European Court of Justice Jurisprudence in the Field of Avoidance Actions with International Elements for Filling the Insolvency Estate

2020 ◽  
Vol 26 (2) ◽  
pp. 205-210
Author(s):  
Yordanka Noneva-Zlatkova
Keyword(s):  
National Level ◽  
European Court Of Justice ◽  
Border Effect ◽  
Applicable Law ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court ◽  
The Subject ◽  
Insolvency Proceedings

AbstractWith the development of the internal market, the need to establish rules ensuring the protection of creditors in insolvency proceedings with a cross-border effect is increasing. Mechanisms at national level are difficult to provide the desired protection for foreign creditors. Since 26.06.2017 EU has a new Regulation 848/2015 which repeals the current Regulation 1346/2000. Despite the radical changes, it is attempting to implement this legislative act, the main objective of insolvency proceedings remains unchanged, namely, to achieve fair satisfaction of creditors. One of the mechanisms for the realisation of this objective are avoidance actions with international element for filling the insolvency estate. In view of the specifics of the procedure, the standard civil law mechanisms such as the Actio Pauliana are not impossible but are extremely inadequate and difficult to prove. In the practice of the Member States, many issues arise concerning the determination of jurisdiction and applicable law, creation of preconditions for the abuse in searching the most favourable legal system (forum shopping), there are differences in the so-called ‘suspicious periods’ and transactions concluded with affiliates. On this basis a fundamental jurisprudence of the CJEU has been enacted, the achievement of which will be the subject of this paper.

The Judicial Control of a Cross-Border Merger approved by means of an abusive resolution

2021 ◽  
Vol 18 (5) ◽  
pp. 773-793
Author(s):  
Andrés Recalde-Castells ◽  
Antonio Roncero-Sánchez
Keyword(s):  
Company Law ◽  
European Court Of Justice ◽  
Freedom Of Establishment ◽  
Judicial Control ◽  
Applicable Law ◽  
Appeal Court ◽  
Judicial Decisions ◽  
Cross Border ◽  
Court Of Justice ◽  
European Court

The fight for the control of the Mediaset group has given rise to several judicial decisions issued in various national jurisdictions and even by the European Court of Justice. Three orders of Spanish Courts have been of particular interest. Two of them were issued by a Commercial Court in Madrid and the third one was issued on appeal by the Provincial Appeal Court Madrid. They instructed the suspension of the shareholders meeting resolutions of the Spanish Mediaset company approving a cross-border merger. The content of this resolution was to approve the acquisition of the Spanish company by another company domiciled in the Netherlands thus changing the applicable law. The resolution approving the merger was presumed (provisionally) to be abusive and, eventually, null and void. The decisions of the Spanish Court were grounded on the fact that the articles of association of the resulting Dutch company would be detrimental to the minority in the Spanish company. This limits the freedom of establishment (Art. 49 TFEU) and is based on a multilevel scrutiny, resulting from the national laws applicable to each company that participates in the merger. Those judicial decisions handled with other issues of interest in company law, such as the conclusive effect of the registration of a cross-border merger, the legitimation of the minority to challenge shareholders resolutions, or the effects of a shareholders meeting resolution replacing a previous merger resolution that has been challenged before the courts.

scholarly journals Selective Fiscal Measures and the Definition of the Relevant Reference Framework in the Light of Cases C‑106/09 P, Commission v Gibraltar and C‑203/16 P, Heitkamp BauHolding v Commission

2020 ◽  
Vol 13 (2) ◽  
pp. 64-75
Author(s):  
Hanna-Mari Immonen
Keyword(s):  
Reference System ◽  
European Court Of Justice ◽  
Tax System ◽  
Reference Framework ◽  
Court Of Justice ◽  
European Court ◽  
Relevant Reference ◽  
Definition Of ◽  
State Aids

This article examines fiscal State aids and the selectivity condition. Assessing the selectivity is relatively complex in tax matters since it involves the analysis of the general tax system in which the regime under review applies. The focus of this article is on the selectivity analysis and the analysis of the general tax system i.e. the determination of the relevant reference framework. The definition of the relevant reference framework is still open to various interpretations despite the fact that the European Court of Justice has examined selectivity issues in several cases in the 2000s. The Gibraltar judgement has materially broadened the interpretation of the selectivity condition and the application of Article 107(1) TFEU. The Heitkamp BauHolding judgment confirms the interpretation adopted in the Gibraltar judgement, but also defines the scope of Article 107(1) TFEU in more detail. Yet the offset of the selectivity assessment i.e. the determination of the relevant reference system is still receptive to various interpretations.

Statut ochrony dóbr osobistych w ustawie – Prawo prywatne międzynarodowe – wybrane zagadnienia

2019 ◽  
Vol 78 ◽  
pp. 386-401
Author(s):  
Nikodem Rycko
Keyword(s):  
Legal System ◽  
European Court Of Justice ◽  
Applicable Law ◽  
Personality Rights ◽  
Court Of Justice ◽  
European Court ◽  
Personal Rights ◽  
The Law

Law applicable to the protection of the rights of personality rights is regulated by a method of alternative indication with two equivalent connecting factors. The interpretation of these criteria – the place of the infringement of personal rights and the place where the damage occurred – may cause difficulties. The interpretation given by the European Court of Justice in the cases of Shevill and eDate Martinez seems to be the first to be taken into account, although exceptions should be admitted in justified cases. If the effects of infringement of the rights of personality occur in the territory of many states, it is to be assumed that the damage existing in each of them is governed by its legal system. However, this mosaic principle should only be applied where the person requesting the protection indicates the applicable law of the place of effect. If the law of the place of the infringement of personal rights is indicated, the norms of one legal system should be applied.

