that as a of on structured legal on a set of that an authority This it is as a of can as as the of the
Merger regulation is a fundamental instrument by which competition authorities control the structure of an industry. Despite its relevance, the EU Treaties contain no rules on merger control. From the Commission’s first initiative to regulate concentrations at the EU level in 1966, it has taken more than 20 years of negotiations between the Member States and the European Commission to reach an agreement on EU legislation to control concentrations. The history of the European Merger Regulation reflects differing national views of the Member States and EU institutions on the necessity or the rejection of controlling concentrations and positions its legislative process and the various contradicting national interests of Member States against the apps and flows of EU integration throughout the 1960s, 70s, and 80s. At the core of this ‘protracted trench warfare’2 lied the delegation of enforcement powers to an already-powerful Commission, which the Member States initially opposed to. Capturing or delegating jurisdiction, hence, the distribution of administrative and enforcement authority between the national and EU authorities remained one of the most contentious issues during the bitterly fought negotiations. A similarly fierce and heated discussion on the distribution of administrative and enforcement powers across national authorities and the EU Commission has surfaced since the adoption of the European Commission Guidance on the referral mechanism under Article 22 in 20213 and the General Court’s judgment in Illumina/GRAIL4 and the Commission’s prohibition decision in 2022. Article 22 is a corrective mechanism of the Merger Regulation, which allows for one or more Member States to request the Commission to examine, for those Member States, any concentration that does not have an EU dimension but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request. This article assesses the distribution of enforcement powers across national authorities and the European Commission, in light of the Commission’s Guidance on the referral mechanisms under Article 22 in 2021 and the General Court’s judgment in Illumina/GRAIL1 and the Commission’s prohibition decision in 2022. The Article shows how the issue of delegation of enforcement powers between the Member States and the EU institutions has always been at the heart of the negotiation processes of the Merger Regulation, and though implemented through compromises, such as Article 22, this question may not have been entirely resolved. The article critically analyses two specific consequences of the way the Commission re-prioritised cases eligible for Article 22 referrals: the consequences of the Commission’s new policy for third parties and the principles of effective competition law enforcement including the principle of loyal cooperation and mutual trust. Born out of a political compromise, Article 22 of the European Merger Regulation has been characterised as a ‘late bi-product of the negotiations to create a merger control regime’ at the EU level and as ‘a mechanism riddled with gaps and uncertainties’. 5 After more than 20 years of low enforcement and largely decreased relevance of what has been initially nicknamed the ‘Dutch-clause’, these gaps and uncertainties are at the centre of extensive and heated debates about the way the Commission has announced to revigorate this enforcement mechanism. In this article, I first show how the issue of delegation of enforcement powers between the Member States and the EU institutions have always been at the heart of the (difficult) negotiation processes of the Merger Regulation, and though implemented through compromises, such as Article 22, this question may not have been entirely resolved. Second, I analyse the underlying rationale and development of the enforcement mechanism of Article 22 from the adoption of the first Merger Regulation in 1989 until the recently adopted Guidance of the Commission and the Court’s judgment in Illumina/GRAIL to provide a deeper interpretation of the referral mechanism laid down in Article 22 and to show the policy shift from discouraging to encouraging referrals. Third, I discuss two specific aspects of the new policy as enshrined in the 2021 Guidance and the mechanism currently underlying referrals under Article 22 EUMR that have so far been overlooked: the consequences of the radical re-prioritisation of referrals and the Commission’s policy under Article 22 for third parties and for the effective functioning of the (close) cooperation between the Commission and the NCAs. I argue that on the one hand, the Commission’s re-prioritisation of cases eligible for Article 22 referrals has re-written and largely eliminated procedural rights for third parties as established in the EU Merger Regulation. On the other hand, by re-activating the referral mechanism of Article 22, the Commission needs to reconsider the mechanism currently enshrined under Article 22. These procedures and mechanisms follow the enforcement logic and jurisdictional principles laid down in Regulation 1/2003, and accordingly, the same principles of effective enforcement including the General Court’s recent Sped-Pro6 ruling should to these the principle of loyal cooperation and mutual trust. The of merger control in the EU not a has been one with the between Member States and EU institutions at of the integration The regulation of has first been by the of in for the and the implemented by the of remained on merger control. In the years the the Member States national merger control In the in those years that and Member States or of of as a for national to the of and the of merger control rules in the Treaties the of the of as a law that out the and but not down a agreement to the European Commission to a merger and an authority within the jurisdictional of the EU The first of this its on the of in the the Commission its that merger should of the Commission’s as an of This the first of what the Commission as the between its competition authority and merger control. The Commission that it to the powers to it by Regulation at that extensive enforcement powers to for of the Commission by it as a In the European Commission, out other of its and the it on the in the the a policy and the Commission not to for the controlling and to authority of to the it to the from a that authority on and one through as authority to to and to the of for the of the European as a of throughout the and the about the of Member States no to in any during the The in the history of merger control the Commission’s decision in it and an interpretation of Article Article In its on the Commission that Article it to in cases of concentrations which from a of and which The Commission, by its authority and hence, a merger control on Article In to these the Commission the of legislative The first for a Regulation by the Commission in in which it to its authority to through legislative The of merger control the reach of its control against which a merger to with the on principles on on and the of which the Commission The fierce in the on various from Member The two most issues the of the regulation and the distribution of administrative and enforcement authority between the national and and the opposed the and of its that the of merger rules the to national or opposed of a to to the in of the as it the that its merger but it to authority to the such as the no legislation to low as no national at of the negotiations the between the European and enforcement powers to those by Regulation for the enforcement of and and authority to the Commission opposed by Member States, such as and that the Commission that a the legislation After this first it years to reach agreement on the merger control and in the largely and the and across these remained the issues of and administrative authority to on The Commission’s for a merger regulation in the and to the new and political of the that The to the in the the Commission’s merger control a merger control to the of a a in Commission The to create the European of the Merger Regulation not in the on the two to in of the EU and as the and and the most of the that by the than the referrals that in its The of at the in to the of the by the of a it for the to with the merger for the to the regulation of more it the relevance of competition policy to the that the rationale the of this new European the to more competition within the this of competition at the same The for a European competition policy as as the that the European Commission for and The Merger Regulation on 1989 and as Regulation The Regulation has been in and the new Regulation as Regulation From its in the Regulation laid down rules for for controlling between Member States and the EU Commission by to In cases these are the merger has a and within the of the Commission and Member States not national competition the Commission has no under the Merger Regulation the concentration does not have a This principle a of a a as in Article of the Regulation, and this merger has a the Regulation The which remained throughout the the to provide and between the and that of the Member This of to between the EU and national to Article of the Regulation, the of powers is on the principle of this of is to corrective mechanisms and the in Article of the Regulation and referrals and the Member States under and 22. In the the article on Article 22, the Article of Regulation out for referral of a concentration from a Member State to the the referral request by one or more Member the that is the of that request the of concentration out in Article of that regulation the for a European dimension laid down in Article of that the concentration affect trade between Member the concentration to significantly affect competition within the territory of the Member State or States that the referral request. to the third a concentration this to the that it is to have on the of trade between Member to the a Member State or States in to on a is a that the may have a on competition and that it may in the of of such a but to the of a In the of Regulation the Commission to of the the Member In for to than it the Commission a Member State to a merger on a within a Member This with one for those that the remained The Article 22 Member States to the Commission to that the This in cases national competition merger such as the in this of or than those at the European level or national authorities from Article 22 a ‘late of the to the of an EU level merger control Article 22 out of a compromise, which such as the to the mechanism in to as an and hence, no to the way Article 22 in the adoption of the Regulation, most Member States have adopted national merger control and the for Article 22 has been enforcement under Article In of Article 22 has been a cases as of it has been that its to to and the Commission to that the of merger control as a and the the Commission, by making of its in and Article 22, a of discouraging referrals from to the In its the Commission has out that the for of Article 22 in its to the that most Member States adopted legislation on merger control the Commission the of Article but has to to for the that with the adoption of the new Merger Regulation in the of Article 22 the of on trade between Member States as a for one or more Member States to to request the Commission to a concentration that does not have an EU dimension and threatens to significantly affect competition within the territory of the Member making the Second, Article the the Commission the to one or Member States that a concentration the out in Article and the Commission may those Member to a referral through a In the the Commission in with and third parties the of powers between the Commission and national competition the Commission that the the and jurisdictional of merger control in the the of cases between the Commission and the Member and in most been effective in cases that have a relevance from those with a national in about the to the in light of the Commission’s of that of but to the the Commission similarly that no for In the Commission to on its of on of for in the and that have but to the or in the and hence, In the Commission adopted a Guidance which its policy discouraging Article 22 referrals. on to discuss the Guidance more a on the and referral request that the Commission in After an the Commission the between and the Commission Member States by an in with Article of the Regulation for A referral request by by the and to the of by under the EU Merger Regulation. The not the of the EU Merger Regulation, and not in any Member but the for referral under Article 22 of the EU Merger Regulation. The Commission that the affect trade within the and to significantly affect competition within the territory of the Member States that the referral request and that a referral is not in its the Commission decision