Month: July 2016

Sanctions to the anti-trust behaviour: the rethinking

On By officialblogunioIn EssaysLeave a comment

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho
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It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

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Brexit and the European Football Market: The Consequences for the Premier League and the British Players

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho
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The results of the referendum held in Great Britain on the 23rd of June of 2016 shall certainly change the course of history. On this day “Brexit” trumped “Bremain” by 52% against 48% with a turnout of about 72%. And while the results of the referendum are not binding it does seem that the British government plans to respect the will of the voters.

Leaving the EU will affect not only the economy but every single aspect of the lives of the British people, including sports. The British love sports, mainly football, and Britain, more precisely England has one of most competitive football leagues in the world: the Premier League. Nigel Farage a top UK politician and one of the most prominent leave supporters said in April:

“What this referendum is about is taking back control of our lives, our laws and our borders”.

However, we must ask ourselves what are the consequences of “taking back our laws and borders” for the Premier League?

Farage is a supporter of Crystal Palace, whose team is composed of 32 players, and 12 of those players are not British. Manchester United, the winner of the FA Cup, regularly plays with 7 non-British players on its line-up even if in total it has more than 50% British players on its roster. How will the Premier League survive after Brexit? Will its teams agree with Farage’s statement “outside of this single market we will be better off” (here)?
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The Regulation on EU trade mark

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by Maria Miguel Carvalho, Collaborating Member of CEDU

 

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The creation of a community trade mark law by Regulation (EC) n. 40/94, of 20 December 1993, in parallel with the protection that trade marks can benefit from at the national level, achieved a massive success as over 100.000 community marks were registered per year. This success was enhanced because their acquisition by any person (natural or legal, including public entities) through a single registration procedure before the OHIM was allowed as well as it assured a uniform protection and produced the same effects in all European Economic Area.

However, after more than 20 years of its approval, and notwithstanding the entry into force of Regulation (CE) n. 207/2009, of 26 February 2009, on the Community trade mark (TMR), which repealed the first one, a reform was needed in order to make the register system more accessible and efficient to the companies – reducing costs and complexity and raising rapidness and legal certainty. Such changes took place with the approval of Regulation (EU) 2015/2424 of the European Parliament and the Council, of 16 December 2015.

This Regulation constitutes – in line with the Directive (EU) 2015/2436, of the European Parliament and the Council, of 16 December 2016 – the largest and most important alteration to the European trade mark system, having significantly modified the Regulation (EC) n. 207/2009, of 26 February 2009.

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“Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty

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by Professor Alessandra Silveira, Editor
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Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.

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Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?

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by Joana Covelo de Abreu, Junior Editor
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  1. The dispute in the main proceedings

Pebros Servizi sued before an Italian national court several companies and, among them, we could find Aston Martin. However, the latter was duly noticed to present itself in court allowing it to participate in those proceedings, what did not happen. Aston Martin was condemned in absentia to pay to Pebros Servizi the total amount of 18.000,00€ “together with interest at the statutory rate running from the publication of the judgment until payment in full and the legal costs, comprising EUR 835 for sundry expenses and EUR 9 500 for professional fees, plus VAT and other incidental social security expenses under national law”[i].

Aston Martin did not present any appeal and that judgement became final.

On October 2014, Pebros Servizi asked that Italian court to certify that decision as a European enforcement order. However, that court expressed its doubts concerning using Regulation 805/2004 enforcement order in such a case. Those doubts derived from the fact that, in Italian law, a judgment made in default of the defendant does not mean the latter recognises the facts brought against him in the litigation. So, national court had doubts if “a judgment in default [might] be regarded as a judgment for an uncontested claim”[ii]. In this sense, national court called upon two doctrinal positions: 1) One, based on national law, where a default procedure does not amount for an uncontested claim; 2) Another, where “that concept of ‘absence of contestation’ is defined autonomously by EU law and covers also a failure to appear during proceedings”[iii].

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Conference and call for papers

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In 2016 Portugal celebrates 40 years of its Constitution and 30 years of accession to the European Union. In order to join the commemorations and to debate those landmarks, the Centre of Studies in EU Law (CEDU) of University of Minho alongside the Representation of the European Parliament in Portugal distinguish the milestones by promoting the conference “40/30: from the constitutional project to the integration project – hopes, scepticism and reality in a political-constitutional debate” which will be held at the Law School of UMinho on 28th October 2016. The organizers’ partnership intends to perceive the path made upon these 40 years of Portuguese Constitution, 30 of which in interaction with the European project: what was meant originally has or has not been accomplished? Which adaptations, where has it lead us, where are we headed?, questions asked in an intergenerational perspective and in dialogue between scholars and MEPs.

Accompanying the conference, UNIO – EU Law Journal of CEDU issues this call for papers on the theme of the event seeking contributions from EU Law, Constitutional Law, International Law, Political Sciences, etc. for a special edition. The submissions are open until 1st of October.

The Editors and the Board encourage submissions and remind that the editorial policies and processes of UNIO apply.

The conference program will soon be made fully available.

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