Samenvattingen Technische Bedrijfskunde. International Law

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1 Samenvattingen Technische Bedrijfskunde International Law Met dank aan het bestuur van S.V. Scopus Gemaakt door: Bart Wolthers Datum: Let op: S.V. Scopus is niet aansprakelijk voor mogelijke inhoudelijk en typ fouten. Echter streven wij wel naar een zo correct mogelijke samenvatting. Deze samenvatting is ter ondersteuning voor de lesstof en is daardoor niet leidend. Distributie van dit document, gratis alsmede tegen betaling, is niet toegestaan.

2 International Law Chapter 1 Introduction International Law = International Public Law + International Private Law International Law: Law agreed by two or more states and is applicable to those states and in most cases their nationals. I.o.w. international law consists of rules and principles, which govern the relations of nations with each other. International Private Law: Law which deals with legal problems arising from legal relationships between parties domiciled in different countries to which different legal systems apply. - Between 2 companies in different countries - No government If the legal conflict only involves two parties living in the same country, there can be no choice over which legal system to use. Treaty: National agreement (formal agreement) between 2 or more states. Tort: a civil wrong between two parties International Public Law: Concerns the structure and conduct of states and international organization. (example: set-up of international institutions, human rights and the extradition of nationals from another country to their home country) - It concerns the law/rules between the states - Public law is enforceable by states only International Business Law: International private law concerning the activities and organization of multi-national businesses (commercial transitions, contracts, insurance, investments) Three Issues of International Private Law: 1. What court of law has jurisdiction in case of litigation (lawsuit)? 2. What law is to be applied in order to resolve the conflict between the contracting parties? 3. Is there a specific treaty that provides an immediate solution to a conflict between contracting parties? Goal & Characteristics European Union - Goal: economic integration through the use of a common market (no borders, so goods, persons, capital and services can circulate freely) - Supranational organization: It is a state above the Member States, which has the authority to make rules that bind the Member States of the EU. Normally: States can decide whatever they want, but when there is a supranational organization they cannot. EU can make binding rules. They give up a part of their power. - Supremacy: EU-law is higher than the laws of the Member States - Direct applicable: EU-law is applicable in the member states, without need for further acts by the government, no translation to need to Dutch law for example.

3 Difference International Law European Law European law in itself is also international law - European Law is based on 1 Treaty: EU Treaty - International Law is based on numerous Treaties on various Subjects Sources of EU-law EU-Treaty (directly applicable) Regulations: Type of EU legislation which takes effect in the member states, without the states being able to change its effect on their national legal systems (for example privacy-regulation) Directives: EU-law binding on member states: the content of the Directive has to be incorporated into national legislation within a prescribed period of time. Decisions: Individual acts, binding on a Member State or an individual or group of individuals. Preliminary rulings by the European Court of Justice: A question about interpretation of an article of the EU-treaty. Binds the national court in its particular case. Law System

4 Court of appeal and district court have a choice: ask the question or not when a preliminary question rises. Supreme court it is mandatory to ask the preliminary question, because there is no higher national court where the parties can turn to (no further appeal) A preliminary ruling binds the national court in that particular case. Conditions preliminary ruling: 1. Courts and tribunals have the right to request a preliminary ruling 2. The necessity of the preliminary ruling 3. No judicial remedy under national law A preliminary ruling can be asked when: - It is asked by a court or tribunal - The question regarding EU law is relevant - The question regarding EU law hasn t already been decided - The correct interpretation of EU law is not obvious there is doubt - The question is not a hypothetical question (there has to be a real conflict) Three Key Players European Law - Antonio Tajani, president of the European Parliament (voice of the people) - Donald Tusk, president of the European Council (voice of the Member States) - Jean-Claude Juncker, president of the European Commission (promoting common interest) The EURO Why Euro? - No fluctuation risk and foreign exchange cost - More choice and stable prices for consumers - Closer economic cooperation between EU countries Coins: one side with national symbols, one side common Notes: no national side The treaties 1952: European Coal and Steel Community 1958: The treaties of Rome: - European Economic Community - European Atomic Energy Community 1987: European Single Act: Single Market 1993: Treaty on European Union Maastricht 1999: Treaty of Amsterdam 2003: Treaty of Nice 2009: Treaty of Lisbon