the referral in by that the Commission not a referral request from an in a merger law but the does not the for that the Commission’s interpretation to the principle and the principles of and On the General these and an extensive of the and of Article 22 In its the the Guidance as a which the adoption of the Merger Regulation and hence, not to the interpretation of that regulation to the of the the that Article 22 of Regulation at making the referral more and effective in to that a concentration with by the authority to analyse its to effective of the principles of and the as as to the The General that from the the legislative and the of Article 22 of the Merger Regulation, as as from the Commission’s enforcement it that Article 22 is to referral may for a concentration that does not within the of the merger control rules of the Member State that its In the Court’s interpretation of Article 22, the Commission may a concentration that threatens significantly to affect competition within the territory of a Member State and affects trade between Member States, which not to any by the national authorities or by the Commission and hence, an that by the Member In that it is to at the EU in of Regulation Article 22 an effective corrective mechanism in the light of the principle of by the interests of the Member In light of that principle and in with of that Regulation, a with by the most by the principle of of should to competition authority in the is the more for with a to the specific of the as as the and to the should to the of any on competition from the the referral of cases of aspects of the of the principle of including the in a and the of with to to to or to a the Commission and Member States should in the to effective of competition in by the The General that in which concentrations are not but to the Member State not within the of that or no such within Article 22 Article of Regulation a Member of the of its national merger control to to the Commission concentrations that not the in Article of that Regulation, but that may have the General that referral mechanisms are an instrument to control in a on of its is not of concentrations that at the European mechanisms as by the in of Regulation a of the Commission that on it the to the of that which is to the control of concentrations significantly to effective competition in the The 2021 Guidance is an of the Commission’s administrative it policy to the General in Commission a in control competition in with to referrals under merger the that the Commission has as to or not to a to of the on the Commission and Member States a of in to cases within or to to with cases not within to Article 22. The Guidance these and procedural on the of Article 22. The Commission’s to the of Article 22 EUMR has been that the Commission is its a for Member States merger control legislation in to the of the in merger control more than years and that the Guidance is ‘a law that the Regulation or at the of the In the I discuss two specific aspects of the Guidance and the mechanism currently underlying referrals under Article 22 that have so far been I argue with the adoption of the the Commission has not significantly re-prioritised cases eligible for Article 22 referrals and its established policy on discouraging but it has re-written the procedural rights for third parties as established in the Merger Regulation. administrative authorities to with principles of EU law and principles of that of powers by administrative Second, by re-activating the referral mechanism of Article 22, the Commission should reconsider the enforcement currently enshrined under Article 22 This on the of and between the Commission and the to Article of the Merger Regulation. and between the Commission and the and between the are in the referral out in the Merger Regulation. and on the of to the Merger Regulation, a of in these procedures and mechanisms the of cooperation under Regulation and follow the enforcement logic and jurisdictional principles laid down in that Regulation. the of the of on trade between Member States and a cooperation between and the Commission under Article 22 is a of such the same principles of effective enforcement as established by the European and recently by the General in its ruling should to this such as the principle of loyal cooperation and mutual trust. In with the structure of these the EU have characterised the procedural rights of third a to to the This as a to in the administrative from the to as a of the of the The Commission’s enforcement is but not to the administrative procedures to and as laid down under Regulation In merger parties to to the Commission for and may the Commission’s and and the Commission may the procedural and of third parties in these procedures as in Regulation third parties have a in the to the Commission’s by of to for to Article of the Merger Regulation, and provide and for the of a may third parties for to discuss and specific issues to Article Regulation third parties a to to Article of the Commission’s Regulation third parties are or including and are to a such as the concentration or by and of the administrative or of the or the of Article that third parties may within a that has been by the to the by the third parties in the Commission may the to in a At the same as the has that procedural of third parties with that of the and of to in the first Article the by the concentration in the parties to the concentration for by the Commission, the specific laid down in those in to that rights of are in the of the administrative Article in to third since are to the of the the to by the Commission, that have so and have that have a for that the Commission in the of the in provide third parties that have a with a of the of in to to views on the Commission’s of the the Commission in the such third parties are to the of a a to to this does not the that have been to third parties are to for the of the to Regulation procedural rights of third parties are not as extensive as the rights to the in to rights of it is the in so far as show a third parties have a under Article of Regulation to have so these procedural rights are in with the procedures laid down under and provide procedural and rights to third the 2021 largely these procedural rights to and to to the of the and down to the to the Commission or the authorities of the Member States, and of a concentration in a for a referral under Article this does not any on the authorities of the Member States or on the Commission to any a by a third any by third parties in the referral is in of the and such a fundamental of and parties are not competition authorities in the functioning of The of third parties is on this of as provide that to an of the that the to issue a decision in with the of the the by the concentration in the parties to the concentration for by the Commission, in the of third parties not to have an in its the affect not always in a are to the of the which in a procedural with to as third parties under Article of the Regulation, the General in that that those may in does not the of its to The Commission Article of Regulation in which the of that in to cases in which a merger has on a the of the of Article of Regulation as of the Commission the interests of the and The that Article which has the same as Article taken in and other EU and Article of the of of the European that EU a level of in administrative procedures is an of and that the of the and the as a to third parties are the to the decision of the competition or that to the of the These procedural have been by the Guidance in the referral making for third parties to a to the Commission in an is to so as one of the of Article 22 is that the concentration affect trade between Member This is an jurisdictional in the enforcement of the Merger Regulation, as other mechanisms on the in Article in of the a concentration the of on trade between Member States laid down in Article 22 it is to have on the of trade between Member this is in the to the Commission’s on the on trade in and the referral mechanism on and between the Commission and the and cooperation and to the European for and under Regulation 1/2003, the and the Commission a of in under the Merger Regulation. At the same the referral mechanism of Article 22 on the of to The Commission Member States to to the Commission as the most authority to the but it to is the of the Member States to a to the This the Guidance cooperation between and the Commission, it a of to the to a to a to the Commission, third parties more than the Commission as a with the jurisdictional and enforcement cooperation of Regulation the question the same principles of effective enforcement as the underlying Regulation should to Article 22 referrals. those and in light of the enforcement of and and the principle of procedural and the to a of fundamental under EU Member States powers to the of and The principle of which is a of Regulation and Member States not to the of EU law in or that the rules which or not the effective of and The principle of a to in EU law competition and other authorities as in the competition to to that is by is an of political competition is Member States should from legislative or other that the of its The have on various the Member States have on the of the principle of which the of national enforcement so that Member States to the of EU law within the Second, of cooperation with the Commission and other which is on and and on the that Member States that enforcement but the of as a for The on the of mutual and in which other in making of and powers in to This has been by the General in competition law in its judgment the of law issues to taken a national competition authority is of competition law and third In its a principles of between the Commission and the the General that with the fundamental of Article to the competition law enforcement mechanisms under and In this the General for the first established a between in the of a Member State and the of its competition authority to and enforcement under EU law and a The General issues of of law as an of effective competition law enforcement and the principles between the Commission and under the enforcement of Regulation to its law in the of the European the General as in the of and the cooperation between the Commission, the competition authorities of the Member States, and the national for the of and is on the principles of mutual mutual and loyal of those of those authorities and that other authorities and law for more the fundamental rights by that to the General for the of which competition authority is the to a the Commission to with the of the of law as a to the the of the rights and the Commission’s are this judgment the Commission to its decision to at of to by national authorities by of law The judgment that the Commission of the of of law on and in this the a new that the Commission, a for of EU to that the national authorities are of the rights of the The judgment is it a of and between the and the Commission and cooperation on mutual mutual and with these principles underlying enforcement and cooperation under Regulation and the General Court’s judgment in and on the of the between the principles underlying Article 22 referrals and I argue that the Commission should of the of effective competition law enforcement and of law referrals are an to the Guidance in a way that referrals not on the and of to The of of with the of of authorities the the of cooperation between Member States and the Commission and that the should with by the This is more so the that the European Commission and have as the of as as rights to and in effective enforcement of competition law not is for competition within the but of effective as laid down in Article of the of to and in the competition This the a Member State from its merger control effective competition in the Member State and in the This is the same as in the years of the Merger Regulation, Member States no merger that the adoption of the This is the the and such the and of merger to control in a way that it does not in to competition in the and to effective of concentrations with a of on the structure of competition in the and to effective competition in the or in a of In in that of a merger control to gaps in the of against of competition in to that ‘a in has in recent years in the and under competition of of for in the of or this the Commission has its enforcement mechanism enshrined in Article 22 of the Merger Regulation. the Commission as an administrative to the of to with powers in to and and EU policy including competition are to and effective regulation and procedures with a of on the of the administrative as the and the European Commission in is policy these not but and administrative and and on of procedural and This article that third in administrative procedures is a of and that the of competition the procedural and procedural rights of third parties in the referral the powers of the Commission and of the This the Commission’s referral with the of in the of a of and procedural rules that the of third parties to the referral to those to in the rights of the of that that may have on should by administrative law as a to control the of the adoption of the 2021 Guidance of encouraging referrals from Member States under Article 22, which of merger control the Commission has not to for procedural but and views of Member States and the EU institutions on which in national national or at the of national and the of effective the and development of Article 22 and its this article that the of Article 22 referrals the cooperation mechanisms and its procedural as it has under the enforcement of Regulation 1/2003, cooperation is a fundamental of effective competition law the Commission should not the in and the new it to administrative but on the in Member States that the effective of competition in the The General Court’s recent judgment in is in the of effective referrals and and effective enforcement of competition between Member States and the The jurisdictional in merger control between the Commission and the Member States effective and Member States to the and and the and its such as an competition in the
