The Alleged Case of Golden Shares in Montenegro: A Candidate Country’s Experience as an Incentive for Including Acta Jure Gestionis within the Range of Restrictions on Free Movement of Capital

2016 ◽  
Vol 41 (2) ◽  
pp. 117-156 ◽  
Author(s):  
Vladimir Savkovic
Keyword(s):  
Case Law ◽  
Free Movement ◽  
Golden Shares ◽  
Special Rights ◽  
Free Movement Of Capital

The aim of this article is to demonstrate the potential of certain acta jure gestionis to restrict the free movement of capital by way of establishing so-called “golden shares” (i.e., special rights). To that end, a Montenegrin case study is used, since it displays that a privatization contract and the subsequent shareholder’s agreement – typically jure gestionis acts – may be utilized to perpetuate a state’s influence over a privatized company in a manner equally efficient as that of certain jure imperii acts, which were found by the cjeu to represent impermissible restrictions on the free movement of capital. Finally, in view of the Montenegrin case study and the examined case law, arguments are offered and the conclusion is made that the cjeu should essentially adopt the same approach with regard to each of the two types of legal instruments utilized by states to secure their influence over privatized companies.

Recent Golden Share Cases in the Jurisprudence of the Court of Justice of the European Union

2015 ◽  
Vol 16 (5) ◽  
pp. 1099-1130 ◽  
Author(s):  
Tamás Szabados
Keyword(s):  
European Union ◽  
Case Law ◽  
Free Movement ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Member States ◽  
Golden Share ◽  
Court Of Justice ◽  
Special Rights ◽  
Free Movement Of Capital

AbstractIn several golden share cases, the Court of Justice of the European Union (the “Court”) condemned Member States for reserving certain special rights in privatized companies for themselves. In spite of the Court's consistently strict approach in the golden share cases, the more recent golden share judgments demonstrate that the Court's practice is not free from uncertainties. In its case law, the Court seems to hesitate between the application of the freedom of establishment and the free movement of capital. Additionally, it is not entirely clear which measures are caught by provisions on the freedom of establishment and the free movement of capital.

The Scope of the EU Treaty-Making Power on Foreign Investment: Between Wishful Thinking and Pragmatism

2016 ◽  
pp. 86-115
Author(s):  
Luis M. Hinojosa-Martínez
Keyword(s):  
European Union ◽  
Foreign Investment ◽  
Trade Agreement ◽  
Case Law ◽  
Free Movement ◽  
The European Union ◽  
Lively Debate ◽  
The Common ◽  
Free Movement Of Capital ◽  
The Eu

Since the Treaty of Lisbon introduced ‘foreign direct investment’ into the provisions on the common commercial policy of the European Union (EU), the scope of that competence has raised a lively debate. Much less attention, however, has been paid to the rules on the free movement of capital in the Treaty on the Functioning of the European Union, although this area is highly relevant to clarify the blurred boundaries of the EU’s competence concerning foreign investment. This article reviews arguments from the chapter on the free movement of capital and from the recent European practice and case-law to shed light on the debate about the competence on foreign investment. It also depicts the circumstances in which the Court of Justice has to deliver its Opinion on the EU competence to sign and conclude the EU-Singapore Free Trade Agreement.

15. Free movement of capital

2017 ◽  
Author(s):  
Leo Flynn
Keyword(s):  
Public Interest ◽  
Capital Flows ◽  
Case Law ◽  
Free Movement ◽  
Capital Movement ◽  
Member States ◽  
The Public ◽  
Charitable Activities ◽  
Free Movement Of Capital ◽  
Different Parts

This chapter discusses EU law on the free movement of capital. It first considers the development of the current rules on capital, focusing on their material scope, direct effect, and role in relation to third countries. It then explains how the concept of restrictions, which is a feature of all internal market freedoms, operates in relation to capital. Next, it deals with the power of Member States to limit capital flows between different parts of the Union, as well as into and out of the Union. Finally, it examines the effects of case law regarding capital movement in relation to philanthropic and charitable activities, in order to see how the free movement of capital affects the ability of Member States to design the instruments by which they organize the delivery of services they consider are in the public interest.

scholarly journals Obrót nieruchomościami rolnymi w świetle traktatowej swobody przepływu kapitału – rozważania na gruncie orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej

2020 ◽  
pp. 37-46
Author(s):  
Beata Włodarczyk
Keyword(s):  
European Union ◽  
National Level ◽  
Case Law ◽  
Free Movement ◽  
General Interest ◽  
The European Union ◽  
Member States ◽  
Eu Member States ◽  
Court Of Justice ◽  
Free Movement Of Capital

The aim of the article is to outline the legal issues of trading in agricultural property in the European Union, which is entirely subject to basic treaty rules. The free movement of capital, regulated in Article 63 of the Treaty on the Functioning of the European Union, is of particular importance in relation to cross-border operations connected with trading in agricultural property. Therefore the legislation in force and applicable in EU Member States should ensure that citizens of other Member States have the possibility of exercising this freedom. However, the free movement of capital is not absolute. In the light of the established case-law of the Court of Justice of the European Union, regulations limiting free movement of capital may be introduced at national level, provided that they pursue general interest objectives and comply with the principles of proportionality and non-discrimination.

scholarly journals Who is Against Sino-African Relations? Evolving Perceptions on Chinese Engagement in Kenya

2020 ◽  
Vol 02 (02) ◽  
pp. 2050011
Author(s):  
Sammy Mwangi Waweru
Keyword(s):  
Capital Flow ◽  
Free Movement ◽  
Small Scale ◽  
Host Countries ◽  
Ordinary Citizen ◽  
Distributional Consequences ◽  
Rise Of China ◽  
Trade And Investment ◽  
Free Movement Of Capital

Rise of China and increased Chinese engagement across the globe, have attracted mixed and varied reactions of approval and disapproval in a number of host countries. Against this background, this study brings into perspective rise of anti-Chinese sentiments in Africa, with a Kenyan case study, examining who, why and where anti-Chinese sentiments are most prevalent. The study finds anti-Chinese sentiments being most prevalent among Kenya’s small scale traders who have been displaced by Chinese capital flow and trade in the country. The finding is contextualized within broader framework of globalization and its resultant effects on free movement of capital, trade and investment. More precisely, Chinese capital flow and trade have had distributional consequences of winners and losers with potential to displace Kenya’s small scale traders hence the rise of anti-Chinese sentiments. The anti-Chinese sentiments are equally evident among section of Kenya’s politicians and intelligentsia, who have questioned the viability of Chinese built infrastructure. Further, anti-Chinese sentiments have been found among ordinary citizens who have experienced, albeit isolated, incidences of Chinese misconducts in the country. Notwithstanding these negative reactions, Chinese engagement in Kenya is still pronounced and has popular support from government, general citizenry and among classes of Kenyan who have benefited from Chinese involvement in the country. The segmented nature of anti-Chinese sentiments has not been strong enough to undo general goodwill, attitude and perceptions, that ordinary citizen hold towards Chinese engagement in Kenya.

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.

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