5 Treaty of Lisbon (2009) Goal: To make the EU more democratic, more efficient and better able to address global problems, such as climate change. How? - More power European Parliament - Citizens initiative > ask European Commission to make law - Change of voting procedures in the Council - A permanent president of the European Council - A new EU diplomatic service The treaty clarifies which powers: - Belong to the EU - Belong to EU member countries - Are shared EU institutions Summit at the European Council Brussels Summit of heads of state and government of all EU countries - Held at least 4 times a year - Sets he overall guidelines for EU policies - President: Donald Tusk European Parliament Voice of the people (751 members) - Three work places: Brussels, Strasbourg and Luxembourg - Members are directly elected by European citizens, where the number of representatives of each country depends on the size of the country. - European parliament has a role in approving the budget of the EU - Final say in law-making - Give approval for members EC Council of Ministers (=Council) Brussels - One minister from each country (depending on subject which minister) - Presidency: rotates every six months

6 - Decides EU laws and budget together with Parliament - Manages the common foreign and security policy How they vote? - 55% of Member States (16 countries) - Member States that represent 65% of population total European Commission (For Holland Frans Timmermans) - Proposes new legislation Make new laws - Executive organ - Guardian of the treaties - Represents the EU on the international stage Initiative a law Court of Justice - 28 independent judges, one from each EU country - Rules on how to interpret EU law - Ensures EU countries apply EU laws in the same way Not disputes between individuals and government-individuals Court of Auditors - 28 independent members - Checks that EU funds are used properly - Can audit any person or organization dealing with EU funds The European Central Bank President Central Bank: Mario Draghi - Ensures price stability - Controls money supply and decides interest rates - Supervises that banks are safe - Works independently from governments How EU laws are made:

7 Legislation Types: - Regulations - Directives - Decisions - Recommendations Chapter 6 Free movement (single market) Single market Four freedoms of movement: - Goods - Services - People - Capital The single market has led to: - Significant reductions in the price of many products and services, including airfares and phone calls - More choice for customers million new jobs Free to move Schengen - No police or customs checks at borders between most EU countries - Controls strengthened at the EU s external borders - More cooperation between police from different EU countries - Buy and bring back any goods for personal use when you travel between EU countries Free movement of workers Concerns workers (he performs activities for economic purpose, performs services for another person or when he is insured against one of several risks in relation to salaried workers) - Right to entry as a job seeker (and family) - Right to reside in the state he entered - After 5 years: right of permanent residence Also remains when the person did not complete a period of 5 years when: Retired workers Incacipated workers: permanent incapacity for work Frontier workers: a worker that is employed in another Member State while retaining his residence in the home state, provided that he has been continuously employed for three years and returns to his state of residence daily or at least once a week. In some cases restrictions are allowed on grounds of public policy/security/public health.

8 Free movement of services For example: - Services of a commercial of industrial nature - Services of craftsman Free movement of capital - Freedom of payments - Some restrictions are allowed: o Tax laws: when place of residence and place of investment are different o On grounds of public policy/security Quantitative restriction: act of a Member State which restricts the import or export of a product by amount or by value or for a certain period of time. Measures having equivalent effect are usually administrative measures taken by a Member State which, like quotas, are capable of restricting the free movement of goods. Rules which are capable of hindering, intra-community trade are to be considered as measures having an effect similar to quantitative restrictions Distinctly applicable measures: Difference own product <> foreign products Indistinctly applicable measures: No difference own products <> foreign products When you have determined that there is an obstacle (measure that is in violation of the free movement of goods) look if the measure is justified on ground of art. 36 Justification of obstacles/restrictions 1. Public morality 2. Public policy or public security 3. Protection of health and life of humans, animals or plants 4. Protection of national treasures possessing artistic, historic or archaeological value 5. Protection of industrial and commercial property When it is not on the list, look up the rule of reason. There are conditions to justify the obstacle.

