Open Europe blog

The Spanish EU Presidency yesterday decided to shelve a vote on the proposed AIFM Directive on hedge funds and private equity due to "a last-minute intervention by Gordon Brown", according to the FT. The talks apparently stalled on British concerns over the protectionist elements of the Directive, which could see barriers put up to non-EU funds trading in the EU.

We have estimated that the industry contributed €6.1 billion in tax revenues in the UK alone and €9.2bn overall - an amount that could be under threat if a flawed directive is passed. We have also consistently warned that the protectionist provisions entailed in the proposal would cut off offshore managers and funds from the EU market. This will have at least two negative consequences: less choice and value for money for EU investors (including pension funds and charities) and less capital for European firms struggling to rebalance their books in the wake of the economic downturn. Therefore, the British Government's focus on the protectionist dimension is in principle welcome.

The FT reports that Paris "agreed to defer a vote" in order to avoid appearing to inflict "a defeat on Britain". A vote could have been forced on the UK because this Directive will eventually be decided by qualified majority voting. The question is will anything have changed when ministers next look at the Directive in either May or June.

There are also worrying parallels with what happened with the Temporary Agency Workers Directive in 2007. Then, as today, the FT reported that Brown had "personally intervened to defend Britain’s flexible labour market" and delay agreement on the Directive when it looked as though the UK would be outvoted. However, within a year the UK had been out-foxed and was forced to accept the Directive with only minor concessions. In addition, the UK almost lost its separate opt-out from the EU's 48 hour cap on the working week, entailed in the Working Time Directive, as a horsetrading deal involving the two Directives came dangerously close to backfiring at the hands of the European Parliament.

The Government will no doubt portray yesterday as a victory. And although the postponement of the finance ministers' vote on the proposal leaves UK negotiators, the industry, investors and others with some extra room to find allies and bolster the case for a radically amended Directive, today's developments provide no guarantee that this is going to be straightforward. A vote in the Council is now expected at the finance ministers' meeting on May 18th, meaning that for the time being all eyes will be on the European Parliament (whose economic committee will vote on a draft proposal on April 22nd). The key for MEPs is now to resist protectionist urges.

The postponement of the Council vote also adds another dimension to what already is a very complex amendment process. The British general elections will take place on May 6th, meaning that should the Conservatives win, they will be faced with a major showdown in Brussels after less than two weeks in office.

Whether this is a good or a bad thing for the fate of the AIFM Directive depends on a number of factors, including how much energy and political capital a Conservative government considers it can spend on this (the Tory treasury team is not short of challenges as it is); and how willing European partners are to give concessions to a Conservative government early on, in order to secure its future constructive engagement in EU affairs. This, in turn, depends on what a Conservative government is willing to concede in return, i.e. future concessions on agricultural spending, social legislation and so forth. In Brussels, as ever, nothing is free.

One thing is for certain, this is not a good time for the UK government to let its guard down on the AIFM Directive. Indeed, we've been here before.

Labels: AIFM directive, EU regulation, financial regulation

Today, the Lisbon Treaty has been in force for 100 days. The result? A more democratic and open EU? A Union which voters have an easier time understanding and identifying themselves with? Simpler and more 'streamlined' institutions? Not quite.

On it's 100th day in force, the fundamental flaws of the Lisbon Treaty - which many of us warned against - are beginning to hit home around Europe.

Le Figaro has an article in today's edition (not online) bashing the confusing institutional set-up created by Lisbon. The article notes,

Did the authors of the Lisbon Treaty fool themselves? A hundred days after the birth of the 'newly formulated' union, Europe is struggling to make its voice heard, and the confusion – 'cacophony' according to Jose Manuel Barroso – has increased at the top.

The article goes on to say that "the twenty-seven had hoped to end what we in Paris call institutional navel-gazing", but quotes an unnamed Commissioner saying, "The treaty has not simplified life; it has complicated it and wasted a lot of energy”.

Strong stuff. It goes on along the same theme,

Coincidence or not, the disorientating climate idealism at Copenhagen, the withdrawal of Barack Obama from a planned [EU-US] summit and…the attacks against the euro coupled with the collapse of Greece, all add to the gloom.

The double mess-up surrounding Catherine Ashton and the European diplomatic service adds to the disenchantment… In Brussels and beyond, lawyers and diplomats concede that the inventors of the Treaty were mistaken in its institutional mechanics. Even if the EU was at its best, its foreign policy would still be jammed today.

