INTERNATIONAL BUSINESS TRACK

STUDENT CODE: 75206

LAST NAME : fedorova

FIRST NAME : nina

21_EB3_NI_IBT_S2_CCO_LAW_3342

EUROPEAN ECONOMIC &

GOVERNANCE ISSUES

FINAL EXAM
START DATE: 10/05/2021 2:00 PM (Paris time)
DUE DATE: 10/05/2021 3:30 PM (Paris time)
Lecturer/Professor: Catherine GUILLEMINEAU (Nice) / Olivier BEDDELEEM (Lille)

INSTRUCTIONS:
 Assignment type: Individual
 Type(s) of assignment file accepted: WORD
 Number of document expected: 1 (answer on this document)
 Number of submission attempts allowed: 2
 Appendix(ces) provided: no
 SafeAssign: this assignment will be checked for plagiarism.

THE EXAM CONSISTS IN 2 CASE STUDIES, EACH WORTH A TOTAL OF 10 POINTS.

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  Read carefully each question and answer all the points addressed in each
question.
 Your essays will be evaluated in terms of: appropriate content and relevance; use
of course concepts; critical analysis and argumentation; clarity and structure;
linguistic accuracy / written style.
 Be concise; answers should be no more than 300 words long.

I. DECISION MAKING IN THE EU: THE DUBLIN REGULATION (10 POINTS)

Read the excerpts below on the proposed reform of the Dublin Regulation, part of the EU’s
common migration and asylum policy. The Dublin Regulation determines which EU member
states are responsible for examining asylum applications lodged in the EU.
Answer the questions after the text.
In the field of asylum policy “since the Treaty of Lisbon, Article 80 of the TFEU … explicitly
provides for the principle of solidarity and fair sharing of responsibility, including any
financial burdens, between Member States. EU actions concerning asylum should, if
necessary, contain appropriate measures to ensure this principle is realised. The treaty
also significantly altered the decision-making procedure on asylum matters, by introducing
co-decision [the ordinary legislative procedure] as the standard procedure.” 1
“Under the current legislative framework, the first EU country that asylum seekers enter is
responsible for examining their asylum claim. Countries such as Italy, Greece and to a
lesser extent Malta and Spain, which are the frontline of migrants’ routes to Europe, have
repeatedly protested against the disproportionate responsibilities that Dublin imposes on
them.
[….] The scale of the migration phenomenon has become a heavy burden on the asylum
system of frontline countries and in September 2015 it prompted the European
Commission to adopt temporary relocation schemes to alleviate the pressure faced by
these countries.
Although only a minority of an already negligible amount of asylum seekers was
eventually relocated, Czech Republic, Hungary, Poland and Slovakia fiercely opposed the
compulsory quotas and denounced these as a clear infringement of national sovereignty.
In September 2017, the programme abruptly stopped with the relocation of less than 30%
of what was originally pledged, amounting to only 2% of unauthorized arrivals to Italy and
Greece over the past two years. To date, the Dublin system still functions under the same
first-country-of-arrival rule.”
“Faced with the opposition of member states from the Visegrad group, the [former]
Juncker Commission made it plain on [4 December 2018] that it has given up on one of its
declared goals: completing the reform of the Common European Asylum System.
The current “Dublin rules” on asylum place a huge burden on the main migrant entry
points like Greece or Italy as they say that refugees must claim asylum in the first country
they arrive in, and should be returned there if they move on somewhere else. [However]
1
https://www.europarl.europa.eu/factsheets/en/sheet/151/asylum-policy

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 proposals such as mandatory relocation or resettlement, … were rejected by the countries
of the Visegrad group (Poland, Hungary, Czech Republic, Slovakia).”
“On 16th September 2020, Ursula von der Leyen, the [new] President of the European
Commission, announced in a State of the Union address a New Pact on Migration and
Asylum. The new pact seeks to abolish the Dublin Regulation III, in furtherance of the
recommendations the Commission made in 2016, which would be replaced with an Asylum
and Migration Management Regulation.”

