Parental Liability in EU Competition Law: The House Always Wins

This article discusses parental liability in EU competition law. Ten years on from the landmark ruling in Akzo Nobel which confirmed the rebuttable presumption of decisive influence in the case of a wholly owned subsidiary, a significant number of EU cases have helped clarify the application of this controversial rule. Yet, complexities and uncertainties remain, as illustrated by the Sumal case, in which the Court of Justice recently received a preliminary reference on 3 December 2019 regarding whether a non-participating subsidiary could incur liability for the infringement of its parent company. Although the Irish Courts have yet to substantively consider liability based on the EU competition law notion of an ‘undertaking’, recent developments suggest that this may soon change. As a result of Court of Justice rulings in 2019 such as Skanska and Tibor-Trans, the implementation of the Damages Directive and the General Data Protection Regulation (GDPR), Irish Courts are more likely to deal with cases involving parental liability over the coming years.

Gun-Jumping in European Merger Control Law: The Law and Practice

This article considers the law and practice relating to “gun-jumping” in EU merger or concentration control. It considers (a) the failure to notify concentrations to the European Commission and (b) the improper implementation of the transactions before Commission clearance. The article describes the legislation and then traces the evolution of the case law. It also advocates the need for further analysis aimed at (a) seeking to bring precision to the circumstances in which notification is necessary, (b) giving more exact guidance about what constitutes proper and improper implementation and (c) focusing on whether the level of Commission fines for gun-jumping is appropriate in all the circumstances.

Extradition through the Lens of Brexit

This paper considers the impact of Brexit on extradition, with particular reference to the UK-Ireland extradition relationship, and the UK’s post-Brexit extradition prospects. Reflecting on the evolution of the culture of extradition between Ireland and the UK offers a more nuanced understanding of the dynamics at stake. CJEU perspectives on challenges to the execution of arrest warrants on human rights grounds, in the context of Brexit, and political moves in renegotiating extradition, will be fundamental to the development and success of future arrangements. This paper argues that future UK-Ireland extradition need not be a crisis scenario, if strong efforts are made to mitigate risks. All future post-Brexit options involve elements of regression from the existing EAW framework – drawbacks which are already playing out during transition. It is imperative that judicial and political authorities involved in post-Brexit extradition are pragmatic when discharging duties, and overcoming the problems likely to arise, on whatever basis future extradition arrangements take shape.

European Higher Education: The Legal Foundations of the Bologna Process

Twenty years have elapsed since European states launched the Bologna Process for cooperation and harmonisation in the area of European higher education. This article explores the legal framework for the Bologna Process and the preference for soft law mechanisms over more formal legal instruments. The discussion considers the strengths and weaknesses of this approach to standard setting and compliance and reflects on some of the broader implications for transparency and accountability of state action in European higher education.

When Worlds Collide: the CJEU and International Law

This article traces the trajectory of the CJEU’s approach to international law over the years, with a focus on its case-law following the significant Treaty changes made in 2009 by the Lisbon Treaty, strengthening the special status given to international law by the EU legal order. It argues that, following the CJEU’s Kadi judgment – in which it famously held that, in case of conflict between EU fundamental rights and international law, the EU legal order must prevail – the CJEU has now entered a “post-Kadi” phrase characterized by a re-emphasis on its firm belief in international law. The article argues that the CJEU’s post-Kadi approach is supported by the Lisbon Treaty’s changes but also, as discussed below, raises potential questions as to which court should be the ultimate arbiter of the requirements of international law.

Acquisition and Loss of Nationality: Irish and European Perspectives

Legal questions relating to the acquisition and loss of nationality and citizenship are very much a modern-day judicial concern. This article, which is based on the 2019 Annual Brian Walsh Lecture, explores how the two European courts have thus far broached questions relating to nationality and citizenship. It examines, firstly, whether the legal approach and philosophy of the Strasbourg and Luxembourg courts in relation to questions of nationality, citizenship, allegiance and integration are similar or distinct. Secondly, as those courts have engaged increasingly in recent years with a domain which was previously considered part of States’ sovereign reserve, the article contrasts how different national competent authorities and courts, in Ireland and other EU Member States, have reacted. Thirdly, the article suggests that the interaction between European and national courts in a field such as this provides a basis for us to reflect more generally in the years to come about the manner in which our national courts seek to engage with and influence the development of European law, writ large, and with the two European courts whose job it is to interpret that law.

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