And on Tuesday, FT Deutschland featured an equally critical leader with the headline "Nightmare Lisbon Treaty”. It argued,

Europe has its celebrated Lisbon Treaty, its new constitution. However the Union has not become simpler for outsiders. What an anticlimax. The Member States fought long and hard for the treaty. So many thought that it would allow Europe to reach decisions faster, become more democratic and appear more united to the rest of the world. However, three months after the agreement came into force, the euphoria has evaporated. The EU Commission under Jose Manuel Barroso, the Parliament and the member states are fighting over their powers. This is because the treaty revolves around Brussels - those affected by it are finding this out little by little.

Taking a swipe at German Chancellor Angela Merkel, it noted:

Even as early as the middle of December, Chancellor Angela Merkel was certain that now the EU could concentrate all its efforts on the big, political challenges. 'Instead of being concerned about ourselves, we can now tackle the challenges and problems of our time' said Merkel. This has turned out to be only a pious wish. A new phase of navel-gazing has effectively begun, the institutions are having a go at each other; everyone thought that they would have more influence over Europe....The losers are becoming more and more evident. The Foreign Ministers were the first ones..."

It conluded quoting a "high-ranking member of the Council", saying "A lot of the Ministers fought for the Lisbon Treaty, but did not read it properly."

We rest our case.

The German-led calls for an IMF-style bailout fund for the EU have caught most people on the hop, including the French, and the lack of detail suggests that the practicalities are only now being worked on inside the German Finance Ministry.

French officials have said that there are two fundamental issues still up for debate: whether the European Monetary Fund would cover only the eurozone or all of the EU's 27 member states, and whether the EU treaties should be amended to create the fund. Plainly, there is a long way to go before the EMF gets off the ground and the current debates are highly speculative.

But as far as the first question goes, if the proposed EMF were to include all 27 member states, rather than just the eurozone, this would obviously have significant implications for the UK as British taxpayers would be asked to underwrite other EU governments’ debts. It would also draw the UK into a system of EU 'economic government' that would potentially give the EU greater powers to interfere in monitor the Government's handling of the economy.

For both of these reasons, any UK government is likely to stay well clear of any participation in the EMF.

The second issue, over whether an EMF would require treaty change, is far from clear but there are a few hypothetical scenarios.

Paris appears cautious about any proposal for an EMF that would require treaty change. French Finance Minister Christine Lagarde reportedly said that "Other avenues should be explored" that are in line with the existing Lisbon Treaty. This suggests one of those creative legal EU solutions which confuses everyone (possibly involving the Lisbon Treaty's ratchet clause which allows for amendment of the Treaty without it being considered an actual treaty change).

However, Chancellor Angela Merkel yesterday made it clear that she thought that the creation of a bailout fund would certainly require changes to the EU treaties. "Without treaty changes we can't form such a fund," she said. And given that it would amount to a breach of the current 'no bailout' rules in the treaties, it is hard to argue with her.

Commentators are already suggesting that new EU treaty negotiations would present both Labour and the Conservatives with big problems. Gordon Brown promised MPs that after Lisbon there would not be any institutional changes in the next Parliament:

I can confirm that, not just for this Parliament but also for the next, it is the position of the Government to oppose any further institutional change in the relationship between the EU and its member states. [Hansard, 22 October 2007]

Similarly, the Conservatives announced last year that they would give voters a referendum on future transfers of power to the EU.

However, depending on how this plays out, an EMF that didn't include the UK could actually present the UK with a sizeable bargaining chip, particularly a future Conservative government. Treaty change would require the Government's consent, whether the UK is involved in the EMF or not. In other words, this could be an opporunity for an incoming Conservative government.

The Conservatives have said they want to renegotiate areas of the UK's membership, notably opt-outs from costly EU employment regulation and intrusive justice and home affairs legislation. In addition, an incoming UK Government has a lot of work to do on the EU budget and the single market issues, including financial legislation.

There is possibly a deal to be done here – the Tories could say "if want to go ahead with the EMF and closer economic integration of the eurozone you need to give us something that we want in return." In Cameron's own words, it would be the ideal opportunity to argue and demonstrate "that European integration is not a one way street and that powers can be returned from the EU to its member countries".