1) Why can the European Commission propose a regulation on asylum applications lodged in
the EU and why does it want to revise the existing regulation? Explain your answers. Use the
text and the course concepts on decision making in the EU. (4 points)

Each individual application for asylum lodged within the EU must be examined - each member
state must be able to determine whether it is responsible for examining an application for
asylum. The scale of the migration phenomenon has put a heavy burden on the asylum
system of frontline countries, prompting the European Commission to adopt temporary
resettlement schemes to ease the pressure these countries face.
The aim is to provide quick access to asylum procedures and the examination of an
application on the merits by one clearly defined EU country. The Regulation establishes the
Member State responsible for examining an application for asylum. The large-scale,
uncontrolled arrival of migrants and asylum seekers in 2015 placed a strain on not only
asylum systems in many Member States, but also on the Pan-European Asylum System as a
whole. The volume and concentration of arrivals highlighted, in particular, the weaknesses of
the Dublin system, which sets the Member State responsible for examining an application for
asylum, based mainly on the first point of illegal entry.

2) From the viewpoint of EU legislative procedure, can or cannot, four EU member states (the
Visegrad group) representing less than 15% of the EU population block the revision of EU
regulation on asylum? Do you see other reasons, why they might be able to do so? Use the
text and the course concepts on decision making in the EU. (4 points)

In order for the countries to approve their statements they must form a coalition
The common European asylum system is being established gradually, through legislation of the
European Parliament and the Council of the EU, and should include:
1) uniform asylum status for third-country nationals, valid throughout the Union;
2) a uniform status of additional protection for third-country nationals who, having not received
European asylum, nevertheless need international protection;
3) the general system of temporary protection of displaced persons in the event of their mass
influx;
4) general procedures for granting and withdrawing uniform asylum or supplementary
protection status;
5) criteria and mechanisms for determining the Member State responsible for processing an

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 application for asylum or additional protection;
(6) Standards for the conditions of reception of persons applying for asylum or additional
protection;
7) partnership and cooperation with third countries to manage the flow of asylum seekers or
additional protection applicants
In addition, the Council of the EU, on the proposal of the European Commission, is authorized to
take temporary measures to support member states if one or more of them find themselves in an
emergency situation characterized by a sudden influx of third-country nationals
Because they want to reduce the number of applications for asylum decreased to 8,730, which is
86% less. The European Union closed its external borders in March, and many of its 27 member
states have suspended the registration of petitioners ' applications

3) What does the example of the revision of the Dublin regulation tell us about the rules and
the practice of law making in the EU? Which opposing principles does it illustrate? Explain
your answers. (2 points)

Anti-impoverishment rights are the minimum core of economic, social and cultural life. Rights and
should not depend on the possibility of their achievement in another Member State. Although
some countries may have different social security laws. Member States that would enable people
to benefit even if they were not eligible on admission conditions, this does not apply to every EU
member state, especially when it is about the effective exercise of these rights. The International
Court of Justice is concerned about this widespread use of punitive measures for minor crimes.
relocation without at least an exemption for persons in vulnerable situations or members of
vulnerable groups, as well as assessments specific circumstances as part of an individual
assessment or clear measure that obliges everyone Member States of the EU provide social
protection for all. In order to comply with the norms and standards of the EU and international
law, the International Court of Justice stresses that the proposed Rules should provide for
effective access to social assistance to ensure that states meet their obligations. the obligation to
provide the minimum necessary protection of ESC rights, which must be available to everyone
under the jurisdiction of the EU member states.

