Outlook: Discussion of Reform Proposals
01 Jan 2020-pp 517-559
TL;DR: In this article, the authors defend the Commission's use of commitment decisions, arguing that the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also a modest negative impact on legal certainty.
Abstract: So far, the present study has argued that most of the criticism that is levelled at the Commission’s use of commitment decisions is not justified. In the view defended here, the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also only a modest negative impact on legal certainty. It is submitted that these modest shortcomings are, from an abstract point of view, acceptable in view of the consensual nature of commitments and of their underlying goal of procedural economy. This conclusion applies without prejudice to the necessity to balance the respective costs and benefits of Article 7 and Article 9 in each individual case according to the circumstances of the case at hand.
Citations
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TL;DR: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system.
Abstract: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system. This long legislative debate was the first implementation of the Lisbon Treaty in the judicial domain. It has revealed different problems – formal and substantial – of the approach of public service reform in the European institutions.
References
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TL;DR: In this paper, the authors present a clear standard of review focused on agency disability caused by a misalignment of interest or inadequate information in a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup.
Abstract: On November 28, 2011, Judge Jed S. Rakoff of the United States District Court in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoff’s decision has met with serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. This paper attempts to articulate a clear standard of review focused on agency disability caused by a misalignment of interest or inadequate information. The concrete and deferential standard described in this paper would maintain an important gate-keeping function for the court without unduly interfering with agency policy. And a restricted inquiry, focused on conflicts of interest and adequate consideration, is appropriate given the limited institutional competence of the judiciary. The judiciary is not well situated to evaluate the terms of a settlement, which is the product of a complex balancing of agency priorities and is informed by the agency’s overall strategy and policy objectives. It is difficult to see what advantages a judge with a heavy caseload can add to a deal brokered by an agency staff charged solely with promoting the public interest in a particular area. By contrast, judges can be alert to conflicts of interest, as they are in other areas of the law. When evaluating an agency’s structure and information, the reviewing judge is not at an informational disadvantage relative to the parties. As a result, the court can determine whether the agency is properly accounting for social costs and benefits, and can ensure that the agency is not ignoring an important third party interest. Absent any indication of conflict or structural impairment, and given a reasonable justification for the settlement, the judge need not scrutinize the merits of the settlement and incur the costs of judicial review.
3 citations
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01 Nov 2010
TL;DR: The impact of the principle of proportionality as regards Commitment Decisions in this paper has been discussed in detail in the context of the Alrosa judgment, where it was argued that the Commission should not be required itself to seek for less onerous alternatives to the commitments offered to it.
Abstract: The Impact of the Principle of Proportionality as regards Commitment Decisions pursuant to Article 9 of Regulation 1/2003 ... Comment on the judgment of the European Court of Justice of June 29th, 2010 in Case C-441/07 P ... Commission/Alrosa Company In the Alrosa judgment the ECJ ruled that when adopting a decision pursuant to Article 9 of Reg. 1/2003, compliance with the principle of proportionality requires the Commission only to ascertain that those commitments address the concerns it has identified and expressed to the undertakings. Whether the commitments are also necessary to address those concerns is only of importance when the undertakings have offered alternative commitments. Only in this case the Commission has to assess whether these alternatively offered commitments are less onerous. The Commission, however, is not required to seek itself for lees onerous alternatives. With regard to the fact that Article 9 of Reg. 1/2003 is characterized by a concern for procedural economy the author agrees with the ruling that the Commission should not be required itself to seek for less onerous alternatives to the commitments offered to it. However neither the wording nor the purpose of Article 9 of Reg. 1/2003 requires to constrain the assessment as regards the necessity of commitments only to alternatively offered commitments. It is the authors view that especially the interests of third parties would be better served if the Commission would be required to assess the necessity of commitments also with regard to such alternatives, which come to mind without further ado or which have been brought to the Commissions attention during the market test pursuant to Article 27 (4) of Reg. 1/2003. In this regard the author fully agrees with the opinion of the Advocate General. He however argues, that as regards the necessity of commitments ... in contrast to the opinion of the Advocate General ... no distinction should be drawn according to whether only the interests of the undertaking which has offered the commitments are affected or the interests of third parties.
2 citations
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01 Mar 2016
TL;DR: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system as mentioned in this paper.
Abstract: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system. This long legislative debate was the first implementation of the Lisbon Treaty in the judicial domain. It has revealed different problems – formal and substantial – of the approach of public service reform in the European institutions.
2 citations
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