The tricky issue is of course that the Conservatives' promised - or at least are now percieved to have promised - that any siginficant treaty change leading to further integration would trigger a referendum in the UK. And the establishment of an EMF would be a big change, as it would create a whole new EU institution and a lender of last resort at the EU-level. This, in turn, is a clear step towards fiscal federalism, regardless of whether the UK takes part.

At the same time, if not involving Britian at all, the argument can be made that it does not involve a transfer of powers from the UK to the EU per se. Indeed, if put in the right context, it could be presented as a method of regaining powers from the EU, by taking the creation of EMF 'hostage' in EU negotiations.

The critics were quick to say that Cameron's policy was unrealistic and undeliverable, but if the proposal for an EMF gains speed he may be presented with an early opportunity to prove them wrong.

If all the pieces fall into place, he should take it.

Labels: Cameron, Conservative Europe policy, economic government, Lisbon Treaty

More news on the eurozone front this weekend as we learned that France and Germany are preparing plans for an IMF-style European Monetary Fund (EMF). German Finance Minister Wolfgang Schäuble has said he will "present proposals soon" for a new eurozone institution that has "comparable powers of intervention" to the International Monetary Fund.

Schäuble has today received backing from his Chancellor, Angela Merkel, who said, the EU's current tools "are not sufficient." She added, "The European Union must be able to respond to the challenges of the moment" and if establishing an EMF required revising the EU treaties it would be a price worth paying becasue "we’re saying we want to solve our problems ourselves."

However, it seems that the German government may meet strong resistance from the German political and economic establishment. Juergen Stark, a German Executive Board Member at the European Central Bank, has chosen to write in tomorrow's edition of Handelsblatt that "Such a mechanism would not be compatible with the principles of the monetary union". He has also warned that "public acceptance of the euro and the European Union would be undermined."

Stark's column argues that establishing an EMF would risk over-politicisation and further increase the eurozone's susceptibility to 'moral hazard' or free-riding from certain member states. "Countries which have not abided by the rules, which profit unilaterally from the euro, without taking their duties seriously, should not be rewarded," he writes.

Given Merkel's obvious unwillingness to sign up to any Greek bailout, such public support for the EMF proposal is a little surprising. Given that Germany would be the biggest contributor to such a fund, surely it amounts to a very similar thing: a German guarantee for the eurozone.

Certainly one to watch...

Labels: bail-out, economic government, emu, euro, germany, Merkel

As riot police today were forced to use tear gas against violent crowds in Athens protesting against further Greek spending cuts to narrow the country's budget deficit (and save the eurozone), we recieved another reminder of German opposition to any cross-border rescue operation.

Travelling to Germany today to meet with German Chancellor Angela Merkel, Greek PM George Papandreou insisted that Greece is not seeking money from the EU. According to Le Monde, German Economic Minister Rainer Brüderle said in response: "Papandreou has said that he doesn't want a cent. In any case, the German government will not give a cent".

Meanwhile, German daily FAZ looks at another obstacle to a Greek bailout: the German Constitutional Court. Based in Karlsruhe, this Court is very much the X-factor in EU integration, as evidenced by the extrordinarily sceptical ruling it delivered on the Lisbon Treaty. Apparently, a spokesperson for Angela Merkel has let it slip that the Chancellor privately fears that a bailout would provoke the country's Constitutional Court to take action, possibly blocking the whole operation. It's article 32 of Germany's "Law on the Federal Constitutional Court" (Gesetz über das Bundesverfassungsgericht) that is the sticking point.

This article says that,

In a dispute the Federal Constitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward off imminent force or for any other important reason for the common weal.

In plain English, a bailout operation of Greece could become Karlsruhe territory. Specifically, the Court could interevene against what it considers a breach of the law - in this case the EU Treaties' ban on bailouts and extending credit lines to other member states.

Former federal judge Paul Kirchhof is quoted by FAZ saying that "If parliaments and MPs feel that their rights have been violated, they can appeal to the Constitutional Court." Based on such an interpretation of Article 32, notes FAZ, the Karlsruhe judges can block Merkel if she decides to help financially.

All of this is speculation of course, but an interesting indication of the forces at work in Germany at the moment - and the massive opposition that a bailout could provoke.

