Showing papers by "Francisco Marcos published in 2006"

Towards a European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door?

Abstract: Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU - building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved. Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement-based on claims for harm inflicted as a result of the anticompetitive behaviour, which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de facto harmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper - foreseen to be adopted around the turn of the year 2007. At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a backdoor harmonisation of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.

Do Developing Countries Need Competition Law and Policy

Abstract: When international institutions (UN, IMF, The World Bank, OECD) evaluate the conditions countries should meet in the road towards economic development and prosperity, the formulation and implementation of an effective competition policy (CP) appears always as one of the major requirements. Besides, in the case of young and developing nations the relevance given to CP is stressed by several specific programmes aimed at helping them in the adoption of competition laws and the establishment of effective competition policies. A considerable amount of resources is committed by international organizations to this end. Looking at some of the experiences of developing countries adopting competition laws in the last few years and also of countries resilient to the establishment of a CP, this paper analyzes whether the efforts of international institutions are justified and evaluates the conditions upon which CP may root. Several prior institutional conditions are needed before the implant of CP may be successful (rule of law, State's commitment to respect a free market economic system). Institutional factors aside, widespread consciousness about the benefits of the market system and acceptance of the merits of free competition in the market by the business community and by the consumers are needed. This paper analyzes all those conditions and stresses the institutional background affecting how CP should be arranged in practice.

The Single National Market as a Constitutional Principle in Spain: Market Fragmentation through Autonomous Regions' Rules and Decisions (in Spanish)

Abstract: When the 1978 Constitution opted for a market economy system as the principal mechanism for distributing goods and services it included other relevant declarations which seemed to imply that the Spanish market was to be a single one.The principle of a single market is a Constitutional Court doctrine against a possible decentralization of government policies as this could lead to the national economic order fragmenting into various markets. This study analyses the implications to be drawn from this principle, assessing its efficacy as a brake on autonomous laws which distort business activity in the national market.

Decentralisation, Regulatory Burden and Economic Development in Spain

Abstract: One of the contributions of the Chicago School to economic theory is that of underlining the importance of compliance costs on entrepreneurial activity and economic growth. From a business perspective, complying with general regulations and administrative red tape is a costly burden that may affect the competitiveness of the economy and the overall efficiency of the system. The main purpose of this paper is to estimate the effect of these compliance costs on Spanish regional economic development. The current situation of the State of the Autonomies in Spain provides a suitable scenario to test some of the main implications of the abovementioned thesis of considering regulation and compliance as costs for businesses. Indeed, the decentralisation of legislative and regulatory competences from the Central Government to the so called Self-governing Communities (Comunidades Autonomas) - which began in the early 1980s and has been progressively developed until these days - has generated a substantial variety of situations that may turn to be useful in empirically evaluating the effect of the exercise of the legislative and regulatory competences by the Self-governing Communities on their regional economic development and business activity. In practice, it is difficult to determine whether Spanish (or any other) authorities regulate in excess or not. The optimum level of regulation is nearly impossible to determine, among other issues, because it depends on the quality of regulation - which is very difficult to evaluate. However, it is possible to estimate the impact of the intensity of normative and regulatory activity of the Self-governing Communities on their regional economic performance. This paper aims to evaluate the evolution of legislative and regulatory decentralisation in Spain and its impact on economic development of the Spanish Self-governing Communities between 1988 and 2005, on the basis of certain objective proxies for legislative and regulatory activity (such as the number of pages published in the several Spanish official journals and legislative collections).

Retailing Regulation and Autonomous Regions in Spain (in Spanish)

Abstract: Retail trade is governed by state, autonomous and local regulations. The 1978 Constitution marked the start of increasing intervention and regulations from the autonomous regions and this has led to greater diversity in these regulations. The Constitutional Court has seen itself obliged to intervene in conflicts related to internal trade between the state and autonomous regions on more than ten occasions and it has drawn up tortuous limits on the regions' regulations for the retail trade as well as for other related areas. Furthermore, this diversity of regional policies has had an impact on economic growth and development in the autonomous regions.

The Implementation into Spanish Law of EU Directive 2005/29/EC on Commercial Unfair Practices (in Spanish)

Abstract: After a brief review of the contents of Directive 2005/29/EC on unfair commercial practices, its implementation into Spanish Law in the light of current Spanish law against unfair competition is analyzed, recommending the more plausible changes required to transpose it into our legal system. The paper examines the political and legislative options available, and its systematics, and the provisions of our current regime of repression of unfair competition that must necessarily be reformed. Finally, it indicates the specific legal rules that rules should be changed and the foundations and scope of their reform.

Comercio minorista y comunidades autónomas

Abstract: El comercio minorista estAi sometido a regulaciA³n estatal, autonA³mica y local. El marco establecido por la ConstituciA³n de 1978 ha llevado a una creciente intervenciA³n y regulaciA³n de las comunidades autA³nomas, dando lugar a una notable diversidad regulatoria en todo el Estado. El Tribunal Constitucional ha debido pronunciarse sobre los conflictos de competencias entre el Estado y las comunidades autA³nomas en materia de comercio interior en mAis de diez casos y ha trazado los lA­mites tortuosos en la regulaciA³n de esta materia y de otras conexas. AdemAis, la diversidad en las polA­ticas autonA³micas tiene un impacto en el crecimiento y desarrollo econA³mico de las respectivas comunidades autA³nomas.