Jak dowodzą powyższe rozważania prawnoporównawcze, art. 45 § 2-3 p.k.k. ma być nieznanym jak dotąd, ani w systemie Common law, ani tym bardziej w systemie Statute law, uregulowaniem w zakresie tzw. odwrócenia ciężaru dowodu w przedmiocie odebrania mienia przestępcy. Co więcej, owe przepisy stawiają pod znakiem zapytania istnienie niektórych uniwersalnych wartości, do których z pewnością należy m.in. zasada domniemania niewinności wyrażona w art. 6 ust. 2 EKPC. Niemiecka koncepcja, choć jest niewątpliwie najbardziej zgodna z podstawowymi zasadami prawa w porównaniu z przedstawionymi rozwiązaniami, to raczej nie jest adekwatna do nowych wyzwań walki z przestępczością w dobie globalizacji. Szwajcarskie i austriackie rozwiązanie idzie dalej. Chodzi tu o art. 53 cyf. 3 s.k.k. oraz § 20b ust. 1 a.k.k. Mimo wszystko napotyka poważne trudności ustalenie, Że dane mienie jest w ,,dyspozycji" organizacji przestępczych. Nawet amerykańska koncepcja criminal for feiture, która opowiada się za pewnym ułatwieniem dowodowym w 21 U.S.C. § 853(d), nie przewiduje tzw. odwrócenia ciężaru dowodu w zakresie omawianej problematyki. Art. 5 ust. 7 Konwencji Wiedeńskiej, podobnie jak art. 12 ust. 7 konwencji z 2000 r., przewiduje możliwość tzw. odwrócenia ciężaru dowodu w przedmiocie przepadku mienia. Należy jednak zauważyć, iż owe postanowienia umów międzynarodowych z jednej strony wiążą strony jedynie względnie, tj. dają pewną możliwość, natomiast nie rodzą żadnego obowiązku. z drugiej strony wymagają zaś uwzględnienia podstaw porządków prawnych stron konwencji. Nie wydaje się, by odegrały one większą rolę zarówno w systemie common law, jak i w systemie statute law. O ile w pierwszym systemie prawa poruszana problematyka zakorzeniła się na stałe dużo wcześniej wyłącznie w civil law, o tyle w drugim _ jest ona w swojej czystej formie nie do przyjęcia. As evidenced by the above comparative legal considerations, Article 45 § 2-3 of the Polish Penal Code is intended to be a hitherto unknown, neither in the Common Law system nor even less in the Statute law system, regulation of the so-called reversal of the burden of proof on the subject of the seizure of the offender's property. Moreover, these provisions call into question the existence of certain universal values, which certainly include the principle of the presumption of innocence as expressed in Article 6(2) of the European Convention on Human Rights. The German concept, while undoubtedly the most in line with the basic principles of law compared to the solutions presented, is unlikely to be adequate for the new challenges of fighting crime in the age of globalisation. The Swiss and Austrian solution goes further. This is about Article 53 (3) of the Swiss Penal Code and Article 20b(1) of the Austrian Penal Code Nevertheless, it is very difficult to establish that the property in question is at the “disposal” of criminal organisations. Even the US concept of criminal forfeiture, which advocates some evidentiary relief in 21 U.S.C. § 853(d), does not provide for the so-called reversal of the burden of proof with regard to the issue at stake. Article 5(7) of the Vienna Convention, like Article 12(7) of the 2000 Convention, provides for the possibility of a so-called reversal of the burden of proof on the subject of asset forfeiture. However, it should be noted that these provisions of international agreements, on the one hand, bind the parties only relatively, i.e. they provide a certain possibility, but do not create any obligation. On the other hand, they require that the basis of the legal orders of the parties to the convention be taken into account. They do not appear to have played a major role in either the common law or the statute law systems. While in the first system of law the issue raised took permanent root much earlier in civil law alone, in the second it is unacceptable in its pure form.
The article examines the principle of international criminal justice - the presumption of innocence of the defendant. Its content, limits are clarified, the practice of the European Court of Human Rights is analyzed, as well as the practice of international tribunals on the presumption of innocence of the defendant as part of his right to a fair trial.It is established that presumptions of a legal nature on matters of fact and law are admissible in international criminal proceedings only if the defendant is given the opportunity to refute them and prove his innocence.The presumption of innocence is enshrined as a principle and right of the defendant in modern international criminal procedure law, primarily in the Statutes of international courts and tribunals. An analysis of the relevant provisions of these statutes shows that the presumption of innocence means at least that: 1) the burden of proof lies on the prosecution; 2) evidence of guilt must meet a certain standard; 3) in some cases, the presumption may include additional rights, such as the right to bail, as well as additional conditions, such as the condition of a guilty plea only by a lawful court or following a trial in which all rights of defense have been secured, etc. .; 4) the defendant has the right to doubt in his favor; 5) the right of the defendant to remain silent; 6) the right of the defendant to a certain standard of conviction or acquittal; 7) theright of the defendant to compensation in case of acquittal. The formulation of the presumption of innocencein the Covenant and the Convention allows the establishment of the innocence of the defendant by different procedures depending on “what is at stake”, ie depending on the legal consequences arising from the establishment of guilt. If the defendant can be released from criminal liability and punishment, the procedure for rebutting the presumption of his innocence may be different, and the defendant, of course, must be provided with all means of protection against prosecution.
This year, Norway did not ratify or accede to any new international agreements related to environmental protection, climate change, and natural resource management. In September, the multilateral Free Trade Agreement between the three European Economic Area (EEA) European Free Trade Association (EFTA) states (Iceland, Liechtenstein, and Norway) and the United Kingdom entered into force. The agreement was created in the wake of the United Kingdom’s withdrawal from the European Union (EU) agreement and, apart from the European Economic Area Agreement (EEA Agreement), is the most comprehensive free trade agreement that Norway has ever joined. Through areas such as trade, competition, investments, and public procurement, this agreement seeks to provide a high level of protection of climate, environmental, and labour rights. Furthermore, the United Kingdom is the largest market for offshore wind in Europe, and the country to which Norway exports the most. In 2020, Norwegian companies exported goods worth almost 135 billion Norwegian krone (NOK) to the United Kingdom, corresponding to 22 percent of all Norwegian exports, while imports amounted to almost NOK 42 billion. This agreement seeks to enable future cooperation and development of the offshore wind industry and the energy transition but also facilitate other green technology areas where cooperation with the United Kingdom will continue to be important, such as carbon capture and storage, batteries, and hydrogen. As of this year, Norway has participated in eleven EU programs and thirty-one EU agencies, by virtue of the EEA Agreement and other bilateral agreements with the EU. Several of these programs focus on environmental, climate, and sustainability issues. One example is Horizon Europe, the EU’s key funding program for research and development, aiming to tackle climate change, achieve the United Nations 2030 Sustainable Development Goals, and boost the EU’s competitiveness and growth. In February, Norway decided to suspend further environmental cooperation with Russia due to Russia’s war actions against Ukraine. Norway and Russia have been engaged in bilateral cooperation since 1992 in areas such as conservation of biodiversity, pollution prevention, marine environment, and monitoring of the air quality in the border regions of the two countries. In March, Norway and Germany signed two joint declarations to mark the beginning of closer cooperation for increased production of renewable energy and the development of green industries. These ambitious declarations outline the next steps in cooperation regarding hydrogen, battery technology, offshore wind, and carbon capture and storage. The goal is to achieve shared climate goals, create new green industries and jobs, and strengthen energy security between the two countries. In April, Norway and the EU reached a political understanding in relation to ensuring sustainable fishing and granting access for EU fleets fishing in the Northeast Arctic, an area comprising the waters around the archipelago of Svalbard and the international waters of the Barents Sea. First, the understanding reiterates Norway and the EU’s international legal obligations to ensure sustainable management of marine living resources in the Northeast Arctic. Second, the understanding allows EU fleets that are fishing for cod in the waters around the archipelago of Svalbard to continue fishing, in line with their historic fishing rights. Third, reference was made to a continuation of established practice for setting the limit for total allowable catch (TAC) for EU vessels fishing in Svalbard waters in its regulations. This allowed the EU to set a final TAC of 19,636 tons for polar cod through amending the 2022 Fishing Opportunity Regulation, which replaced the previous TAC of 4,500 tons, which expired on by the end of April. In July, Norway signed a new cooperation agreement with the United Nations Environment Programme (UNEP) of approximately US $53 million (NOK 520 million). The new agreement will, for example, provide funding for UNEP’s three new thematic funds to address achieve Climate Stability, Living in Harmony with Nature, and a move Towards a Pollution-Free Planet (<https://www.unep.org/news-and-stories/story/norway-steps-support-unep-landmark-partnership>). In September, Norway and Tanzania issued a joint statement on the continuation and expansion of their climate partnership, which has been ongoing since the two governments signed a memorandum of understanding in 2008. The aim of the renewed bilateral cooperation is, among other things, to strengthen, implement, and realize Tanzania’s climate policy and ambitions. Some new thematic areas that were proposed include support for national climate implementation and increased support for international climate finance, and support for decentralized climate finance and investments. The partnership also aims to address climate change as a cross-cutting issue in the agriculture and energy sectors under the current programs supported by Norway. In September, a memorandum of understanding was signed between Norway and Indonesia, reaffirming the parties’ intention to enter into a climate partnership to support Indonesia’s Forestry and Other Land Use Net Sink 2030 Operational Plan and Norway’s support for Indonesia’s results in reducing emissions from deforestation and forest degradation through performance-based contributions. In November, the governments of Norway and Switzerland met to explore bilateral cooperation on carbon capture and storage (CCS) and carbon dioxide removal. Norway has more than twenty-five years of experience in subsea carbon dioxide storage with CCS projects such as Snøhvit and Sleipner. The Norwegian full-chain CCS project, Longship, represents one of several projects paving the way for CCS as a tool to