Browsing by Author "Portuese, Aurelien"

Now showing 1 - 7 of 7
  • Thumbnail Image
    ItemEmbargo
    The Case for a Principled Approach to Law and Economics: Efficiency Analysis and General Principles of EU Law
    (Springer, 2014-09-01) Portuese, Aurelien
    Arche which in Ancient Greek means beginning or principle shows the common lineage between the study of principles and the beginning of a study: the enquiry into the nature of things starts, and should start, from the deciphering of the principles, be they of things or of law. This is also true for the general principles of law regarding the study of any legal order, and particularly of the EU legal order. Specifically, I shall demonstrate in this essay that the social influence those principles may have is to coherently formalise the EU judicial reasoning by the promotion of a notion of economic desirability when these principles are invoked. In other words, I shall argue that the principle of economic efficiency underpins each of the general principles of EU law analysed in this essay. For, the general principles of EU law as construed and interpreted by the EU judges are imbued with consequentialism rather moralism, with an analogical and practical reasoning rather than abstract reasoning, with an inductive rather than an deductive approach – in short, these principles are founded with pragmatism rather than with legalism. Indeed, the analysis of the general principles of EU law understood in their legal abstraction is neither relevant nor conclusive for a better understanding of the EU judicial reasoning. These principles are a mere conceptualisation of the EU judicial review in order to trim down the legal outcomes preferred in terms of the social consequences they (are supposed to) generate. This conceptualisation allows for an a posteriori legal justification to a legal outcome decided a priori. In sharp contrast to Wechsler’s argument that general principles of law encapsulate “what surely are the main qualities of law, its generality and its neutrality”, one can agree with Holmes who said, regarding the Common law judge, that judges “decide the case first and determines the principles afterwards”. Accordingly, after having delved into the plea that vouches for a more principled economic analysis of EU law (but also more generally of any legal orders) thatwould take place beyond the Dworkin-Posner dichotomy (1) and (2), I shall empirically scrutinize, through a casuistic analysis of the ECJ jurisprudence, the validity of the proposed approach of efficiency analysis of three general principles of EU law (3). I close the essay with some concluding remarks (4).
  • Thumbnail Image
    ItemEmbargo
    European Integration
    (Springer, 2015-06-01) Portuese, Aurelien
    European integration is a process. It is a process of institutionalization by which the old continent is continuously transformed either through incremental changes or through across-the-board reforms. European integration designates the changing current institutional framework of the European Union (hereafter EU). The European continent experiences other institutional integration than the EU’s – mostly the European Convention on Human Rights – but the focus shall be put on the EU as this regional organization is the most significant and integrated one. The history of the European integration has paved the way for an entire new legal order with a strong economic rationale to come to the fore (I). The emphasis of institution-building and market- building has nevertheless not been without difficulties in terms of construing a common political structure, democratically legitimate for the European national democracies (II).
  • Thumbnail Image
    ItemEmbargo
    European Regulatory Framework for Money Market Funds
    (Oxford University Press, 2014-07-01) Portuese, Aurelien; MacNeil, Iain
    Money market funds are widely used by all types of investors, including households, corporate treasurers, pension funds, or insurance companies, who regard money market funds as a ‘safe’ short-term liquid asset class for investing cash. In this case they are proxies to cash deposits. Money market funds are themselves key lenders to issuers of short dated high quality money market instruments. They provide an important source of funding for a variety of institutions such as sovereigns, banks, and companies. Active trading by money market funds is vital to the liquidity of various high-quality markets for commercial paper, short-term bank debt, and sovereign debt. Increased liquidity is, in turn, beneficial to market efficiency and leads to a reduction in the cost of capital for businesses.
