In EU competition law, presumptions are widely used for reasons of efficiency. However, the legal mechanism for the establishment and application of presumptions in the case law of the Court of Justice of the European Union may not always support efficiency. Instead, the fact that CJEU not only considers the systematic concept of presumptions per se, but also takes into account the full effect of EU law and any directly applicable general legal principles renders the establishment and the application of presumptions unpredictable and sometimes inconsistent. This phenomenon owes largely to the CJEU's contextual approach in interpreting EU law and the fragmentary nature of this approach. To have a better understanding of this phenomenon, this article first explores the operation of presumptions in EU competition law; second, through concrete examples, it examines the Court's approach to establishing and applying the presumptions; third, it identifies the potential impacts of the Court's contextual approach on the enforcement of EU competition law. The article seeks to demonstrate that the Court's interventions in presumption-related issues have blurred the boundary between substantive and procedural law, and thus risk narrowing the principle of national procedural autonomy. The Court's approach also presents challenges for the current system of decentralised enforcement of EU competition law by national courts.
Purpose
This paper aims to question the “conventional” privatization of State-owned enterprises (SOEs) and to propose the neutral position adopted by the Dispute Settlement Body (DSB) to reconcile the divergent views within the World Trade Organization (WTO) regime.
Design/methodology/approach
China’s partially privatized SOEs have raised numerous attention in WTO disputes regarding whether China's way of social and economic reform is consistent with its accession commitments and with WTO rules, in particular subsidy rules. Instead of providing a definite legal standard applicable to the “public body” enquiry, the DSB adopts the neutral position to reconcile the divergent views between developed and developing countries on whether not fully privatized SOEs constitute “public body.”
Findings
Albeit with interpretative vagueness, the value of DSB’s neutral position lies in its adequacy: first, the adequacy to address the complexity of SOE privatizations in developing countries; second, the adequacy to engage relevant parties to maintain the multilateral trading system; and third, not to impose specific impact on justification of countervailing duties.
Originality/value
This paper captures the recent developments in “public body” enquiry and calls for a compromised approach to maintain the WTO-like multilateral trade regime and to allow for more policy spaces for developing countries that best fit their unique circumstances and needs. It sees new and significant information, in the sense that the paper aims to present why China’s partial privatization benefits from the WTO “neutrality” on the subject.
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