Making the Case for a Rome V Regulation on the Law Applicable to Companies

2020 ◽  
Author(s):  
Carsten Gerner-Beuerle ◽  
Federico Mucciarelli ◽  
Edmund Schuster ◽  
Mathias Siems
Keyword(s):  
Case Law ◽  
Company Law ◽  
Freedom Of Establishment ◽  
Conflict Of Laws ◽  
Incorporation Theory ◽  
Domestic Company ◽  
The Law ◽  
Definition Of ◽  
The Relationship ◽  
The Eu

Abstract There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this article is that private international company law in the EU should be harmonized. The article discusses the main challenges that a future regulation to this effect—called here ‘Rome V Regulation on the Law Applicable to Companies’—would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this article to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonization based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects for future international harmonization.

scholarly journals EU Law’s Half-Hearted Protection of Religious Minorities Minority Specific Rights and Freedom of Religion for All

Religions ◽  
2021 ◽  
Vol 12 (10) ◽  
pp. 830
Author(s):  
Kristin Henrard
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Freedom Of Religion ◽  
Human Beings ◽  
Special Issue ◽  
Religious Minorities ◽  
Definition Of ◽  
Special Rights ◽  
The Relationship ◽  
The Eu

This article begins with some reflections on the definition of religious minorities, their needs and rights and how this relates to the discussion about the need for minority specific rights in addition to general fundamental rights as rights for all human beings irrespective of particular identity features. Secondly, an overall account of the ambiguous relationship between religious minorities and fundamental rights is presented. The third and most extensive section zooms in on the EU and religious minorities, starting with an account of the EU’s general approach towards minorities and then turning to the protection of fundamental rights of religious minorities in/through the EU legal order. First, the EU’s engagement with minority specific rights and the extent to which these norms have been attentive to religious themes will be discussed. Second, the CJEU’s case law concerning freedom of religion and the prohibition of dis-crimination as general human rights is analysed. The conclusion then turns to the overall perspective and discusses whether the EU’s protection of religious minorities’ fundamental rights can be considered ‘half-hearted’ and, if so, to what extent. This in turn allows us to return to the overall focus of the Special Issue, namely the relationship between the freedom of religion for all and special rights for religious minorities.

The Europeanization of Corporate Law

2019 ◽  
pp. 85-154
Author(s):  
Carsten Gerner-Beuerle ◽  
Michael Schillig
Keyword(s):  
Case Law ◽  
Internal Market ◽  
Corporate Law ◽  
Company Law ◽  
Eu Law ◽  
Freedom Of Establishment ◽  
The Future ◽  
Corporate Mobility ◽  
Law Making ◽  
The Eu

This chapter begins with an overview of the nature and effects of EU law and the EU law-making process, with particular focus on the internal market. This is followed by an analysis of the acquis unionaire—the EU law with company law relevance at both Treaty level and the level of secondary legislation (regulations and directives). It emphasizes the trajectory of EU company law and its development in distinguishable ‘waves’. It then turns to the issue of corporate mobility within the Union, on the basis of the Court’s case law on freedom of establishment, as well as the emerging EU law infrastructure for corporate mobility transactions. The chapter concludes with some speculation about the future of EU company law in the light of Brexit.

scholarly journals The transfer of the company’s registered office

2016 ◽  
Vol 37 (1) ◽  
pp. 449-466 ◽  
Author(s):  
Saša Prelič ◽  
Jerneja Prostor
Keyword(s):  
Case Law ◽  
Company Law ◽  
Freedom Of Establishment ◽  
Legal Form ◽  
Cross Border ◽  
Court Of Justice ◽  
Registered Office ◽  
Real Seat ◽  
The Cross ◽  
The Eu

In the light of the relevant case law of The Court of Justice of the EU it is emphasized that the cross-border transfer of company’s registered office (and its real seat) must be permitted in accordance with the Treaty on the Functioning of the EU. Nevertheless, the Fourteenth Company law Directive should be adopted for the reasons of legal certainty and it should determine, whether the transfer of the registered office (without transfer of company’s real seat) to another Member State is admissible or not. Furthermore, the authors discuss the cross-border restructuring of the company, which in addition to relocation of the registered office also includes a change of its legal form. The Court of Justice of the EU has not yet decided on such cross-border restructuring, nevertheless it should be allowed based of the freedom of establishment (cross-border formal transformation).

scholarly journals Doctrine of methods of interpretation of legal norms formed in the case law of the Court of Justice

2021 ◽  
Author(s):  
I. V. Kaminska
Keyword(s):  
Detailed Analysis ◽  
Case Law ◽  
Lisbon Treaty ◽  
Theological Method ◽  
Legal Norms ◽  
Court Of Justice ◽  
The Law ◽  
Domestic Sources ◽  
Definition Of ◽  
The Eu