  • Thumbnail Image
    ItemEmbargo
    Law and Economic of the European Multilingualism
    (Springer, 2010-07-15) Portuese, Aurelien
    The economics of language applied to multilingualism in the European Union (EU) has only recently come to the fore. Languages economics and Law and Economics disciplines both emerged in the 1960s. However, no study has, hitherto, linked these disciplines. This paper intends to fill that void. Language barriers are the last major remaining barriers for the EU’s ‘single’ market. The lack of coor- dination of multilingualism in the EU stems from a taboo crystallized by a dilemma between economic efficiency and linguistic diversity—i.e., the maximization of wealth versus the maximization of utility. The EU Member States (MSs) do not hasten to coordinate their language policies at the EU level inasmuch as they overestimate the benefits of the current EU multilingualism while drastically underestimating its costs. Coordination shall occur when MSs evaluate the costs and benefits of the current EU multilingualism. This will uncover the aforementioned dilemma, that will only be resolved when both Law and Economics are applied. In pursuing this objective a ‘‘Linguistic Coase Theorem’’ adapted from the work of Parisi and the Nobel Prize winner, Ronald Coase is elaborated. Having outlined the basic notions deriving from the EU Law of Languages and the Economics of Languages (Introduction), the paper scrutinizes the costs and benefits incurred by the current non-coordinated EU multilingualism (Part I). Subsequently, a ‘Linguistic Coase Theorem’ is elaborated in order to reach a Pareto-optimal out- come, thereby solving the dilemma—both economic efficiency and the linguistic diversity being enhanced (Part II).
  • Thumbnail Image
    ItemEmbargo
    The principle of legal certainty as a principle of economic efficiency
    (Springer, 2014-02-15) Portuese, Aurelien; Gough, Orla; Tanega, Joseph
    Legal certainty, a feature of the rule of law, constitutes a requirement for the operational necessities of market interactions. But, the compatibility of the principle of legal certainty with ideals such as liberalism and free market economy must not lead to the hastened conclusion that therefore the principle of legal cer- tainty would be compatible and tantamount to the principle of economic efficiency. We intend to analyse the efficiency rationale of an important general principle of EU law—the principle of legal certainty. In this paper, we shall assert that not only does the EU legal certainty principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such. The economic perspective of the principle of legal certainty in the European context has, so far, never been adopted. Hence, we intend to fill in this gap and propose the representation of the principle of legal certainty as a principle of economic efficiency.
  • Thumbnail Image
    ItemEmbargo
    Principle of Proportionality as Principle of Economic Efficiency
    (John Wiley, 2013-04-15) Portuese, Aurelien
    The principle of proportionality is at the cornerstone of EU law, and precisely of the case-law of the European Court of Justice (ECJ). In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self-sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law—the proportionality principle. In this paper, I shall assert that not only does the EU proportionality principle encap- sulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such—hence, I propose the representation of the principle of proportionality as a principle of economic efficiency. After having introduced the principle of proportionality (1), I shall decipher the pro- portionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representa- tion (3). Finally, I conclude in light of the findings of this paper (4).
  • Thumbnail Image
    ItemEmbargo
    The Principle of Subsidiarity as Principle of Economic Efficiency
    (Columbia University Press, 2011) Portuese, Aurelien
    The principle of subsidiarity—whereby a power shared between the European Union and its Member States is exercised at the lowest appropriate level of governance—is a general principle of European Union law the justiciability of which has been widely discussed. The justiciability of the subsidiarity principle has been criticized for underlining its political relevance. However, this critique lacks the power to explain both the weight of the principle of subsidiarity in the E.U. Treaties and the case law regarding the subsidiarity principle. What is the principle of subsidiarity and what degree of justiciability does it have? This paper argues that the principle of subsidiarity is better understood in its current form when its economic complexion is underlined. More precisely, the principle of subsidiarity contains, at its core, the principle of economic efficiency. The “subsidiarity- as-efficiency” model offers a better understanding of European Union law and reveals that the European case law on subsidiarity tends to promote economic efficiency. The article shall introduce the basic notions of the E.U. principle of subsidiarity before (I) delving into the efficiency rationale of the subsidiarity principle. ext, (II) the article shall study the European case law and show that the principle of economic efficiency is clearly encapsulated in this jurisprudence, which renders the European case law on the principle of subsidiarity economically sound with respect to promotion of efficiency through subsidiarity. The article will be concluded in Part III.