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Départements : Droit et fiscalité, GREGHEC (CNRS)

This study assesses the legal feasibility of a EU instrument that would impose mandatory human rights due diligence (“HRDD”) requirements on companies in the garment and textile sector. The proposal serves as an example of a sector-specific approach to HRDD requirements, and could be modified to develop similar proposals in other sectors. The study also illustrates the differences between a sector-specific and a cross-sectoral approach by highlighting the implications of each in the following areas: legal bases, personal scope, and requirements and enforcement.

Mots clés : business and human rights, EU law, corporations, corporate responsibility, human rights due diligence


Départements : Droit et fiscalité, GREGHEC (CNRS)

This Memorandum to the European Commission presents our professional opinion on the legal and ethical issues arising from the appointment of the former President of the European Commission Jose Manuel Barroso as non-executive chairman and director of Goldman Sachs. We identify a number of flaws of the Opinion of the Ad Hoc Ethical Committee which considered the issue and offer our own analysis of applicable law and the action the Commission is required to take. In our view, the Opinion represents a case of maladministration, on the ground of which it should have been set aside by the Commission in unequivocal terms. On our own analysis, Mr. Barroso’s acceptance of his new appointment was ethically inappropriate and, therefore, a violation of TFEU. Further we argue that the Commission has powers to take remedial action and is legally obliged to act to enforce the EU law and to protect the interests of the EU and its reputation. We show that, contrary to most comments in the media, the expiry of the eighteen months ‘cooling-off’ period does not put Mr. Barroso on the right side of the law, and does not preclude the obligation of the Commission to take remedial action.

Mots clés : Barroso; Barrosogate; Ad Hoc Ethical Committee; European Commission; European Union


Départements : Droit et fiscalité, GREGHEC (CNRS)

The 2015 reform of the EU’s court system will go down in history as the most radical transformation of the EU judicial architecture since the establishment of the General Court in 1989. It doubles the number of General Court judges but also dissolves the Civil Service Tribunal. This article offers a critical assessment of these two major, structural changes, addressing both the process by which they were adopted and their overall merits. After providing a detailed examination of the reform’s tortuous legislative history and highlighting its unique underlying procedural feature – with the Court itself initiating the process – this article identifies and systematizes its major shortcomings. It criticizes the underlying diagnosis and the cure administered. It concludes by presenting this reform process as a missed opportunity to address, in a more holistic manner, the pressing non-docket related challenges facing the EU judicial system, in particular, to reform a governance structure which is no longer fit for purpose considering the massive transformation of the EU judicial branch since 1951

Mots clés : Judicial Governance, Openness, Transparency, Legitimacy, Accountability, European Union, Good Governance


Départements : Droit et fiscalité, GREGHEC (CNRS)

Scotland is the first jurisdiction in the world to introduce a minimum price per unit of alcohol to reduce consumption. The relevant industry did not hesitate to challenge this new alcohol control policy before courts. The ensuing judgment contains a wealth of insights stemming from regulatory autonomy to proportionality review. What is the role of a national court in the review of national measures restricting free movement? In particular, how should it review the proportionality of those measures when adopted on public health grounds, and on the basis of what evidence? What is the burden of proof that the relevant Member State must discharge? Those are essentially the questions referred by a Scottish court to the Court of Justice when called upon to determine the compatibility with EU law of Minimum Unit Prices for alcohol introduced by the Scottish Government. Although rather recurrent in the Court’s free movement case law, the question of the standard of review, and corresponding burden of proof epitomises the struggle currently faced by national courts in striking the right balance between the proper functioning of the market and due recognition and protection of national regulatory autonomy. As such, this preliminary reference offered an opportunity to address “the information gap on what the Court of Justice expects defendant States to establish” in order to justify their measures under the proportionality stages of free movement analysis. But there is more. This case also raises deeper epistemic and methodological questions faced by any court of law when asked to review the proportionality, and in particular the necessity, of an individual policy intervention that belongs to a wider ‘political strategy’. Indeed, those strategies – as exemplified in the present case by the Scottish policy designed to combat the devastating effects of alcohol – generally entail the enactment of a full ‘regulatory mix’ of policy interventions. In those circumstances, how can we pinpoint the effect of a given policy option when it is part of a set of measures? How can we distinguish the effect, in terms of health gains deriving from a drop in alcohol consumption, to be ascribed to the introduction of MUP when such a measure coexists with other measures (more than 40 in Scotland) that have been introduced? And what when the contested measure has never been tested before? While this judgment confirms the gradual empirical turn made by the Court in its own review of the proportionality of national restrictive measures, it also provides some pragmatic guidance on how national courts may realistically engage in that review. Given the growing number of Member States ready to experiment with new policies aimed at tackling inter alia lifestyle risk factors, such as tobacco use, harmful consumption of alcohol and unhealthy diets, this appears as welcome development. Ultimately, the ensuing number of national restrictive measures of trade enacted on public health grounds, such as the UK standardised packaging for cigarettes, its sugar tax or the Hungarian ‘fat tax’, is set to put to test the Court’s approach towards both the qualification of those measures as restrictions and their justification under EU law.

