I want to emphasise a particular point about the current state of the law of the European Union. To me, the most striking feature of financial regulation after the financial crisis is its complexity. Lawyers rarely complain in public about complexity. Coping with it is considered to be their job. I also do not wish to simply complain about the challenges that are common to all those who work with the piles of new legislation emanating from Brussels. The point I want to make is that complexity is problematic because it itself puts the stability of financial markets at risk. Let me explain this in more detail.

Over the last few years a “regulatory tsunami” has swept over Europe. New topics such as short sales, alternative investment fund managers and credit rating agencies have caught Brussels's attention and subsequently been thrust into the limelight. In addition, many of the already existing texts have been overhauled and substantially expanded, like the MiFID or the Market Abuse Directive, which in their second generation are now both accompanied by regulations. These provisions are supplemented by delegated acts that the Commission adopts on the so-called “Level 2”.

The EU has not stopped there, but has also created new institutions besides the traditional ones. In 2011, the three European Supervisory Agencies, EBA, ESMA and EIOPA, plus the ESRB, were created. It took only another three years to add a new Supervisory Board within the ECB and a Single Resolution Board (SRB). Most of these institutions also produce texts, such as guidelines and recommendations. They are called “Level 3” and their practical value is similar to legislation. A further layer of complexity arises from the fact that the directives need to be transposed into national law, where again supervisory institutions may adopt their own guidelines to interpretation.

The sheer volume of the texts is staggering. To take one example, the MiFID II occupies about 148 pages in the Official Journal. Its Preamble has no less than 160 Recitals. The MiFIR, which accompanies it, takes another 65 pages in the Official Journal.

POINT OF DEPARTURE: THE WORKER TREATED AS AN OBJECT

In a market economy, labour is a commodity. The economic existence of the worker depends on the development of the markets. This is obvious for selfemployed workers, but employees are in a comparable situation: if the employer gets into economic difficulties, the wage earner becomes redundant and can be dismissed. As an unemployed person, he can find a new job only under the conditions determined by the market. Despite the fact that the employee is a bearer of rights vis-à-vis the employer during the employment relationship, it is misleading to call him a “citizen” of the enterprise. An individual who can be “expatriated” at any moment is no “citizen” – and the employer can always take economic decisions that make the employee redundant. In reality, the worker is treated as an object. This is in contradiction to human dignity.

MITIGATING THE SITUATION

The fact of a person being a commodity can be more obvious or less obvious, more felt or less felt. Four factors play a role in this field.

THE INDISPENSABLE WORKER

It may happen that the worker cannot be replaced because of his special qualifications or his experience in the enterprise. To dismiss such a worker would create considerable problems in the working process. There is a good chance that such workers will remain in the position they desire and that their dignity is respected, especially in cases of highly qualified persons. This is a market-created protection against dismissal. Protection against dismissal is not just one element of an employee's situation: it is the fundamental condition for the exercise of all other labour law rights.

PROTECTION BY LABOUR LAW

There are a lot of legal rules protecting the worker: health and safety, fundamental rights in the workplace, minimum wages, stability of real earnings, protection against dismissal. A large part consists of judge-made law, the content of which varies from country to country. These legal rules reduce the degree to which a worker is treated as a commodity. In some legal orders the employer is not allowed to examine the private life of an applicant and genetic screening is forbidden as well; the “commodity” must not be inspected in an “exaggerated” way.

INTRODUCTION

Hardly any other area of law is as closely linked with financial crises as insolvency law. Without being too technical, it is possible to claim that insolvency law owes its very existence to the possibility of financial crises. In an ideal world, debtors can always discharge their debts, creditors are happy and so are debtors. However, reality closes in on them whenever a debtor loses the capacity to honour all his debts. In a creditors’ utopia, enslavement of, or at least prison for, the debtor would be the method of choice but is, for obvious reasons, banned by international law. In contrast, in a debtors’ utopia, an unconditional fresh start, free of all past debts, would certainly be preferred.