Labels: emu, euro, german court, germany, Greece

The EU's new Taxation Commissioner Algirdas Semeta has announced that he is planning to revive previously shelved plans for an EU-wide carbon tax, aiming to set a minimum levy of €10/tonne of CO2 emitted (although the exact level is a bit unclear) from energy sources such as petrol, coal, and natural gas when they are used as motor and heating fuel, or to produce electricity.

Based on the Commission's previous proposal we've calculated that such a tax would cost the UK economy at least £3.2bn a year. This cost will hit poorer consumers and small businesses disproportionately hard.

Is the cost worth it? Well, a carbon tax can, and has worked in some member states - Sweden being the most conspicous example (the country has cut carbon emissions by 9% since introducing a carbon tax in 1991, while the economy has grown by 48% during the same time period). Unlike the EU's flawed Emissions Trading Scheme, a carbon tax would create a firm price on carbon (although still largely arbitrary) and ensure that polluters have to pay rather than being rewarded. This, in turn, would provide a strong incentive to switch to, and invest in, green energy. If replacing other, poorly targeted, CO2 policies a carbon tax could be the right way to go.

But apart from this discussion, the proposed tax raises two further important issues.

Firstly, why an EU-wide harmonised tax? We must remember that the EU already has all manner of climate change policy instruments playing different tunes. It has an extensive cap-and-trade system for large emitters of CO2, such as power generators and heavy industry. It has heavily prescriptive renewable energy targets and biofuel targets (the latter of which even the Commission now admits might be a mistake). It also has various other environmental regulations restricting emissions such as the Large Combustion Plant Directive, which will force the closure of nine of the UK's power plants by 2015.

Those in favour of an EU-wide tax say that it must be harmonised across Europe in order to avoid 'distortions to the Single market'. However other countries, Sweden for instance, have successfully implemented a domestic carbon tax without any detrimental impact on their economies.

But more importantly, if the stated end goal is not EU tax harmonisation in and of itself but emissions reduction, all that really needs to be decided at an EU level is the extent of the emissions reduction targets. As for the means, who cares? The job of meeting these targets should be left up to member states, who are best equipped to devise a policy mix tailored to their individual circumstances - and when it comes to energy, these are often very diverse.

A carbon tax may be a cost-effective option, or it may not. But it should not be the European Commission's job to decide.

This leads us to the second issue. There are understandable concerns that the Commission has an ulterior motive for its carbon tax. While the current proposal would see member states collecting the revenues from any tax, such "eco taxes" have long been seen by many within the Commission as a way of directly financing the EU budget - a view shared by EU President Herman Van Rompuy.

If such a carbon tax were established, it would clearly create an obvious focal point for those calling for an EU funding stream that bypasses member states' treasuries, with the ultimate aim being a direct tax.

All the more reason to follow a pragmatic approach that concentrates on the stated aim of cutting emissions at the lowest cost to businesses and consumers, rather than creating yet more centralised and complex EU rules that limit member states' ability to tailor climate change policies to their own needs.

Labels: carbon tax, Climate change, energy, environment, ETS

A BBC documentary has revealed that Londoners will not benefit from a "pre-sale" of tickets for the Olympic games thanks to EU competition law, which prevents discrimination in favour of the host country. Despite having swallowed the increases on their council tax since 2006 in order to fund the games, Londoners will apparently have to battle it out with 500 million Europeans for coveted games tickets.

International Olympic Committee President Jacques Rogge has said he is powerless to intervene, but helpfully suggested that the UK's European neighbours, especially France and Germany, would snap up the tickets, ensuring seats were filled.

As London Assembly Member Dee Doocey put it, "it's called European law and there's nothing you can do about it".

Favouring the host nation/side in ticket allocations is a long established principle in all manner of sporting fixtures, but is evidently not a principle that escapes the application of the great clunking fist that is EU competition policy.

Labels: competition policy, EU regulation

Amid gloomy economic news about the state of Greece's public finances and impending austerity measures, former MEP and Greek singing legend Nana Mouskouri has today said she will donate her pension from her time as an MEP (1994-1999) to the public coffers to help Greece tackle its debt crisis.


At around £23,000 a year, it won't bring Greece's debt levels to within the 3% GDP required by the EU's Growth and Stability Pact all on its own, but is a response to calls for wealthy Greeks to contribute more money to the national treasury in the current crisis.