The doctrinal approaches to the definition of methods and principles of interpretation of legal norms applied by the Court of Justice of the EU are analyzed. The traditional and special methods of interpretation inherent in integration justice are singled out. The dynamics of changes in the approaches to the interpretation of legal norms in the decisions of the Court of Justice of the EU after the signing of the Lisbon Treaty is described. Scientific approaches to defining the concept of interpretation of legal norms contained in domestic sources are analyzed. Foreign sources on the methods of interpretation of the law by the Court of Justice of the EU have been studied. The article analyzes several European publications written at different times before the signing of the Lisbon Treaty and established, which primarily draws attention to authors who have subjected the theological method of interpretation, and very few sources that influence the justification of methods or principles of their application by the Court. It can be concluded that the tendency of European scholars to emphasize the importance of the theological method of interpretation was related to their views on the constitutional nature of the Treaties and legal considerations about the need to adopt the EU Constitution. Such conclusions correlate with the limited jurisdiction of the Court of Justice, as before the signing of the Lisbon Treaty not all provisions of secondary legislation were interpretable (in particular, visas, asylum, immigration and other policies related to the movement of persons). on the constitutionality of the Treaties, although their form and content have become even more similar to constitutional acts, without losing a clear functional statement of provisions. Since then, the case law of the Court of Justice has been characterized by a variety of methods of interpretation, and European doctrine by publications that have re-substantiated the system of methods and paid more attention to their detailed analysis, making each of these methods autonomous and collectively interchangeable.

Comparative Company Law

2019 ◽  
Author(s):  
Carsten Gerner-Beuerle ◽  
Michael Anderson Schillig
Keyword(s):  
Legal Theory ◽  
Case Law ◽  
Company Law ◽  
Legal Capital ◽  
Public And Private ◽  
Business Corporation ◽  
Shareholder Protection ◽  
The Law ◽  
The Uk ◽  
The Eu

This book provides an exposition of company law from a comparative perspective. It analyses important policy issues in the area of company law, including the emergence and nature of the business corporation, EU company law, incorporation and corporate representation, agency problems in the firm, rights of stakeholders and shareholders, minority shareholder protection in corporate control transactions, legal capital, and piercing the corporate veil, as well as corporate insolvency and restructuring law. The book’s main focus is the law of public and private companies in the common law sense (the law of partnerships is referred to and taken into account as necessary). The book’s analysis encompasses the corporate laws of the US, the UK, Germany, and France, as well as the legislative measures adopted by the EU and the relevant case law of the Court of Justice of the EU. It includes edited and, where necessary, translated extracts from leading company case law. The cases are discussed and interpreted in the context of the national and European regulatory frameworks and in light of economic and legal theory, as well as legal history.

The Concept of Europeanization and Possibilities of its Application to the Analysis of Ukraine-EU Relations

2017 ◽  
pp. 149-160
Author(s):  
Natalia Popova
Keyword(s):  
European Integration ◽  
Theoretical Research ◽  
Member States ◽  
External Governance ◽  
Definition Of ◽  
The Relationship ◽  
Eu Studies ◽  
The Eu

The concept of Europeanization has become quite fashionable in EU studies in recent years. It is often used for the analysis of the relations between the EU and non-member states. The aim of the article is to examine the possibilities of its application in explaining the relationship between the EU and Ukraine. The structure of the article is as follows: firstly, the concept of Europeanization is defined considering such two disputable issues as distinguishing among concepts of Europeanization and European integration as well as Europeanization and EU-ization. Next, the evolution of the theoretical research of Europeanization and definition of this concept are analyzed. Two main mechanisms of Europeanization (conditionality and socialization) are examined. The author considers main approaches to the analysis of the "external" Europeanization emphasizing the concept of "external governance". Three groups of factors which influence the effectiveness of Europeanization are briefly analyzed. And finally, the peculiarities of application of the Europeanization concept to the Ukraine-EU relations are outlined. Keywords: EU, Ukraine, Europeanization, EU-ization, ‘external’ Europeanization, conditionality, socialization, concept of ‘external governance’

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
pp. 1023263X2198824
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Judicial review of Common Foreign and Security Policy by the ECtHR and the (re)negotiation on the accession of the EU to the ECHR

2021 ◽  
Vol 28 (3) ◽  
pp. 356-370
Author(s):  
Maria José Rangel de Mesquita
Keyword(s):  
Judicial Review ◽  
Security Policy ◽  
Case Law ◽  
Regional Level ◽  
Judicial Control ◽  
National Courts ◽  
Foreign And Security Policy ◽  
Conclusion Section ◽  
The Relationship ◽  
The Eu

The article addresses the issue of judicial control of the implementation of Common Foreign and Security Policy at international regional level within the framework of the relaunching of the negotiation in view of the accession of the EU to the ECHR. Considering the extent of jurisdiction of the CJEU in respect of Common Foreign and Security Policy field in the light of its case law (sections 1 and 2), it analyses the question of judicial review of Common Foreign and Security Policy within international regional justice by the ECtHR in the light of the ongoing negotiations (section 3), in the perspective of the relationship between non-national courts (section 3.A), having as background the (2013) Draft Agreement of accession (section 3.B.1). After addressing the relaunching of the negotiation procedure (section 3.B.2) and the issue of CFSP control by the ECtHR according to the recent (re)negotiation meetings (section 3.B.3), some concrete proposals, including for the redrafting of the accession agreement, will be put forward (section 3.B.4), as well as a conclusion (section 4).

Zur Frage der doktrinellen Auslegung des Artikels 61 Pkt. 3 der Verfassung der Republik Kasachstan

2021 ◽  
Vol 67 (2) ◽  
pp. 133-144
Author(s):  
Ermek B. Abdrasulov
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legal Norms ◽  
The Law ◽  
The Republic ◽  
Definition Of ◽  
The Relationship ◽  
National Business

This article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts "the most important public relations", "all other relations", "subsidiary legislation", as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of p. 4 of Article 61 of the Constitution in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate "unimportant" public relations. The law is essentially aimed at regulating all important social relations.

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