decarbonize hard-to-mitigate sectors. For Switzerland, with more limited carbon dioxide storage potential, international cooperation is essential to contribute to the Swiss goal of net zero greenhouse gas emissions by 2050. The ambitious climate and environmental policy and accompanying regulatory measures at the EU level continue to influence Norway’s legal obligations. According to the dualistic system of the EFTA states, the obligation to implement an EEA regulation in Norwegian law takes place through incorporation. With large parts of the EU legislation from comprehensive packages of measures, such as the EU Green Deal, considered EEA-relevant, Norway may in the next years expect further developments in areas relevant to, for example, climate, energy, industry and the circular economy, construction, transport, food, ecosystems and biodiversity, and green financing. In January, the regulation relating to emission requirements for vehicles in connection with public procurement for road transport entered into force. This regulation has been changed several times the last few years, and a new version of the regulation was announced in December (and will come into force in January 2023). By stipulating requirements for zero emissions in public procurement of passenger cars, light vans, and city buses, the regulation seeks to fulfil Norway’s obligations under EU Directive 2019/1161 amending EC Directive 2009/33 on the Promotion of Clean and Energy-efficient Road Transport Vehicles. Also in January, amendments to Chapter 7 of the Pollution Control Regulations, where Section 7-6 stipulates new limit values for air pollution, were made applicable to Norwegian pollution legislation. The amendment has resulted in lower permissible limit values, and lowered the threshold for when measures to improve air quality should be initiated. The legislative amendment, which was primarily intended to ensure safe outdoor air quality for the population and ecosystems in Norway, was also intended to make the regulations easier to comply with and the duties more achievable. Furthermore, it implemented EC Directive 2008/50 on Ambient Air Quality and Cleaner Air for Europe, which is part of the EEA Agreement. In June, new legislation on organic production became applicable to Norway. The legislation is based on EU Regulation 2018/848 on Organic Production and Labelling of Organic Products, also known as the basic act, which regulates conditions under which agricultural and aquaculture products, foodstuffs, and feed can be labelled as organic. Further detailed secondary legal acts are based on this regulation. The basic act includes requirements that safeguard consumer trust, plant health, animal and fish health, animal and fish welfare, and the environment. In December, EU Regulation 2020/852 on the Establishment of a Framework to Facilitate Sustainable Investment (Taxonomy Regulation) and EU Regulation 2019/2088 on Sustainability-related Disclosures in the Financial Services Sector (Disclosure Regulation) entered into force in the EEA Agreement. To implement these regulations in Norwegian law, in December 2021 the Norwegian Parliament adopted the Act on the Disclosure of Sustainability Information in the Financial Sector and a Framework for Sustainable Investments (Sustainable Finance Act). The Act, which was projected to come into force in 2022, was made applicable to Norwegian legislation from January 2023 onwards. The accompanying Regulation to the Sustainable Finance Act was announced in December 2022, and will come into force in January 2023. The taxonomy of sustainable economic activities is a classification system that aims to facilitate financial markets to invest capital in profitable sustainable activities and projects. Sustainable finance is one of the key areas of the European Green Deal, which the EU presented in 2020, to make Europe the first climate-neutral region in the world by 2050. The taxonomy shall also contribute to preventing greenwashing and form the basis for standards and labelling schemes for green financial products and instruments. While the taxonomy does not set requirements for private or public investments as such, it is a tool intended to make it easier for financial market participants to assess whether investments are in line with climate and environmental goals and provide companies with better opportunities to phase out activities that are not or less sustainable. The Taxonomy Regulation establishes the overall framework for the classification system and defines what constitute a sustainable activity. For an activity to be classified as sustainable, it must meet three criteria: (i) contribute significantly to at least one of six environmental goals; (ii) not be detrimental to any of the other environmental objectives; and (iii) the activity must be carried out in compliance with minimum safeguards connected to social and governance relations. The six environmental objectives are: (i) climate change mitigation; (ii) climate change adaptation; (iii) sustainable use and protection of water and marine resources; (iv) transition to a circular economy; (v) pollution prevention and control; and (vi) protection and restoration of biodiversity and ecosystems. The European Commission works continuously to establish detailed criteria for when specific activities can be defined as sustainable and are set out in so-called delegated acts. The first set of criteria came into force in the EU in January 2022 (and will come into effect in Norway in January 2023): Commission Delegated EU Regulation no. 2021/2800 (<https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021R2139>). Since Norway had not fully implemented the EU regulations in 2022, the reporting requirements for Norwegian companies were more limited. However, these requirements will increase incrementally as implementation increases over the next couple of years. The Disclosure Regulation provides the general regulatory framework for the information that must be published by financial market undertakings. This regulation stipulates, inter alia, requirements for disclosure of information on how enterprises’ investments and operations contribute to sustainable development, and requirements for information to be provided when selling financial products. The participants obliged to deliver these obligations are financial market participants and financial advisers, as referred to in Articles 2(1) and 2(11) of the regulation. Besides the above-mentioned EU legislation, Norway legislated a general ban on heavy fuel oil throughout Svalbard’s territorial waters in January. The prohibition entails that it is not permitted to use or carry on board petroleum-based fuels with a higher viscosity, density, or solidification point than permitted for marine gas oil. Marine gas oil is defined in separate regulations issued by the ministry. The purpose of the ban is to avoid heavy fuel oil spills and limit pollution in the event of shipping accidents in the territorial waters around Svalbard by requiring diesel types that produce less severe pollution in the event of a spill. The prohibition is authorized by Section 82a of the Svalbard Environmental Protection Act. A ban was introduced in 2009, but it only applied in the protected areas in Svalbard. In recent years, however, shipping in the Arctic has gradually increased. A general ban on heavy fuel oil in Svalbard is therefore an important step towards the phasing out of heavy fuel oil as of 2024, which was decided by the International Maritime Organization. However, the ban will not enter into force for ships carrying coal or general cargo to and from Longyearbyen and Barentsburg until 2024. In June, the renewed Norwegian Plastics Strategy was announced. The Strategy brings together the government’s plastics policy and describes most of the measures that have been or are currently being implemented to reduce plastic litter and plastic pollution. Through targeting the entire life cycle of a plastic product, such as product frameworks for plastics, measures to reduce consumption, plastic waste from sea-based sources, and waste management, the Strategy takes a comprehensive approach. Also in June, the Norwegian government presented the Green Industrial Initiative. This roadmap represents a plan for the Norwegian government’s work to promote green industry. The document sets out ambitions, instruments, and measures to bring Norway into a low-carbon emission through the help of seven industries: offshore wind; hydrogen; batteries; the maritime industry; carbon dioxide management; forestry, wood, and bioeconomy; and the process industry. The government aims to facilitate faster development of projects within the areas, including through stronger capital instruments. As part of its green industry strategy, Norway also launched its first battery strategy, which represents ten actions for how Norway will further develop a holistic and profitable battery value chain, from sustainable mineral extraction to battery recycling. In September, the current Norwegian government proposed, for its 2023 budget, a mandatory resource rent tax on Norwegian aquaculture and onshore wind power and an increase in the already existing resource rent tax on hydropower. The main argument behind the proposal is that the power producers and the aquaculture industry earn billions from the exploitation of common resources, and that society should get back more of the value created. Some of the proposals have been met with strong opposition from some communities, especially the aquaculture industry. To produce salmon, trout, and rainbow trout, a ground rent tax with an effective rate of 40 percent, and a bottom deduction of 4,000–5,000 tons, was proposed to ensure that only the largest companies pay the ground rent tax. The proposal is based on recommendations by the Aquaculture Tax Committee in NOU 2019:18, Taxation of Aquaculture Activities. The Committee found that the seafood industry, as the largest Norwegian export industry on the mainland, held licences for aquaculture of food fish with a market value of approximately NOK 200 billion in 2019. It is estimated that the industry has paid just under 7 billion NOK to the public sector, corresponding to approximately three percent of the value of the permits. Changes to the resource interest tax have already been proposed, and it remains to be seen what will be adopted in this context. In October, the Norwegian government presented the white paper Meld. St. 6 (2022–2023): Greener and More Active State Ownership: The State’s Direct Ownership of Companies. Societal development patterns and pressures, such as climate change, energy transition, international unrest, increasing inequality, and urbanization, affect the activities of the state-owned companies and how the ownership should be organized. With this white paper, the government seeks to demonstrate how state ownership may contribute to profitable and good services, and responsible corporate governance to respond to some of these challenges and contribute to accelerate the transition of the entire Norwegian business sector to become a low-emission society. The white paper lists the government-owned companies and explains why it has direct ownership interests in these and how the ownership is exercised, including the government’s principles for good corporate governance and expectations of the companies. In November, Norway’s strategy for promoting food self-sufficiency was released in development policy: Combining Forces against Hunger: A Policy to Improve Food Self-sufficiency. This strategy seeks to follow up on the ambitions set out in the Hurdal Platform, where the current government has made food safety and the fight against hunger a key priority in Norwegian development policy. This strategy’s four main goals are to: (i) increase local climate-resilient food production; (ii) increase local value creation and incomes for food producers; (iii) reduce malnutrition and undernutrition; and (iv) reduce the scale of hunger crises. During the autumn, the Norwegian Ministry of Finance presented its Prop. 1 LS (2022-2023) Proposition (Proposition and Proposed Resolution) for Fiscal Year 2023 Taxes, Duties and Customs 2023. In the document, it was proposed to increase taxes on quota-obliged and non-quota emissions of greenhouse gases to ambitious levels: the carbon dioxide tax was proposed to be increased from today’s NOK 590 per tons to NOK 2,000 per tons in 2030. This corresponds to an increase in the carbon dioxide tax of 15 percent every year until 2030, and a halving of today’s emissions. Together with participation in the EU’s quota system, taxes on greenhouse gas emissions are the most important instruments in Norwegian climate policy. It remains to be seen whether and how these goals will be implemented at a political and legal level in the coming years. There were no high-profile cases in the field of environmental law this year.