9 Chapter 3 5 Obstacles put up by member states that endanger the free movement of goods with the territory of the EU, are prohibited, unless there is justification. EEX Regulation What court of law has jurisdiction in case of litigation (lawsuit)? - Nationality of parties is of no concern - The place where the parties live/are established is relevant! Most important articles of the EEX (in order of relevance): 23: Parties choice of a court of law Articles about: Immovable property, individual employment, consumer contracts, insurance matters 2+5: General provisions regarding jurisdiction Execution of the judgment When the court of law gives a judgment, where does the judgment have to be executed? It can be executed throughout the EU. Arbitration Third party: frequently used same line of business; experts Advantages: - Verdict of superior quality because of experts - Less formal procedure > can be faster - Arbitrators are independent of states and courts - Not open to the public Disadvantages: - Generally expensive > salary arbitrators paid by parties - No longer possible to go to a court What law is to be applied in order to resolve the conflict between the contracting parties? Two parties from different states have a conflict. The rules of the ECO dictate which law should be applied to a disputed contract, like German law or English Law. Contractual Obligations Answers like, German law or English law - Nationality of the parties is no concern. - The place where the parties live/are established is relevant

10 Most important articles of the ECO (in order of relevance): - 3: Parties choice of law - Articles about: Consumer contracts, individual employment contracts - 4: General provision Tort = wrongful act (for example when a car causes an accident and there are damages) The ECO deals with law applicable to international contracts A tort is no contract, so the ECO doesn t apply. CISG: United Nations Convention on the International Sale of goods Is there a specific treaty that provides an immediate solution to a conflict between contracting parties? ECO should not be used if there is a Convention or Treaty dealing with the same subject in as much detail as the ECO. Two parties from different states have a conflict, CISG is the specific treaty to be used to solve problems relating to contract of sale. In the CISG you can find answers to the following questions: - Can I declare this contract null and void? - Can I claim compensation for damage suffered because delivery was not made in time? - Is it still possible to revoke my offer? - Is the seller allowed to repair a defect in the machine he supplied? CISG requirements: - Contract between 2 professionals (companies, not consumers) - Sale of goods - Only Member States (if not, go to the ECO) (Companies that signed the CISG, could be worldwide, not only in Europe) General According to the EEX, the plaintiff can make a choice to which court of law he d like to go. According to the ECO, the law of the country where the seller has his habitual residence has to be applied. (Dutch seller Dutch law) Brussels I Regulation (which court, EEX regulation) Brussels I regulation states the rules on matters of jurisdiction. When apply for the Brussels I regulation, the nationality of the parties is no concern. If one wants to determine what court of law has jurisdiction, the place where the parties live is relevant. When a court of law that has jurisdiction according to Brussels I gives a verdict in a case, it is possible to execute this verdict in another Member State of the EU.

11 Rome I (ECO) Rome I gives a so-called rules of reference, in other words, the rules of Rome I dictate which law should be applied to a disputed contract. Rome I applies to contractual obligations in any situation involving a choice between the laws of different countries. (Member states are all EU members, except for Denmark) Rome II Rome II Regulation, the regulation on the law applicable to non-contractual obligations applies in situations where, with regard to non-contractual obligations in civil and commercial matters, there is a conflict of laws. ROME II states that the law applicable to a non-contractual obligation is the law of the country in which the damage occurs. Chapter 7.1 Competition Law Competition Law: All agreements between undertakings (or decisions taking by associations of undertakings) may have a negative effect on trade. The common market (single market of free movement of goods) must be protected from these decisions. EU Treaty 101 (cartel law) and 102 (abuse of dominant position) are necessary. Art. 101 EU-Treaty: prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices, which may affect trade between Member States. - Fixing of purchase and selling price - Limitation/control of production or markets - Division of markets Art. 102 EU-Treaty: Abuse of dominant position, prohibits the abuse of a dominant position by one or more undertakings within the common market or a substantial part of it. - Unfair prices - Discriminatory prices - Unfair trading conditions - A refusal to supply other undertakings - Import and export bans An undertaking with a dominant position can set the price. Difference with the principle of free movement of goods? Key issue: who took the measure? Member State or a private undertaking European cartel can get a fine by the European Commission.

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