Mots clés : EU law, proportionality, tax, minimum unit pricing, alcohol, lifestyle, NCD, precautionary principle, risk regulation, judicial review


Départements : Droit et fiscalité, GREGHEC (CNRS)

One of the major merits of the TTIP leaks has been to highlight the underlying information asymmetry characterising the on-going TTIP negotiations. By systematically releasing its position papers before each negotiation, the EU actual disclosure policy contributes to a permanent yet overlooked information imbalance between the EU and its trading partner(s). The ensuing asymmetry does not only alter the overall negotiating environment, but also how the media, academics, and, in turn, the public actually perceive it. Moreover, it generates many other information asymmetries within the EU itself: that between the negotiators and the elected representatives, that between corporate and civil society interest groups, and eventually between the ‘TTIP circus’ and the general public. If the negotiators themselves have hijacked the rhetoric of fact-checking, academics have not yet had their chance to contribute to the discussion. As a result, only the EU positions have been studied, criticized and closely debated, with the US negotiating positions remaining largely a mystery. After briefly presenting the how’s of the TTIP leaks, this opening piece examines the what’s and why’s behind this unprecedented revelation of negotiating texts. It is against this backdrop that the other contributors to this symposium explore which are the most immediate consequences of the TTIP leaks on the on-going negotiations and future agreement.


Départements : Droit et fiscalité, GREGHEC (CNRS)

Beyond Networks critically dissects and systematizes an insightful, well-researched and elegantly written account of the democratic potential carried out by coalitions of civil society actors. Once established a case for studying coalitions of civil society organization through the lens of Global Administrative Law, the book eventually unveils its underlying research question. This volume specifically attempts to explain how civil society networks – which are studied within the broader notion of Global Civil Society (GSC) – drive the development of principles of democratic value at the supranational level. It does so within the broader debate about new modes of global governance and in particular that of experimentalist governance. It proceeds to theorize an autonomous organization network model within GSC: the so-called 'interlocutory coalitions'. Those coalitions are typically made of diverse category of entities whose major – sometimes solely – common feature is the cross-border pursuit of a common cause. In order to build an original and valuable taxonomy of civil society networks, interlocutory coalitions must be contrasted to other forms of networks, including social networks, trans-governmental committees, think tanks, Parallel Summits and QUANGOs. After reconstructing their respective composition, membership, rules of governance and legal status, the book delves into interlocutory coalitions' decision-making. How do coalitions presenting high degree of variation when it comes to their mission, governance, funding and membership coalesce around one common cause? How do they come to existence and get along? How can such coalitions speak with one voice when representing and advocating their common position in front of the relevant international organizations? What kind of techniques and deliberative mechanisms are used to attain a common position and then convey it to the outside world? This book provides a rigorous, constructive and promising stepping stone to embark on such a challenging journey. Yet the case for a global participatory democracy remains to be made.

Mots clés : Open government, Transparency, Participation, Civic empowerment, Coalitions, Legitimacy, Accountability, Civil society, European Union, Good governance


Départements : Droit et fiscalité, GREGHEC (CNRS)

Emboldened by the Spitzenkandidaten process, the new European Commission emerges as the most political yet. The Commission asks EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. The Better Regulation Package translates this political commitment into an actionable approach assuring EU citizens that the Commission will remain ‘big on big things, small on small things’. To deliver on this promise, the Commission extends the Impact Assessment system, renews its consultation procedures and adds a few institutional mechanisms so as to enhance its ‘ability to deliver’ throughout the policy cycle. But in order to do so the Commission needs to bind – and somehow control – the European Parliament and the Council, on the one hand, and the Member States, on the other, in relation to their commitment to openness, participation and evidence-based policymaking. While legitimate, this attempt raises serious doubts about the compatibility of this reform with the principle of separation of powers and, in particular, that of institutional balance. A closer look at the Better Regulation Package reveals an entirely new understanding of the Commission’s own prerogatives and the way it intends to exercise its legislative and regulatory powers. And this in spite of the apparent continuity between the new and old Better Regulation initiatives and the instruments it had chosen to attain the declared objectives. With a view to lay out a future research agenda on EU Better Regulation, this article identifies the most immediate questions raised by the publication of the Package and makes a first timid attempt at addressing some of them. It aims at determining how much better, if any, is the new Better Regulation Package. It does so by discussing, first, the major novelties enacted by the Commission within its own Better Regulation system and, second, those proposed in the framework of the Interinstitutional Agreement on Better Regulation.