The Dutch news cycle was mainly dominated by two topics this year: the ongoing COVID-19 pandemic and the formation of a new coalition government. The formation process followed the general elections of March and was accompanied by various scandals and leaked formation notes. After a record nine months, in January 2022, at last a coalition agreement was formed—between the exact four parties that had also formed the preceding coalition. In the meantime, many existing environmental challenges lingered on or were exacerbated, without much political action being taken to address them. There were some notable changes to the political discourse on some of these problems, however. The need to address climate change, for instance, was put high on the agenda of the formation talks after the intense rainfall and high water of July 2021 in the south of the Netherlands and neighbouring areas in Belgium and Germany. In a press conference in early August, prime minister Mark Rutte (at the time, demissionary, now prime minister again) stated that ‘the Netherlands became seventh during the Olympic games. In the Olympic Games of the Climate, we can be number one too’ (translated by author). It remains to be seen, of course, whether this ambitious spirit will be met with corresponding actions. Considering various political and socio-economic developments in 2021, there are reasons to be both optimistic as well as pessimistic, as will be discussed below. Home of the famous Urgenda ruling, the Netherlands will be known to many as a catalyst for climate litigation across the globe. At the national level, Urgenda has also paved the way for new legal challenges to follow suit. This year, the Dutch branch of the environmental non-governmental organization (NGO) Friends of the Earth (Milieudefensie) successfully sued Shell Plc for failing to reduce their emissions. The origins of the case lay in early April 2018, when Milieudefensie sent a notice letter to the chief executive officer of Shell to explain why it is of the position that the company, through its corporate activities and strategy, is breaching its duty of care by causing climate damage across the globe and undermining the ambitions of the Paris Agreement. A month later, Shell responded that it did not find Milieudefensie’s claims and demands justified. A lawsuit was then initiated by Milieudefensie, in which the environmental NGO was joined by six additional environmental NGOs and more than 17,000 co-plaintiffs from civil society. The case was heard by the District Court in The Hague in December 2020, with the ruling delivered on 26 May 2021 (ECLI:NL:RBDHA:2021, 5339). In its historic judgment, the District Court found that that Shell must reduce its global net carbon emissions by 45 percent by 2030 as compared to 2019 levels. In detailing its ruling, the court started from the basis that continued emissions will lead to dangerous and irreversible climate change, referring to the reports of the International Panel on Climate Change as well as national climate reports. The court subsequently found that Milieudefensie could bring a collective action pursuant to Book 3, section 305a of the Dutch Civil Code, which reads that a foundation or association with full legal capacity may institute legal proceedings for the protection of similar interests of other persons. Important to add here is that, although the court recognized that the ‘entire world population is served by curbing dangerous climate change’ (para. 4.2.3), the diffuse manner and time in which climate risks manifest globally mean that the interests of current and future generations of the world’s population cannot be bundled. The interests of current and future Dutch generations were considered sufficiently similar for a collective action to be taken by these environmental NGOs, however, meaning that Milieudefensie could take the case on behalf of Dutch residents. Milieudefensie had further requested Dutch law to be applicable on the actions of Shell on the basis of Article 7 of EC Regulation 864/2007 on the Law Applicable to Non-contractual Obligations. The court accepted this on the basis that the corporate policy of the Shell group ‘constitutes an independent cause of the damage, which may contribute to environmental damage and imminent environmental damage with respect to Dutch residents and the inhabitants of the Wadden region’ (para. 4.3.6.). In detailing its judgment, the court ruled that ‘the CO2 emissions for which [Shell] can be held responsible by their nature pose a very serious threat, with a high risk of damage to Dutch residents and the inhabitants of the Wadden region and with serious human rights impacts’ (para. 4.4.54). Based on an unwritten standard of care pursuant to Book 6, section 162 of the Dutch Civil Code, the court ordered Shell to meet a reduction obligation of 45 percent by 2030, provisionally effective, meaning Shell must comply even though an appeal is still open. The case is groundbreaking in that it is the first time that a court of law found a private company to have a legal duty to reduce emissions. On top of that, the court ordered a concrete emission reduction target binding upon the company. Environmental groups across the world are now reflecting on what can be learned from this case, and how the case can be replicated in other jurisdictions and sectors. The Dutch court has helpfully published an English translation of this case that may be of assistance to such groups. It is important to emphasize here that the final word on this case has not been said. In fact, Shell has already confirmed it will appeal the judgment, with the company’s chief executive officer noting that, although they agree that ‘urgent action is needed and we will accelerate our transition to net zero,’ the company will appeal the ruling because ‘a court judgment, against a single company, is not effective’ (see 2021 media releases <http://www.shell.com>). Instead, the company advocates in its press release for clear, ambitious policies that can promote change across the entire energy system, and at a global level. Whether Shell thus far has played a constructive part in driving such changes to government policies can be debated, of course. Interestingly, this was not Milieudefensie’s only win against Shell in 2021. In fact, on 29 January, the Court of Appeal of The Hague ruled that Shell’s Nigerian subsidiary is liable for the consequences of two oil spills in Nigeria (ECLI:NLGDHA:2021, 132, 133, and 134). This case, brought by four Nigerian farmers and Milieudefensie, had been continuing for thirteen years and relates to oil leaks that took place between 2004–7. Shell disclaimed liability, stating that the oil spills had been caused by sabotage, as a result of which there would be no liability under Nigerian law. The Court of Appeal did not follow this reasoning. That a Dutch court could have jurisdiction and competence to judge compliance with Nigerian law had been decided in an earlier ruling in 2015, due to the fact that the parent company of the Nigerian subsidiary was based in the Netherlands (ECLI:NL:GHDHA:2015, 3586, 3587 and 3588). A final note regarding climate litigation relates to the impact of climate litigation in practice. In 2015, the District Court of The Hague ruled that the Dutch State would have to ensure that carbon dioxide emissions are reduced by 25 percent in 2020 as compared to 1990. Even though the government decided to (unsuccessfully) appeal this judgment all the way up to the Supreme Court level, the fact remains that the emission reduction requirement was binding from the start. In 2021, there were no signs that the state had lived up to the Court’s judgment. As a consequence, Urgenda decided to initiate new proceedings to request the judge to impose a penalty payment on the state to secure compliance with the judgment. In early 2022, final emissions data were published by the Dutch Environmental Assessment Agency, which showed that in 2020, 25.5 percent less carbon dioxide had been emitted, compared to 1990. The most recent data shows that in 2021, however, emissions had gone up again, towards a 23.9 percent reduction compared to 1990. It is important to note here that the original reduction requirement relates to the absolute minimum needed from industrialized countries to remain below a temperature rise of two degrees Celsius (not 1.5 degrees Celsius). As it turns out, not even a court judgment has thus far incentivized the Dutch government to indeed meet this minimum reduction. Besides being problematic from a climate action perspective, such non-action also threatens the functioning of the rule of law—rechtsstaat, in the Dutch context—in which governments are bound by the law and must respect the judgments of independent judges. In both respects, it seems crucial to remain vigilant of the country’s commitment to climate action in the years to come, ensuring that the Urgenda judgment is in fact respected. In the previous report on the Netherlands in this Yearbook, Lorenzo Squintani explained in detail how the country entered a societal and political gridlock when the Dutch Council of State, in its judgment of 2019, found the Dutch Programmatic Approach to nitrogen oxides to be incompatible with EU nature conservation law. Squintani described in his report how the ‘search for a solution to the low quality of soil in Natura 2000 sites is greatly overshadowed by the search for a solution for economic interests’ (at 382). This observation, in many ways, holds true today, and an unmistakable amount of scientific evidence shows that excessive nitrogen emissions remain a core threat to biodiversity and nature values in the country. Over the course of the past year, measures were initiated that may hopefully help change this course, however. First, on 1 July, the Act on nitrogen reduction and nature improvement (stikstofreductie en natuurverbetering) entered into force, amending existing nature legislation. The Act sets a time-based result obligation for ensuring that protected nature sites have a healthy nitrogen disposition—namely, 40 percent of the coverage of such sites in 2025, 50 percent in 2030, and 74 percent in 2035. In addition, the Act requires the establishment of a governmental program with concrete measures and intermediary goals to realize these binding targets, accompanied by monitoring requirements. In the coalition agreement, presented on 15 December, a total amount of €25 billion was made available to address the nitrogen crisis in the period until 2035, of which €20 billion must have been spent by the year 2030. For spending these funds, the national government puts the responsibility at the provincial level. The aim here is to develop more of a locality-based approach, with the twelve provinces being required to develop detailed plans on how nitrogen emissions will be addressed per individual area within their province. The provinces must present their plans in 2023—which may then allow for further collaboration and coordination between them—after which, the national government will evaluate these plans and provide the funding. Although the chosen approach may provide provinces with the necessary flexibility to adapt measures to their local circumstances, the success of this approach is very much dependent on the commitment of individual provinces—which has proven to be fiddly in the past. Besides the stipulated budget, the exact manner in which the nitrogen crisis will be addressed is thus still very much unclear. In the agricultural domain—the main source of nitrogen emissions in the country—the focus still seems to be on financial instruments to incentivize a shift towards circular agriculture with drastically reduced nitrogen