Modern insolvency law sets out to provide for a more balanced approach. It honours both the joint interest of the creditors to be paid and the debtor's individual interest to regain his economic freedom. In certain sectors, in particular the financial markets, public interests call for specific considerations. How these interests should be balanced is a political decision. Different legislators may provide for different solutions, and even the same legislator's solutions may differ over time. Crises frequently trigger legislative action. This chapter aims to outline how, speaking technically, the financial crisis of 2007 and subsequent years influenced the legal framework for insolvency law within the European Union. It will be suggested that the financial crisis has strongly promoted an extensive regulation of European insolvency law for the protagonists on financial markets (section 2). As for European insolvency law in general, the current development only seems to coincide with the aftermath of the crisis (section 3). Finally, although the financial crisis might be considered to have revealed a need for a specific state insolvency law, the European Union – at least its dominant Member States – seems to consider contractual approaches to be sufficient (section 4).

INTRODUCTION

European consumers have access to diverse and alternative redress systems to solve their complaints in relation to cross-border complaints. Those alternatives refer to judicial and non-judicial (i.e. conciliation, mediation or arbitration) schemes, available for individual as well as for collective claims. However, the existing disparities between Member States in relation to those dispute resolution systems create difficulties to access justice and, as a result, European consumers refrain from shopping across borders, thus negatively affecting the development of the internal market. This outcome is especially negative in the current economic framework of financial crisis. Therefore, this chapter aims to provide an overview of the “market” of redress systems available for cross-border consumer complaints in the EU by assessing the alternatives open to consumers in the Directive on Consumer ADR and the Regulation on Consumer ODR, as well as their impact in enhancing the confidence of consumers in the internal market.

FINANCIAL CRISIS AND JUSTICE TO CONSUMERS IN THE INTERNAL MARKET

The current economic and financial crisis has increased the need to stimulate the internal market, in order to achieve the main goals of the EU. In that respect, European institutions have underlined that there are several disparities and difficulties, in terms of access to justice for consumers redress in cross-border cases, which constitutes a barrier to the internal market and leads to its fragmentation. As a result, and according to such analysis, consumers normally abstain from shopping across borders and also lack confidence that potential disputes with traders can be resolved in an efficient, easy, fast and inexpensive way, thus negatively affecting the proper functioning of the internal market.

In relation to this, and if we take into account the different alternatives open to consumers to solve their disputes when these disputes are of a transboundary nature, it is legitimate to analyse which redress mechanisms are better tailored to satisfy consumers’ needs in relation to intra-European situations, in order to improve access to justice for consumers in the EU, increase cross-border shopping and, as a result and ultimately, enhance their confidence in the internal market.

INTRODUCTION

In 2013, at the peak of the ongoing Greek economic crisis, the Greek air carrier Aegean Airlines notified its acquisition of Olympic Air, a subsidiary of the investment group Marfin. Both companies provided services in the air transport market. Olympic Air had not been profitable since 2009 and had received financial support from its shareholder Marfin. According to the Commission's market investigation, Olympic Air would have been forced out of the market in the near future due to financial difficulties. The Commission's market investigation also found that the takeover of Olympic Air would result in a monopoly in the Greek air transport market on several air routes. Nonetheless, the Commission cleared the transaction unconditionally.

The decision caught a lot of attention considering the serious competitive impact of the transaction. The decision was based on the so-called failing firm defence. According to this analytic model an “anti-competitive” merger is to be cleared if – absent the merger – competition would be the same or even worse. The Commission's investigation found that if Olympic had not been acquired by Aegean, it would have left the market in the near future and Aegean would have become a monopolist anyway.

In this chapter I focus on merger control during and after the financial crisis with special regard to so-called rescue mergers and the failing firm defence. I argue that there is evidence in recent decisions that the European Commission relaxed its stance on mergers after the financial crisis. Therefore I provide some background considering the Commission's concept of the failing firm defence. I also discuss the recent developments with regard to counterfactual concepts. Recent cases suggest that the Commission is shifting towards a more relaxed approach to the failing firm defence and is opening the doors for a wider counterfactual analysis.

EUROPEAN MERGER CONTROL REGIME

In Europe, all EU Member States, with the exception of Luxembourg, employ a national merger control system. With the exception of the United Kingdom, all national merger control laws stipulate a mandatory preventive notification system; hence, qualified transactions have to be notified to the relevant authorities prior to the implementation of the transaction.