Amid never-ending examples of how the European Parliament wastes taxpayers' money, and MEPs voting for endless increases to their allowances, it's nice to see that not everyone goes to Brussels to climb aboard the gravy train and milk it for all they can get (for those who find it hard to believe see last year's blog piece on Swedish MEP Jens Holm donating his travel expenses to charity).

MEPs have a long, long way to go to arrest citizens' declining faith in the European Parliament, but if more took the same approach as Jens Holm and Nana Mouskouri it would make a start.

Labels: Greece, MEPs

As the eurozone's flaws and weaknesses continue to manifest themselves in the midst of the Greek crisis, the appetite for the euro in Europe's far north is dminishing. In Denmark, the government has been forced to kick a referendum on the country joining the euro into the long-grass, following objections from Danish unions and others over the state of the euro - and in particular the Commission's instant new powers to meddle in negotiations on pay between national social partners (a clear no-go zone for Scandi unions).

And in Sweden, citizens have done a bit of a U-turn: a poll for Swedish Television shows that 50% of Swedes are now against the country joining the eurozone, with 39% in favour and 11% undecided. When the same question was asked in April 2009, 47% were in favour of joining the euro, while 45% were against. Changing sentiments in other words. And who can blame them? The Swedish krona is on the move and more and more commentators are acknowledging that the country has benefited from staying outside the eurozone (benefits which include an annual windfall profit of SEK 30bn from higher exports).

Not everyone is getting with the programme though. The Swedish Liberal People's Party - which forms part of the governing coalition - still says on its website: "Sweden joining the monetary union would eliminate uncertainties and currency risks - and would contribute to more investments, higher income from exports and economic growth."

Right...

Labels: denmark, emu, euro, Sweden

For those of you that didn't know, the European Commission is now in the art business, using taxpayers money to fund various culture projects to promote "greater intercultural dialogue" and various other abstract goals.

Of the projects chosen for funding in 2010, surely the most bizarre is the European Joysticks Orchestra (pictured), which received £50,872 to compose new works, host concerts and train teachers in the “art” of creating music using the computer device.

Click here for a youtube video of the Orchestra's work.

Other projects include "Exchange Radical Moments", which aims to organise an event in 2011 featuring “simultaneously scattered actions, images and interventions [which] will sparkle and ignite like flares across the European landscape, leaving ephemeral but direct and uncensored residue”.

Likewise, the European Laboratory for Hip Hop Dance will net £44,931 of taxpayers’ cash to “improve the recognition and visibility of hip hop dance in Europe” and “encourage connectivity between hip hop artists”.

Now we don't want to be accused of being party-poopers - if people feel that government should be funding cultural projects that is fine. But the problem with the European Commission is that there is no acountability. No one to punish at the ballot box if you feel your money has been spent unwisely.

And quite frankly, judging by the sort of projects the Commission has decided to back, DG Culture is hardly full of budding Charles Saatchis.

Labels: EU culture, EU waste

On his CAP Reform blog Jack Thurston has a story that illustrates one of the many reasons why reforming the EU's wasteful and protectionist farming policies is so difficult. The post centres on Henrik Høegh, Denmark's newly appointed Farming Minister, who is a long-time recipient of EU farming subsidies.

Since 2000, he has received a whopping €604,787.00 from the Common Agricultural Policy and his son and daughter are also thought to be receiving EU cash. Indeed, Høegh is not the only farming minister to have been in receipt of EU subsidies.

In an outright conflict of interest, Mr Høegh is now responsible for signing his own subsidy cheques, but also, as a member of the EU’s Council of Agriculture Ministers, deciding on the future of the CAP.

As Thurston concludes: "With the long-term future of the CAP currently under debate, can the Danish people be confident that Mr Høegh will be pursuing the public interest rather than his own private profits?"

Labels: CAP, conflict of interest, EU reform

EU Foreign Minister Catherine Ashton is absent from the meeting of EU defence ministers in Majorca today - the first to be held since the Lisbon Treaty came into force.

AFP reports that the defence ministers will be considering increased permanent structured co-operation, where several member states can move cooperation on common security and defence policy forward on their own under the terms of the Treaty, with the say-so of only a qualified majority of member states.