outputs. Farms with high emissions that cannot reduce their emissions and are located close to protected nature sites may be offered a government buyout or—although this is not confirmed—may be forced to sell their farm. Such forced buyouts, however, are time-consuming and expensive, on top of being highly politically sensitive, particularly in light of the large-scale farmer protests of 2019–20. As such, this does not seem to be the preferred government option. Besides measures flowing from the Nitrogen Act, the Dutch draft National Strategic Plan for the Common Agricultural Policy 2023–7 is another instrument that may play an important role in addressing nitrogen emissions. Although the word ‘nitrogen’ occurs no less than sixty-three times on the in the total 107 pages of this plan, the actual measures that may be used are not made very concrete. Various generic types of interventions are mentioned that may contribute to reducing nitrogen emissions, including the use of eco-schemes, agri-environmental subsidies, enhancing cooperation, and promoting knowledge and information distributing (at 30). In addition, the plan seeks to commit funds towards the strengthening of cooperation between farmers and other area partners, so that problems can addressed at a landscape scale. This includes subsidies for the development of area plans that stipulate concrete measures per area, including the extensification of high emission farms located close to nitrogen-sensitive Natura 2000 sites. Overall, it remains to be seen to what extent instruments of the policy will be employed to help meet the objectives of the new Nitrogen Act. Despite these new measures, over the course of the year, several new cases were brought (and won) by environmental NGOs to enforce rules on nitrogen, highlighting continued faults in the government’s nitrogen approach and particularly the calculation methods of nitrogen permits (see, for example, ECLI:NL:RBOBR:2021, 6389). The only real way to change this course seems to be to for the (provincial) government to stop searching for paper solutions and start addressing the various existing environmental challenges in a holistic, non-isolated manner. This also appears as a central plank in the coalition agreement, in which it is stipulated that nitrogen measures should also help, for instance, to address biodiversity declines and improve water quality. It is not a stretch to say that the Netherlands can rightly anticipate new (legal) challenges about that second aspect, as it is increasingly becoming clear that the Netherlands are nowhere near on track to meet the binding targets of EC Directive 2000/60 Establishing a Framework for Community Action in the Field of Water Policy. A more holistic approach to law and policy making, in which environmental and other societal challenges are no longer dealt with in isolation, will be of key importance here. This year also presented several interesting rulings by the Dutch Council of State on the application of environmental democracy rights flowing from the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). The point of departure for us here is a ruling by the Court of Justice of the European Union (CJEU) on Stichting Varkens in Nood and Others, of 14 January 2021 (C-826/18). In brief, this case dealt with a request for a preliminary reference submitted by the Dutch District Court of Limburg, seeking clarification on Articles 6 and 9(2) of the Aarhus Convention. These provisions respectively provide that a decision to authorize environmental activities must be subject to a public participation procedure, and that there should be a right of access to justice to subsequently challenge such decisions. In the Netherlands, any person can participate in a decision-making procedure by making a submission on a draft decision. There is no obligation for public actors to adapt draft decisions based on submissions received. In Article 6:13 of the Dutch General Administrative Law Act, then, it is stipulated that only interested parties that have submitted observations on a draft decision during the preparatory procedure may subsequently challenge the adopted decision in court. Exceptions to this rule are possible when an applicant is able show that this requirement could not reasonably be met—for instance, because a draft decision was not publicized. In general, however, the rule stands that, without having participated in the decision-making process by making a (written or oral) submission, there is no subsequent access to justice. In the preliminary ruling, the CJEU found that this requirement is not in line with the Aarhus Convention. Instead, interested parties should have the right to appeal a decision, even if they have not made submissions in the preparatory phase. In addition, the court ruled that people who are deemed interested parties for the purpose of making submissions should also, subsequently, be allowed to appeal a decision before a court of law. If the Netherlands thus allows any person to make submissions, it should also allow any person to subsequently challenge an adopted decision in court. On 15 April, the Dutch Council of State subsequently ruled that, indeed, interested parties can also appeal decisions if they have not made submissions. For environmental NGOs and other potential applicants, this may be quite the relief. As recent empirical work on the application of the Aarhus Convention shows, the submission requirement can be relatively burdensome in practice, especially for smaller environmental groups. On paper, this submission requirement serves to improve the decision-making process by ensuring that different considerations and perspectives could be considered before a final decision comes to being. In practice, it seems that submissions hardly led to decisions being adapted in the preparatory phase. As such, the main reason for making submissions was purely to be able to challenge a decision, if need be, later. After these judgments, it is now the legislator’s turn to decide how to incorporate these rulings into domestic law, ensuring compliance with the Aarhus Convention. With a focus on the domains of climate, nature, and environmental democracy, this report has reasons to be optimistic as well as regarding the development of environmental law in the there are several to a close on for the future of environmental law in the country. In to climate in both Shell cases that were the country of of the parent company played an important role in the It can be that can climate litigation proceedings if they are based in countries with less climate or less Whether due to with Dutch climate cases or other at the of 2021, Shell decided to its to A environmental NGO has already that it will bring an action against the of Shell for failing to develop company in line with the Paris in breaching their under the law. In the it should clear whether climate litigation will branch also in this new or In to nitrogen, then, when the new coalition government was presented on January 2022, the a new that the is in the the minister of nature and The of this new minister is to nature and in a by As the new Act on nitrogen reduction and nature improvement is being and the of to addressing excessive nitrogen emissions are put to it can only be that the environmental challenges at play will be as environmental democracy, it is now thus the legislator’s turn to ensure that Dutch law is in line with the new line of case law discussed it is also in the that, to up to the ambitions of the Aarhus not only changes also changes in the way that public actors environmental democracy in are As has also been in previous year much work remains to be in this
This article aims to clarify the meaning and operation of the rules governing the burden of proof in discrimination cases under EU law. In addition to the text of the antidiscrimination directives, it looks at the guidelines provided by the Court of Justice of the European Union and at the application of these rules at the domestic level, focusing on three Member States: Belgium, France and Ireland. Section 1 describes the basic operation of the burden of proof provision, clarifies the respective obligations it entails for claimants and respondents and highlights differences resulting from whether direct or indirect discrimination is at stake. Section 2 considers in more detail the means of evidence that can be used to establish discrimination, with particular emphasis on statistics and situation testing. Section examines the issue of complainants' access to information held by the alleged discriminator and Section 4 offers conclusions.
Introduction: the differences in the scientific interpretations of the concept of "state of proof" are due to the use of different methodological approaches in its study. This category is usually associated with "sufficiency", which, in turn, means that what is at stake meets the needs, the necessary conditions; manifests itself to the necessary extent; is available in the necessary amount. Accordingly, the state of proof in criminal proceedings should reflect the result of cognitive activity based on sufficient evidence, to summarize the process of proving the circumstances and facts relevant to the correct resolution of the criminal case, to answer the question of availability of the optimal amount of evidence to make an informed decision.
In its jurisprudence the Court of Justice of the European Union (CJEU) has changed its approach towards the purely internal situation rule applicable in the context of the market freedoms. From the 1990s onwards the Court has showed a greater leniency in accepting that certain cases fall within the scope of Union law, as compared to in the years before. This has been done in various ways, depending on the specific fundamental freedom at stake in the case, but always resulted in a relaxing of the fulfilment of the test used for determining whether a case falls within the scope of a market freedom - the linking factor test. More specifically, the Court seems to be accepting that hypothetical future scenarios are sufficient to bring a case within the scope of EU law even though the underlying facts of the case do not satisfy the test, or even to rule in cases which clearly do not fulfil some of the conditions of the test. The overall change of approach towards the purely internal rule can also be seen in an issue of jurisdiction, and not scope, which is still however relevant. This is the fact that the Court has begun issuing preliminary reference rulings in purely internal cases whereby the question referred is in reality hypothetical. It will be claimed that the CJEU does so without requiring sufficient proof by the domestic court that an EU law interpretation is required.
Abstract The tension between the right to family reunification as laid down in European Directives and Member States’ concern to protect their sovereignty in regulating migration has resulted in growing attention to and concern about fraudulent family relationships (especially marriages of convenience). This contribution addresses the question of what forms of control are permissible from a European law perspective and whether national practices are in conformity with European law and fundamental rights. Looking at these national practices several problems are identified: definitions of ‘marriages of convenience’ extending beyond what European law allows; systematic checks of certain nationalities/ethnic groups, mixed couples and/or gender may amount to discrimination and the burden of proof seems to be shifting to couples. Comparing control practices for marriages of convenience with those of homosexual asylum seekers, it is argued that human dignity is at stake.
