The article is concerned with subsidiarity in Directive 2014/104 EU on actions for antitrust damages. After providing an overview of private enforcement of competition law and subsidiarity in EU law, it examines the arguments presented by the Commission in the relevant Impact Assessments. While most of the arguments were based on the need to prevent adverse cross-border effects, of particular interest was the argument that Member States were slow or unresponsive in providing effective measures designed to compensate antitrust victims. Subsequently, it shows that the Commission’s assessment of the underlying problems was discretionary and played a pivotal role before the considerations on subsidiarity were made. On this basis, this article makes the case for subsidiarity to be understood as Member States’ constructive engagement in EU action, rather than constraint on EU action.
The Commission evaluation of EU policies has become an important practice for the review of EU rules. This article is a case study of the 2016 evaluation of the remuneration rules applicable to financial executives (Directive No 2013/36 – CRD IV), which led to their amendments made by Directive 2019/878. These amendments have been negligible and despite the efforts of private interest groups operating in the financial sector, the so-called bonus cap has been maintained. This article explores the dynamics amongst the actors involved in the evaluation of the remuneration policy (Commission, European Banking Authority, and stakeholders) and provides an account of the factors that shaped such evaluation. This paper argues that the influence of private interest groups was limited. Although the bonus cap is a contested policy, and the evidence of its impact ambiguous, it still enjoys legitimacy.
Financial executives’ remuneration policy, CRD IV Bonus Cap, Commission evaluation, Amendments of Directive No 2019/878.
This article discusses the EU General Court’s Google Shopping judgment (Case T-612/17), which deals with online self-preferencing. Self-preferencing is a novel abuse of dominant position (Article 102 TFEU), which consists of the prominent display and positioning of the dominant undertaking’s own service (comparison shopping service in this case), and demotion of the competitors’ services, on webpages generated by the dominant undertaking’s general search services. The key-principles in the legal reasoning of the General Court’s ruling were the prohibition of discrimination and coterminous concepts such as ‘equal opportunities to compete’ and ‘competition on the merits’. The differential treatment between Google’s own service and those of its competitors derived from Google’s subjection of its adjustment algorithms only to its competitors and not to its own service. While an approach based on non-discrimination is contentious, on the other hand Google’s conduct was neither efficient nor did it benefit consumers. The article also examines the EU Digital Markets Act’s prohibition of self-preferencing and its relationship with the Google Shopping ruling.
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