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II. COMPETITION POLICY IN THE EU: THE FITBIT-GOOGLE MERGER (10 POINTS)
Read the extract below of an article written on the acquisition of Fitbit by Google. The merger
was approved by the European Commission on 15 December 2020.
Answer the questions after the text.
“Brussels gave a green light to Google's $2.1 billion acquisition of Fitbit, the maker of
fitness-tracking devices, despite massive opposition from consumer organizations and
competition experts concerned about the handling of the personal data Fitbit collects.
Fitbit makes smartwatches and trackers popular among joggers that measure heart rate or
track sleep patterns on a daily basis. The device maker is also a treasure trove of health
and activity data.
The Commission [opened] in August … an in-depth probe. It feared Google would get “key
insights about the life and the health situation of the users“ which would “further entrench
Google's market position in the online advertising markets.”
To alleviate Brussels’ concerns and secure approval, the U.S. search giant committed to
open up part of the new business to rivals and promised not to use Fitbit’s health data for
targeted advertising for 10 years.
“We can approve the proposed acquisition of Fitbit by Google because the commitments
will ensure that the market for wearables and the nascent digital health space will remain
open and competitive," said EU competition chief Margrethe Vestager.
The Commission consulted the EU's privacy regulator and made it clear that using health
data will be prohibited unless users give their explicit consent, in accordance with EU
rules, according to the press release.
"This deal will spur innovation in wearable devices and enable us to build products that
help people lead healthier lives ... we are committed to protecting Fitbit users’ privacy and
will continue to invest in and support manufacturers and developers," a Google
spokesperson [said].
However, the clearance sent mixed signals about how serious the EU is about protecting its
citizens from the abuses of Big Tech, according to Tommaso Valletti, who was chief
economist in the Commission’s competition department from 2016 to 2019.
It’s (not) about data
Brussels opened an in-depth investigation into the deal in August as it considered that
Fitbit’s health data, combined with Google’s existing data, could become “an important
advantage in the online advertising markets.” It also feared the tie-up could allow the
search giant to dominate the digital healthcare sector, which is “still at a nascent stage in
Europe,” it said, and wondered whether it could kick Fitbit’s rivals out of the market by
precluding access to Android, Google’s operating system for smartphones.
After a first proposal failed to convince the EU regulator, the search giant eventually
offered to keep the Fitbit data separate, and promised not to use it for targeted advertising.
It also committed to share part of the Fitbit data to competing wearable makers, and to
preserve Android’s compatibility with other trackers.

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 Swimming against the tide
The clearance decision goes against a raft of public criticisms the tie-up received as
Brussels was investigating the deal. In July, 20 consumer groups sent a joint letter to
various competition agencies warning that the combination would “reduce consumer
welfare (including degrading data privacy options), limit innovation and raise prices.”
In late July, seven competition and tech experts — including Valletti — came out against
the deal in an op-ed. They contended that “regulators have been far too lenient” and failed
to “spot acquisitions that have allowed entire industries to be monopolized.” They were
also concerned about the deal’s “serious implications for privacy,” adding “it would be
naive to believe the Commission is capable of preventing the misuse of consumers’ data.”
Valletti and 13 other top competition economists in September wrote to the Commission
warning that Google would be able to monetize Fitbit’s health data in “ways that can
directly harm consumers.” Fitbit’s data is a “source of valuable complementary health
metrics which Google can correlate with an enormous wealth of other data,” they said in
the letter.
This could “allow for personalization of offers in fields such as insurance, health, and even
employment, that is incomparable and … absolutely not benign or efficient,” they added. In
other words, Google — or other companies it would help — could charge different prices
to different consumers, based on their health data. This would give Google the possibility
to “leverage its power into health and insurance markets.”
“They still think the whole case was about interoperability. … They never understood the
merger will cause direct harm to consumers,” said Caffarra, one of the letter’s signatories
and, who heads the European competition practice at the economics consulting firm
Charles River Associates.
Those worries are not shared by all. “The acquisition is a credible addition to pre-existing
capabilities,” said Nicolas Petit, a law professor at the European University Institute.
“And there’s lots of competition in smartwatches and wearables.”
The EU’s new mantra
The European Commission could have put forward novel arguments in favor of a block,
various opponents to the deal contended, but wouldn't have because of the risks of a legal
challenge if had Google appealed the prohibition before the EU courts.
And there is a back story. In 2017, the European Court of Justice rowed back on the
Commission’s 2013 decision to block the mega-merger between mail operators UPS and
TNT. And in May [2020], the EU’s top court annulled Vestager's 2016 decision to block a
major British telecoms deal between CK Hutchison and Telefónica’s O2.