However, Lady Ashton has been double booked, and will instead attend the investiture ceremony of the new Ukranian President, missing discussions on how Lisbon will impact on defence cooperation. One EU diplomat said they has been really looking forward to hearing Ashton's views, "Especially as, thanks to the treaty, the opportunity is there to reinforce Europe's defence, to give it more visibility".

Another rather snippy EU diplomat also said, "Her predecessor Javier Solana didn't miss a single meeting of this type with the defence ministers. Something has changed in the order of priorities." Jean Quatremer describes Ashton's "empty-chair policy" as "all the more infuriating" because NATO Secretary-General Anders Fogh Rasmussen is to attend.

Spain, current holder of the EU Presidency, has made relaunching EU defence strategy one of its priorities of its six month term. The Spanish Defence Minister Carme Chacon has said that one of the issues defence ministers are working towards is "progress towards a European armed force; step by step, but that is our objective." She has that objective in common with Germany, whose Foreign Minister said earlier in the month that the creation of a European army should be the long term goal of common security and defence policy.

With various EU defence ministers dreaming of a European army, the US yesterday made more noises about Europe's unwillingness to contribute to NATO, with Defence Secretary Robert Gates saying that the "pacification of Europe" has gone too far and is "an impediment to achieving real security and lasting peace in the 21st [century]", and Secretary of State Hillary Clinton calling for an "honest discussion" of European defence spending.

Ashton's decision to make a ceremonial visit to the Ukraine rather than discuss co-ordinated EU defence policy will not doubt be frustrating for the French and Germans, who have been talking about a Franco-German security policy driving EU defence, but is a telling reminder to the outside world of the EU's preference for pomp and ceremony over dealing with the challenges of the here and now. For one, the US' patience is clearly running out.

Labels: catherine ashton, defence

EUobserver today reports that Swedish Foreign Minister Carl Bildt has written an angry letter to EU Foreign Minister Catherine Ashton demanding to know why Commission President Jose Manuel Barroso has appointed 'his man' as the EU's new ambassador to Washington when, under the Lisbon Treaty, Ashton is meant to be overseeing such appointments.

Ashton is currently in talks with the member states about establishing the EU's new diplomatic corps, the External Action Service (EAS), and Barroso spotted this "transitional" phase as an opportunity to install Joao Vale de Almeida, his former chief of staff, as his eyes and ears in Washington. As one EU diplomat said, "In the future, if the US wants to send a message to the EU, it will go through Almeida because it knows he has a special relationship with Barroso. Ashton will be left out."

As Charlemagne points out, Ashton, who is supposed to serve both national governments and the Commission, has consistently been criticised by member states for being in bed with the Commission and allowing it too much sway over the EU's new foreign policy apparatus. No one can argue that this isn't a significant and symbolic move by Barroso. After all, he didn't send his mate off to one of the EU's various new embassies in Kabul or Addis Ababa but to Washington!

Many have argued that the appointment of the low-profile Ashton as EU Foreign Minister was an attempt by member states to limit the influence that the post would have over national governments. This of course begs the question why create the post in the first place? However, the 'play it safe' appointment of Ashton appears to be backfiring entirely as the Commission sees her weakness as a golden opportunity to increase its influence over the EU's foreign policy - a far greater threat to the institutional balance.

It is tempting to admire Barroso's cunning but it’s also a bit worrying that national governments were powerless to stop him appointing an old mate to such a key position, given the clear conflict of interest.

Incidentally, Carl Bildt is all over the place at the moment. Having been one of the strongest supporters of the Lisbon Treaty he now claims to have always predicted (like some others) that the institutional set-up that it created was destined to fail. "I’ve always questioned whether the construction would work... the post [EU foreign minister] is set up in a way that makes it virtually impossible", he told Swedish daily Dagens Nyheter.

Just goes to show that there's nothing quite like the cold shower of reality to make people come to their senses.

Labels: barroso, catherine ashton, eu foreign minister, Lisbon Treaty

A leader in this week's Economist looks at one of the areas where the EU is rarely criticised: its competition policy.

EU Competition policy can broadly be divided into two main areas.

The first area deals with state aid - it is the job of the EU to prevent member states from subsidising their favorite industries. This task has proven particularly challenging in the crisis , as the Opel-Vauxhall case illustrates.

But that is not what the paper is criticising.

The article deals with the second area of EU Competition policy: fighting cartels, monopolies, and abuses of dominant market positions; and controlling proposed mergers, acquisitions and joint ventures. This area deals with firms rather than states.