The Constitution of the Republic of Serbia from 2006. has been the subject of sharp criticism of many legal experts. The way it was written, adopted and approved in the referendum, for sure it can’t be a praiseworthy example of legality and, with some of its controversial solutions, it inevitably indicates the necessity to be altered. These problematic Constitutional provisions are the subject of this article. Starting from the very preamble of the Constitution, unnecessarily discriminating position between the autonomous provinces, politicizing and the non-coexistence of the Constitutional text could be clearly observed. The Constitutional attack on the freedom of parliamentary mandate has been causing constant and numerous criticism of domestic and foreign public but at no time it did not make most of the parties hesitate to use their unfairly acquired right. Decentralization always causes a live debate, proposing various models and modalities, but only few of them could be possibly finalized by a general consensus. Serbian firm commitment to become a member of the European Union, at one point calls for a constitutional revision which would transfer the execution of certain part of sovereign rights to that supra-national organization. We could only hope that the political elite will not use any future reform to violate guaranteed constitutional rights, as was the case with the reform of the judiciary. Amending the Constitution has been always a difficult and time consuming process, hence the sooner the amending starts, the more likely are the chances to have it completed in democratic and tolerant atmosphere for the benefit of all citizens of Serbia.
This article aims at presenting trends in the state-local budget-cooperation system in Denmark, following the local government reform in 2007 and the fiscal rules in the budget law from 2012. The article investigates some of the characteristics of the development from 1980 until 2016. Evidence gives support to the hypothesis that the possibility for the municipalities’ organization to negotiate increasing expenditures has been narrowed, however accompanied by more liberal grant financing. The local government reform seems to have opened a window of opportunity for an elaborated system of collective and especially individual central government sanctions to strengthen the macroeconomic management of service expenditures of local governments. The identified trends in the Danish state-local relations may indicate that the decentralized model of local governments in Denmark is increasingly under pressure. However, the Danish municipal sector is still growing with respect to economic significance.
Key points The year 2014 witnessed the advent of new and strengthened collective action clauses (CACs) in foreign law sovereign bonds. These new clauses hold the promise to significantly strengthen the orderliness and predictability of the contractual market-based framework for the sovereign debt-restructuring process. This article looks at how these new CACs came about. The new CACs were borne from a process undertaken by an informal ‘Sovereign Debt Roundtable’ grouping that was convened, chaired and strategically led by US Treasury staff over more than one-and-a-half years. The inclusiveness of the Roundtable, the deliberative process, which was followed and the leadership and backing of the official community were integral to bringing about the private sector and success. The Roundtable’s deliberations built heavily upon earlier Treasury work to advance CACs, in particular during the 2002–2004 period. But the new clauses go further than the bond-by-bond clauses that were the focus from 2002 to 2004, as they allow in certain defined conditions the votes of different bond issues to be aggregated into a single up or down vote on the issuers’ restructuring proposal. In this regard, the new clauses reflect the continuity in the US approach under the Bush and Obama Administrations to promoting an orderly and predictable sovereign debt-restructuring process based upon the contractual framework, in addition to US opposition to statutory approaches. But they also represent innovation under the Obama Administration in advancing and buttressing the US approach. … in order to strengthen the orderliness and predictability of the sovereign debt restructuring process, we welcome the international work on strengthened collective action and pari passu clauses. We call for their inclusion in international sovereign bonds and encourage the international community and private sector to actively promote their use. G20 Leaders’ Communique; Brisbane, Australia; 16 November 2014 We welcome Mexico’s leadership with its successful issuance of a bond with new and innovative collective actions clauses under New York law. These new clauses will strengthen the sovereign debt restructuring process, and we encourage other nations to follow suit. Secretary of the Treasury Jacob Lew, 19 November 2014 We look forward to upcoming discussions around the International Capital Market Association’s (ICMA) proposal on possible means to reinforce collective action clauses in sovereign bonds… G20 Finance Ministers; Cairns, Australia; 21 September 2014 … ICMA recently published revised collective action clauses for sovereign debt that permit more orderly workouts and lower the chance of spillovers. These clauses … now allow for aggregation across many different debt issues, avoiding the need to vote on each loan one by one. John B. Taylor, Wall Street Journal, 9 July 2015 The late autumn of 2014 witnessed the advent of new and strengthened collective action clauses (CACs) in foreign law sovereign bonds. These new clauses hold the promise to significantly strengthen the orderliness and predictability of the contractual market-based framework for the sovereign debt-restructuring process. They were born from a process that was convened, chaired and strategically led by Treasury staff over more than one to one-and-a-half years. 1 The group working on the new clauses included issuing country representatives, inter alia from Mexico, Uruguay, Brazil and Turkey; leading UK and US sovereign debt legal experts; an array of market participants and academics; other official actors, including from France, the UK and Germany; and the IMF. In particular, this informal ‘Sovereign Debt Roundtable’ grouping also included Mexico’s debt manager and representatives from the London-based International Capital Markets Association (ICMA), an association representing some 500 firms from the international financial community, among others. The inclusiveness of the Roundtable, the deliberative process, which was followed and the leadership and backing of the official community were integral to bringing along the private sector and success. The Roundtable’s deliberations built heavily upon earlier Treasury work to advance CACs, in particular during the 2002–2004 period. But the new clauses go further than the bond-by-bond clauses that were the focus from 2002 to 2004, as they allow, in certain defined conditions, the votes of different bond issuers to be aggregated into a single up or down vote on the issuers’ restructuring proposal. In this regard, the new clauses reflect the continuity in the US approach under the Bush and Obama Administrations to promoting an orderly and predictable sovereign debt-restructuring process based upon the contractual framework, in addition to US opposition to statutory approaches. But they also represent innovation under the Obama Administration in advancing and buttressing the US approach. The US Treasury, in a speech by the then Under Secretary John B Taylor, outlined its support for the decentralized, market-oriented contractual approach to sovereign debt restructuring in 2002. 2 Around that time, a G-10 working group, chaired by Randal K Quarles, then Assistant Secretary of the Treasury for International Affairs, and including leading sovereign debt lawyers, began work on developing CACs for inclusion in foreign law sovereign bonds. 3 In 2003, building on the ‘Quarles Report’, Mexico launched the first CACs pursuant to New York law. Mexico’s issuance solved the first mover problem, there was no observable pricing impact, and CACs overnight became the norm in the New York market. 4 Importantly, though, the CACs applied only to each individual bond. During this period, the IMF advocated a statutory approach to sovereign debt restructuring. The Fund in essence reasoned that in a domestic setting, all unsecured creditors were bound into the restructuring deal through the bankruptcy process. Since there was no analogous international mechanism to bind similarly placed creditors into the restructuring through a single vote, there was a gap in the global financial architecture that should be filled through the creation of a ‘Sovereign Debt Restructuring Mechanism’ (SDRM). 5 Treasury was sceptical that the SDRM could be made to work in practice. There were concerns about politicization of the mechanism. There were questions about the possible impact on official debt. There was no appetite for pursuing an international agreement that could result in a supranational body having the authority to supplant core US sovereign decision making or judicial authority. There was the basic judgement that there would be little Congressional support for any amendment to the IMF Articles needed to implement SDRM. In contrast, the advent of CACs offered the promise that the contractual framework could be used to better mimic domestic bankruptcy proceedings and bind creditors. In 2012, two important developments occurred, raising questions about the continued viability of the contractual framework to promote the orderliness and predictability of the sovereign debt-restructuring process and giving rise in some quarters to renewed calls for re-consideration of SDRM or statutory approaches more generally. These developments, left unaddressed, also had important implications for New York’s continued role as a major financial centre for the issuance of foreign law bonds. Long-standing debates about the meaning of the ‘ pari passu ’ clause in sovereign law bonds were underscored in judicial rulings. Many sovereign debt lawyers had long felt that the pari passu clause simply meant that the legal ranking of an instrument was equal (and not subordinate) to a borrower’s other debt instruments. Others, for over a decade through a novel interpretation of the clause, contended borrowers could be compelled to pay all of their obligations on a ratable basis. With US federal court rulings in New York supporting the latter interpretation, clearly the meaning of the ‘ pari passu ’ clause could no longer be considered settled. 6 Importantly, these legal challenges were not arising in the context of just one country; rather, there had been a substantial increase in creditor litigation over the past two decades impacting countries across the globe. 