1. Why did the European Commission accept the merger between Fitbit and Google? Was the
merger accepted conditionally or unconditionally? Explain your answers. Use the text and the
course concepts on the control of mergers and abuses of dominant position. (5 points)

This is likely to make it much more difficult to compete effectively in several vital markets and
lead to increased Google dominance, with consequences for competition and, in turn, for

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 consumers and society at large. In particular, the proposed acquisition:

This is not to say that confidentiality is irrelevant when evaluating an acquisition. How personal
data is used is an important aspect of the quality of the services provided. Assessing the impact of
a transaction on product quality is a standard fee for considering a merger. However, the
potentially harmful impact of the merger on quality is unlikely to be serious if consumers have a
wide choice. If the acquisition leads to a deterioration in privacy for Fitbit users, they have a large
number of alternatives, especially if the Android ecosystem is always open.

In my personal view, the suggested theories of harm have either been remedied or are not
supported by evidence to the requisite legal standard. A negative decision would almost certainly
have been overturned by the General Court. Blocking the transaction in such circumstances
would not have been a bold policy move. In my mind, it would have been an abuse of power.

2. Do the arguments of the opponents to the merger pertain, or not, to competition law? In the
event Google were to transfer data to health insurance companies, what type of legal issues
such a transfer would raise? Explain your answers. Use the text and the course concepts. (5
points)

Before I describe my opinion I want to admit that Google has promised to reach out to
investigators on issues of concern. The Commission's executive vice president, Margaret
Vestager, said the deal would keep the wearable market "open and competitive.""
The European Commission has expressed concern that Google:
 use a tranche of Fitbit data for targeted advertising, making it harder to compete with
competitors
 exclude third parties from the Fitbit platform
 put competing wearable device manufacturers at a disadvantage by jeopardizing
compatibility with Google's Android smartphone operating system.
Now Google has promised:
 do not use health, fitness, or location data from Fitbit devices for advertising purposes to
users in the European Economic Area.
 store Fitbit data in" storage " separately from any other data used for advertising.
 support for third-party access to the Fitbit platform
 does not impair the user experience of a third-party smartwatch paired with an Android
phone

But there are some reasons why EU commission should cancel this merger:
1. Wearable devices
Smartwatches and health trackers are the most prominent example of the type of" digital
wearable devices " that many observers expect will soon enter our daily lives. Therefore,
ensuring tough competition in the industry should be the main goal of competition policy.
Currently, the smartwatch works together with the smartphone. So there are legitimate
concerns that this acquisition could lead Google to restrict the interaction between
competitors ' watches and its Android ecosystem in order to boost Fitbit's own sales and
collect more health data.
2. Online advertising
Google's strong position in online advertising is driven by the number of users on its platform

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and its ability to target ads to a more specific audience. With access to Fitbit data, Google can
target its ads even better, gaining an additional competitive advantage.
3. Digital Health
Big data analytics is an important part of the ongoing digitalization of healthcare. The novelty
lies not in the availability of data, but in the possibility of their systematic collection, storage
and analysis. Some observers fear that combining Google data with Fitbit data could improve
the combined organization's analytical capabilities to the point where it would become
dominant in the field. I'm not convinced.
4. Confidentiality
Some aspects of privacy clearly fall outside the scope of competition policy. Who owns the
different types of data and how that data can be used or sold are important social issues, but
competition authorities do not have the authority to address them.

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