The leader argues that “by acting simultaneously as investigator, prosecutor, jury and sentencing judge, the commission is denying defendant firms the basic right to be heard by an impartial tribunal”, adding that “In no other area of law would it be thought acceptable for the outcome of such important cases to be determined by a bunch of politicians.”

Another article notes that the EU’s antitrust case against Microsoft, which resulted in a €1bn fine, revealed that investigators failed to keep record of a meeting with an executive from Dell, raising suspicions that Commission staff overlook potentially exculpatory evidence.

This is indeed extraordinary: Politicians in the European Commission have the power to impose a €1.06 billion fine on a company without proper due process. €1 billion is a lot of money. It is more than the annual net contributions to the EU of countries such as Austria and Denmark.

What's more - and what isn't mentioned in the article - the EU can "hoard" the money it raises in fines by lining its own pockets, as Ashley Fox MEP recently pointed out. He said Competition Commissioner Joaquín Almunia had told him that the fines would be held by the Commission and used as part of the EU budget - and that Almunia had no plans to reform the practice. Fox proposed - quite sensibly - that instead: "Monies raised from anti-competition fines should ideally be returned to those consumers who have paid over the odds for products and services. However, as this would be virtually impossible to implement the best alternative is to return the money to the member states."

Apart from the EU's heavy regulatory burden, if unreformed, EU competition policy might become another factor deterring business from coming to, and staying in, the EU.

Labels: competition policy, EU regulation, Joaquín Almunia

As we never tire of pointing out, the Lisbon Treaty has made sport an EU competence, which means various EU initiatives, decided on by majority voting, in this area are sure to be coming our way soon. The Commission is due to carry out a consultation with member states and relevant organisations in the first half of 2010 regarding the implementation of the Treaty's sports provisions, with the first 'sports programme' expected in 2012.

The UK's Sports Minister Gerry Sutcliffe visited Madrid only this month to meet with his Spanish counterpart to discuss what might be on the agenda for sports regulation this year. Some may remember that in 2008 he managed to resist French plans - launched under its EU Presideny - for an EU-wide 'super' regulator for football, and other sports, which would have seen European football association UEFA able to enforce guidelines on the English Football Association. Then French Sports Minister Bernard Laporte said provocatively that the EU should help address the dominance of English teams in the Champions League.

FIFA was lurking in the background trying to establish its 6+5 rule, which would have made it compulsary to field six domestic players, which would have hamstrung the big English clubs.

However, the UK managed to convince the EU that its free movement rules should apply and the proposal subsequently died a death, although UEFA's watered down 'home-grown' rule was accepted. A spokesman for the Department of Culture, Media and Sport said at the time, "We support the special nature of sport but cannot support block exemption from EU law."

Up to now the European Court of Justice has used EU free movement and competition law to rule on cases concerning professional football, treating it as any other economic activity. In it's Bosman ruling it denied authorities the right to set player quotas by nationality and allowed players the freedom to move clubs for free once their contracts had expired.

However, the introduction of the Lisbon Treaty changes the game. It allows the EU to take into account "the specific nature of sport" and potentially exempt it from the rest of EU law, including free movement and competition provisions laid down under the Single Market. The UEFA President has long argued that football should be treated as its own entity, distinct from EU employment regulation, which would allow him to regulate as he sees fit.

And it seems that UEFA is going to test the current legal ambiguity with a new set of proposals aimed at curbing the spending of Europe's biggest clubs by banning heavily indebted clubs from European competitions. The Premier League will once again be in its sights.

The proposal states that its aim is to "improve the financial fairness in European competitions", which is striking similar to a clause in the Lisbon Treaty that says "promoting fairness and openness in sporting competitions" shall be an objective of the Union.

If the big clubs or the big leagues were to protest against these proposals it will be up for the EU to decide how to interpret the Treaty and the ambiguities outlined above.

The fact that Lisbon formally makes sport an EU competence only serves to strengthen the power of the EU to shape how football will be regulated in the future. The voting rules under Lisbon also mean that the UK is unable to veto EU initiatives in this area, which could prove highly significant.

And in the end, the new rules mean that the UK could be powerless if UEFA has the EU's backing to push its new proposals through.

Labels: football, Lisbon Treaty, sport