7 While bond-by-bond CACs had become the market practice in New York since 2003, the limits of this ‘per series’ approach became clear in the case of the Greek debt exchange. Of the 36 bond issuances governed by English law that included CACs and could partake in the debt exchange, only 17 were successfully restructured using CACs, accounting for 30 of the total value of Greek debt governed by foreign law. 8 In early 2013, against the background of these emerging questions about the ability of the contractual framework to continue delivering orderly and predictable outcomes, as well as renewed interest in statutory approaches, especially in the United Nations, Treasury staff convened a roundtable of governmental and private sector experts and interested parties to discuss potential changes to clauses in sovereign bond contracts. The effort was premised on the US retaining its long-standing reservations about statutory approaches, and instead examining what changes in the ‘ pari passu clause’ and in ‘bond aggregation’ could strengthen and impart renewed vigour to the contractual framework. Equally, the effort was premised on seeking pragmatic, targeted and concrete results, but not engaging in a meta-debate about broad strategic or conceptual approaches. At the outset, Treasury staff made clear that the USA did not support work on statutory approaches. For their part, the IMF representatives also made clear that the Fund had no intention of pursuing work on statutory approaches and it would be regardless infeasible to do so without the full support of the institution’s Executive Board, including major shareholders. At a kick-off meeting in April 2013, on the margins of the IMF/World Bank Spring Meetings, the Roundtable launched into a discussion of the evolution of the sovereign debt-restructuring process over the prior decade, recent ‘ pari passu ’ litigation and its implications and how ‘aggregation clauses’ could be used to help overcome some of the problems posed by bond-by-bond voting and increased creditor litigation. Private sector participants discussed how recent court ‘ pari passu ’ rulings could complicate the sovereign debt-restructuring process and how ‘ pari passu ’ language had taken on many disparate forms in contracts over the years. They were concerned about the consequences of the ‘ratable payments’ interpretation of the pari passu clause for the majority of creditors. With respect to aggregation features, there was a lengthy discussion of the Greek restructuring, and a view that the Greek foreign law bond restructuring was far less successful, because of the bond-by-bond collective action feature, than the Greek domestic law-governed bond restructuring. Some participants advocated developing ideas on aggregation across foreign law sovereign bonds so that there could be one vote to modify an entire series of bonds. However, it was also underscored that developing aggregation features could have important implications for inter-creditor equity considerations. Against this background, a number of key points were agreed at the meeting, in turn charting the path forward for the Roundtable: Modifications to contractual clauses should be developed to address the emerging issues that had complicated the sovereign debt-restructuring process. Clarity was needed on pari passu clauses to dispel confusion and provide legal certainty. The clause should be seen as an ‘equal ranking’ clause; the ‘ratable payments’ interpretation of the clause was not the intended meaning. Aggregation features in bonds, especially aimed at allowing one vote to modify a series of foreign law bonds, could represent a useful innovation to enhance the restructuring process, provided that strong safeguards were also incorporated to protect the rights of all creditors. At a second meeting in October 2013, again on the margins of the semi-annual IMF/World Bank meetings, the Roundtable reconvened to continue its discussions on pari passu clauses and aggregation. The group reviewed an options paper on the ‘ pari passu clause’. 9 In the end, the Roundtable reached several conclusions on the pari passu clause and narrowed down consideration to two of the options, both of which were seen as offering a plausible path forward: There was concern that the clause had resulted in significant litigation over the past decade, complicating the sovereign debt-restructuring process, and that the likelihood was for continued increases in creditor litigation in coming years. Several lawyers in the Roundtable in particular felt that given the confusion raised by the clause over the years and its uncertain meaning, the pari passu clause should be simply eliminated from bond contracts. However, others questioned whether market participants would readily accept elimination of the clause, and thus proposed retaining a rewritten version that disavowed the ratable payments interpretation of the clause. They pointed to market inertia as well as noted that retaining such a modified version of the clause would still protect against the risk of involuntary legal subordination. Participants agreed that the Roundtable needed to come to a consensus on pari passu to provide a basis for market acceptability for a first mover. The discussions on aggregation, in contrast, entered more of an exploratory realm. The Roundtable agreed that a key policy goal of constructing an aggregation framework was to reduce the scope for obtaining blocking positions, provide the sovereign with greater flexibility and at the same time protect against possible abuse or oppression of the minority by sovereigns. While there was wide acceptance of the concept of aggregation in principle, it was also recognized that to achieve these goals, there were numerous design details to be worked out with consequential legal ramifications and an enormous bearing on market acceptability. In wrapping up the second meeting, the Roundtable agreed to further pursue the one-limb option and its requisite features and come to a conclusion on the future of the pari passu clause. The IMF also expressed interest in pursuing further work on the contractual framework, using the Roundtable’s work as a foundation to inform its activities. An initial discussion focused on whether to use a ‘one limb’ aggregated voting structure, or a ‘two limb’ structure with an aggregated and a per series vote. Several European officials supported a ‘two limb’ structure as this approach had already been enshrined in the ESM treaty, developed and adopted within the euro-area. The rest of the Roundtable wished to explore whether a suitable ‘one limb’ framework could be developed, and felt an appropriate aggregation clause could further reduce incentives for creditor litigation. 10 One participant offered the insight that an important feature of a one-limb aggregation structure was that it would lessen the chances that a creditor—that might wish to vote against the proposal, but be willing to accept it should the requisite majority decide to do so—would ‘accidentally’ be kept out of the restructuring. The Roundtable began to delve into the kinds of protections that would be essential to protect against abuse of the minority. Most significantly, the Roundtable agreed that there should be a high voting threshold for one-limb aggregation, and that all participants in an aggregated vote should be treated the same. Participants also agreed that the scope of aggregated debt should be confined to foreign law sovereign bonds, and thus differ from the European CAC framework, which did not differentiate between foreign and domestic law bonds. In discussions in early 2014, including conference calls, and at a third meeting in April, the Roundtable reviewed a model aggregation clause 11 and bore down on achieving concrete results. In wrapping up this meeting, the Roundtable also welcomed ICMA’s proposal to develop model pari passu and aggregation language and conduct a public consultation. 12 To address the question of which pari passu option to pursue and given the view that eliminating the clause might not be seen as acceptable by all market participants, the Roundtable agreed to back model pari passu language that disavowed the ratable payments interpretation. The Roundtable further agreed that aggregation, allowing for a single cross-series vote with strong safeguards, along with a bond-by-bond restructuring option, would help promote the orderliness and predictability of the sovereign debt-restructuring process. With respect to safeguards, it was agreed that: ‘voting thresholds’ should be set at a level which an aggregated cross-series modification vote could only succeed with the support of a large super-majority (ultimately 75 per cent of the eligible outstanding principal); single-limb aggregation would be limited to ‘bonds governed by foreign law’ (outside of the euro-area, which retained its two-limb structure for foreign and domestic bonds); ‘uniform applicability’ would provide for an identical offer requirement for any cross-series vote; ‘robust disenfranchisement provisions’ would exclude bonds controlled by the issuer from the vote; and ‘enhanced transparency and information disclosure’ would be required such that the issuer would need to disclose its overall restructuring plan, including its proposed treatment of other groups of creditors and claims, as part of its offer. In subsequent months, ICMA’s model clauses became the new market standard. The IMF staff proposed to prepare a staff paper for the IMF Executive Board to endorse the key features of the model pari passu and aggregation language. 13 The third and last meeting of the Roundtable was by no means the end of the process. It was critical to develop a strong legal and market consensus behind the new clauses in order for a ‘first mover’ to move without facing market turbulence. Roundtable participants dedicated themselves to this task over the course of the remainder of the an initial and ICMA of proposed model clauses was provided to Roundtable participants for to market participants and their While the of the ICMA model clauses were the same for both the New York and were required to to the of each market. In the of information about the new clauses and their were with leading sovereign debt legal in both New York and Treasury staff also with market In particular, staff with representatives in a series of with of the New emerging market and and also reached out to several London-based Roundtable participants also with debt in potential emerging market sovereign bond issuing especially that had not in the working The IMF an role as The were by IMF staff in a series of and discussions with public debt the basis of a paper in large part by the of the the IMF Board also in the of 2014 the use of modified pari passu clauses in new international sovereign bonds so as to enhance legal and across The Board noted the broad support of for CACs with aggregation features, and in particular considered the limb’ clause with appropriate safeguards along the of forward in the model ICMA clauses as a significant to the sovereign debt-restructuring process. In addition to the IMF the of the market-based contractual framework also the strong of the official The of the G20 Finance and Bank meeting in Cairns, in as well as the G20 Leaders’ in in both the strengthened 16 Most significantly, countries began to sovereign bonds with the new clauses. In particular, Mexico in around the time of the the first public offering with the strengthened CACs under New York in bonds strong and in the in the same leadership as in 2003, the issuance with new CACs the first mover and no pricing impact Mexico’s issuance was by the of its Finance debt in the Around this time, many other countries from of the followed in was the first mover at the global leading the in the market. While the advent of the new CACs a major it not a and work to be to strengthen the contractual framework. The inclusion of new CACs in bonds will address the future of sovereign but it will not address the large outstanding noted by the that and it will 10 years for per cent to This process could be by Some market participants to be possible The of the new CACs so far been strong in the New York which a in which have more of an and been strong but not as but especially for the market. 17 Several issuers have it to thus over or raising in several than the more work and of a new global But in time, such countries will use new the new clauses. already this continue in some quarters about whether the of a restructuring should be through the required use of a structure, including one in which the to a and pay its This was not by the Roundtable, which was focused from the on in two pari passu and Some country representatives, especially at the United Nations, continue to for of a statutory the statutory approach little support in the IMF and and been by the USA and the key in which over of foreign law bond issuance of the new CACs the of the contractual framework and again work on statutory approaches to be needed or in financial policy The recent of CACs through the of the meaning of the pari passu clause and the advent of single-limb aggregation with strong creditor protections a of the of the international financial time and work needed for the new CACs to their full potential in the orderliness and predictability of the sovereign debt-restructuring process. in a of time, the strengthened CACs already a part of the international financial and have the of the contractual framework, the foundation for which was in the early US Treasury staff and a international in which all up their to of new