Mots clés : Regulatory reform, Better Regulation, Regulatory Scrutiny Board, Impact Assessment, REFIT, CBA, comparative institutional analysis, trilogues, trialogues, TTIP


Départements : Droit et fiscalité, GREGHEC (CNRS)

This paper advocates for the adoption of freedom of panorama in the European Union. The term “freedom of panorama” (FoP) refers to an unconditional copyright exception vis-à-vis works of architecture and sculpture placed permanently in public places. The current lack of uniformity with respect to copyright exceptions at the EU level has proven problematic to end-users, service providers and other intermediaries. It has also frustrated the ultimate goal of promoting a single internal market throughout Europe, and safeguarding freedom of expression and free movement of services throughout the EU.The current system does not harmonize copyright exceptions throughout the EU. Rather, each Member State is free to adopt copyright exceptions as it sees fit. The result is a heavily fragmented system that leaves businesses and users with the necessity to individually deal with each Member State and rights holder concerned. A mandatory exception for FoP would play a key role in guaranteeing freedom of expression, access to education and the free movement of digital services in the internal single market.FoP is critical for ensuring freedom of expression and access to education. Additionally, the growth of net companies that rely on user generated conduct (UGC), such as through YouTube, Wikipedia and blogs, has led to the constant fear among most EU citizens of violating copyright law. This reiterates the need for a FoP exception that covers both commercial and non-commercial uses. Furthermore, many new cross-border educational initiatives in Europe do not fall within the “non-commercial educational and scientific research purposes” exempted under the current InfoSoc Directive. Some national systems that broadly extend the education exception to uses that fall outside the “non-commercial” definition do not extend the exception to online uses.The EU Copyright Directive should be re-written to include a mandatory FoP provision, as is already the case in the national law of EU Member States such as the United Kingdom and Germany, as well as third countries like Brazil. This solution would also comply with copyright-protective countries’ call – among them Italy, Spain and France – for such an exhaustive list. This solution would provide clear direction to Member States without becoming an overly lengthy and unwieldy document.Several problems remain with this approach. First, there has been reticence on the part of the European Court of Human Rights to protect FoP from a freedom of expression standpoint when the images’ use was commercial. Second, there is the possibility for Member States to use trademark law, cultural heritage law, or other national laws to get around a mandatory FoP exception. The uses of trademark and cultural heritage law do not pose a significant barrier to a mandatory FoP exception at present. However, the reforms ultimately decided upon must take into account the possibility of the use of this law to frustrate the Directive’s objectives.The HEC-NYU EU Public Interest Clinic (the “Clinic”) presents its justifications for a mandatory FoP exception below. We also include an annex and model legislation that addresses many of the deficiencies of current EU law


Départements : Droit et fiscalité, GREGHEC (CNRS)

Nudge and the Law explores the legal implications of the emergent phenomenon of behaviourally informed intervention. It focuses on the challenges and opportunities it may offer to the policymaking of the European Union. This dual focus on law and on Europe characterises our endeavour. This volume has been structured by taking as a point of the departure the current nudging debate, which mainly comprises two strands of enquiry: when is it legitimate for States to use psychology to inform policy? (the legitimacy debate) and, to the extent that it is legitimate, how can behavioural insights in practice be incorporated into the decision making processes? (the practicability debate). Against this backdrop we brought together scholars who could analyse what behavioural insights might bring to EU law, both at a horizontal level and at a sectoral level. This volume endeavours to present the results of their research in a manner that is accessible both to EU law specialists who are not yet familiar with behavioural sciences and to behavioural lawyers who are not specialists in EU law.

Mots clés : EU Law, behavioural sciences, nudges, regulation, libertarian paternalism, regulatory policy, policymaking, behavioural policy, impact assessment, randomized control trials


Départements : Droit et fiscalité, GREGHEC (CNRS)

At a time in which behavioural science has gained increasing attention for the design of population-wide health interventions, this chapter discusses its potential contributions to the prevention and control of Non-Communicable-Diseases (NCDs). Given the largely preventable nature of NCDs, any lifestyle intervention faces the challenge to induce behavioural change. By highlighting the role of social and physical environments in shaping our behaviour, applied behavioural science provides policymakers with a new understanding of human decision-making and, as a result, may support an innovative approach to the promotion of behaviour change leading to healthier lives. While only a combination of policy instruments, such as legislation, regulation, and even financial and fiscal incentives, may induce behaviour change to the scale required to reduce the burden of chronic disease at the population level, a behavioural informed approach may valuably complement the current regulatory mix. In particular, an analysis of the WHO NCD Action Plan and its accompanying strategies suggests an increased awareness of the roles played by environmental and social factors on behaviour change. Although the language employed falls short of operationalizing the major behavioural insights into the NCD agenda, it clearly highlights that their integration into the current regulatory mix appears fundamental today for the design of any lifestyle policy intervention. As behavioural change is progressively becoming the focus of health promotion efforts, the lesson learned is that there is more to behaviour change than merely empowering the targeted individuals, communities and populations with the necessary information.

Mots clés : Health law, NCD, WHO, Nudge, Libertarian Paternalism, Behavioral change, Lifestyle, Regulation


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