Case-law of the European Court of Justice on Freedom of Establishment after Centros

2000 ◽  
Vol 1 (1) ◽  
pp. 147-155
Author(s):  
Vanessa Edwards
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Freedom Of Establishment ◽  
Court Of Justice ◽  
European Court

scholarly journals Steigimosi laisvė po Cartesio bylos: ES inkorporavimo doktrinos trūkumas ir to padariniai

Teisė ◽  
2010 ◽  
Vol 75 ◽  
pp. 143-158
Author(s):  
Robertas Čiočys
Keyword(s):  
International Law ◽  
Case Law ◽  
European Court Of Justice ◽  
Private International Law ◽  
Freedom Of Establishment ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court ◽  
Real Seat

This article defines private international law doctrines of incorporation and real seat and then turns to the analysis of freedom of establishment guaranteed by the EC Treaty. The article analyses judgments of the European Court of Justice, interpreting the freedom of establishment in cases where companies tried to transfer their seats across frontiers, especially in light of the newest judgment in this area in the Cartesio case. The analysis of case law shows the link between the freedom of establishment and private international law doctrines. The article is concluded by a discussion of opportunities that free­dom of establishment provides for companies, alternatives for cross-border business restructurings and implications of rising number of these activities. Straipsnyje apibūdinamos tarptautinės privatinės teisės taikomos inkorporavimo ir buveinės doktri­nos ir tada analizuojama EB steigimo sutarties garantuojama steigimosi laisvė. Aptariama Europos Tei­singumo Teismo praktika interpretuojant steigimosi laisvę bylose, kai bendrovės bandė perkelti buveinę už valstybės ribų. Atsižvelgiant į tai, kaip supratimą keičia naujausia byla šioje srityje − Cartesio. Teis­mo praktikos analizė parodo steigimosi laisvės ir tarptautinės privatinės teisės doktrinų ryšį. Straipsnis baigiamas aptariant galimybes, kurias bendrovėms suteikia steigimosi laisvė, ir alternatyvas, kuriomis jos gali pasinaudoti, siekdamos pertvarkyti verslą, kai tai apima kelias valstybes, bei šio reiškinio dažnė­jimo padarinius.

Turn of the Tide?: The “Golden Share” Judgements of the European Court of Justice and the Liberalization of the European Capital Markets

2002 ◽  
Vol 3 (8) ◽  
Author(s):  
Johannes Adolff
Keyword(s):  
Central Element ◽  
Case Law ◽  
European Court Of Justice ◽  
Freedom Of Establishment ◽  
Community Institutions ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Judicial Proceedings ◽  
Treaty Of Rome

There is hardly a set of legal institutions that has more contributed to the creation of the common market than the fundamental freedoms enshrined in the Treaty of Rome. The expanding concepts of freedom of establishment and of free movement of goods, persons, services and capital have, during the thirty years since the European Court of Justice\'s (ECJ) decision in \”Dassonville\”, by far become the Community\'s most effective deregulatory instruments. The driving force behind this development has been the case law of the Court. This case law has, on an initially slim basis in the Treaty, established the fundamental freedoms as the central element of a \“new legal order\” which has direct effect, results in the automatic inapplicability of incompatible national law and which can be invoked by every citizen in national administrative or judicial proceedings. Furthermore, it is enforced not only by Community institutions but also by EU-citizens acting as \“private public attorneys\” when bringing claims under European law against Member States for damages resulting from violations of the Treaty.

scholarly journals Analysis of ECJ case law on discriminatory treatment of cross-border inheritance tax

2017 ◽  
Vol 1 (1) ◽  
pp. 15-28
Author(s):  
Gracia Luchena
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Free Movement ◽  
Freedom Of Establishment ◽  
Member States ◽  
Cross Border ◽  
Inheritance Tax ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Capital

Recently, the European Commission has launched a package which deals with issues of double taxation and discriminatory tax treatment in the area of inheritance and estate tax. In the paper the Commission discusses ten cases in which the European Court of Justice examined the inheritance tax rules of Member States. In eight out of the ten cases it concluded that the Member States in question breached EU rules on the free movement of capital and/or freedom of establishment. For example, on the 3rd of September 2014, the ECJ entered/made a judgment resolving that the Spanish Inheritance Tax should impose restrictions on the free movement of capital, one of the fundamental principles of the EU’s Single Market. Taking into consideration the merits of the case the Court of Justice finally concluded that the situations between resident and non-resident taxpayers or between goods located in Spain or abroad are comparable and that therefore the applicable tax treatment should be the same.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

Die Nacherfüllung aus Verkäufersicht

2022 ◽  
Author(s):  
Constantin Jungclaus
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Focal Points ◽  
European Union Law ◽  
Economic Interests ◽  
Court Of Justice ◽  
European Court ◽  
Specific Performance ◽  
Damage Claims ◽  
High Level

The thesis examines the question of which of the compared sales law systems is most likely to realize the (economic) interests of the seller in connection with the consumer’s claim for specific performance, which is characterized by a high level of consumer protection. In this respect, the thesis examines 7 different complexes - from the position of specific performance in the system of purchase warranty rights to the scope of specific performance owed and the objection of disproportionality. Dogmatic focal points are, for example, the problem of self-execution in the light of European Union law and the allocation of certain damage items to specific performance or to damage claims in the light of the case law of the European Court of Justice.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

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