3. The EU’s Institutions

2015 ◽  
Author(s):  
Richard Corbett ◽  
John Peterson ◽  
Daniel Kenealy
Keyword(s):  
European Commission ◽  
National Level ◽  
European Parliament ◽  
Power Sharing ◽  
European Court Of Justice ◽  
European Council ◽  
Court Of Justice ◽  
European Court ◽  
Council Of Ministers ◽  
The Eu

This chapter examines five of the European Union's key institutions: the European Commission, the Council of Ministers, the European Council, the European Parliament, and the European Court of Justice. It draws analogies to these institutions' counterparts at the national level while also highlighting their distinct and unique features. It discusses the structures and formal powers of the five EU institutions and how they ‘squeeze’ influence out of their limited Treaty prerogatives. It concludes by explaining why these institutions matter in determining EU politics and policy more generally, focusing on three central themes: the extent to which the EU is an experiment in motion; the importance of power sharing and consensus; and the capacity of the EU structures to cope with the Union's expanding size and scope.

The Wall Around EU Fundamental Freedoms: the Purely Internal Rule at the Forty-Year Mark

2019 ◽  
Vol 38 ◽  
pp. 153-219
Author(s):  
Amedeo Arena
Keyword(s):  
Member State ◽  
European Integration ◽  
Internal Market ◽  
European Court Of Justice ◽  
Integration Process ◽  
Cross Border ◽  
Fortieth Anniversary ◽  
Court Of Justice ◽  
European Court ◽  
Fundamental Freedoms

Abstract ‘Purely internal situations’ are sets of facts entirely confined within a single Member State. According to the ‘purely internal rule’, introduced by the European Court of Justice (ECJ) in 1979, purely internal situations lie outside the scope of the internal market fundamental freedoms and of other EU provisions having a cross-border scope. On the fortieth anniversary of the jurisprudential genesis of the purely internal rule, this article seeks to examine its origins, rationale, and evolution, by analyzing the most relevant patterns in the over 250 preliminary rulings handed down in disputes involving purely internal situations. This survey will enable an assessment of the systemic significance of the purely internal rule and of the consequences that abolishing that rule would have for the European integration process.

scholarly journals Exploring the Links between Residence and Social Rights for Economically Inactive EU Citizens

2019 ◽  
Vol 21 (3) ◽  
pp. 313-337 ◽  
Author(s):  
Sandra Mantu ◽  
Paul Minderhoud
Keyword(s):  
National Level ◽  
Social Assistance ◽  
European Court Of Justice ◽  
Social Benefits ◽  
Social Rights ◽  
Member States ◽  
Permanent Residence ◽  
Court Of Justice ◽  
European Court ◽  
Assistance Systems

Abstract This article examines the links between residence and social rights in the context of EU citizens’ mobility. It builds on national replies to a questionnaire concerning the implementation and application of Directive 2004/38 at the national level. Our focus is on how the EU28 are implementing the provisions on social assistance for economically inactive EU citizens, including five relevant European Court of Justice (ECJ) judgments in this area (Brey, Dano, Alimanovic, Garcia-Nieto and Commission v UK) and the provisions on permanent residence status. Based on the national replies we argue that asking for social benefits becomes a first step towards being considered by the administration as an unreasonable burden, which leads to the termination of EU residence rights. Our analysis shows that asserting and maintaining residence rights under Articles 7 and 16 of Directive 2004/38 is becoming problematic for certain categories of EU citizens and linked with the more restrictive position taken by some Member States in relation to accessing their national social assistance systems.

scholarly journals The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core

2018 ◽  
Vol 14 (2) ◽  
pp. 332-368 ◽  
Author(s):  
Maja Brkan
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Court Of Justice ◽  
European Court ◽  
Multi Level ◽  
Principle Of Proportionality ◽  
The Eu

Essence of fundamental rights – Article 52(1) of the Charter – Multi-level protection of fundamental rights in Europe – Sources of essence – European Court of Justice case law on ‘very substance’ of fundamental rights – Constitutional traditions common to the Member States – European Court of Human Rights – Court of Justice of the EU – Schrems – Principle of proportionality – Absolute theory – Relative theory – Classification of interferences with essence – Objective interference – Subjective interference – Absolute rights – EU methodology for determination of interference with essence

scholarly journals La precisión del lugar habitual de trabajo como foro de competencia y punto de conexión en los reglamentos europeos = The determination of the habitual place of work as jurisdiction rule and as connecting point in the European regulations

2018 ◽  
Vol 10 (2) ◽  
pp. 477
Author(s):  
José Luis Iriarte Ángel
Keyword(s):  
European Union ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
European Regulations ◽  
Para Determinar ◽  
Jurisdiction Rule

 Resumen: La finalidad de este trabajo es identificar y analizar los indicios que las autoridades judiciales de la Unión Europea utilizan para determinar el lugar habitual de trabajo, como foro de com­petencia judicial internacional y como punto de conexión, en los casos en que el mismo es impreciso, porque el trabajador realiza sus funciones en varios países. También se estudian los principales índices que la jurisprudencia europea ha rechazado o aquellos cuya utilidad ha matizado. El estudio es eminen­temente casuístico y se articula a través de las sentencias del TJUE y las conclusiones de los distintos Abogados Generales.Palabras clave: contrato de trabajo internacional, precisión del lugar habitual de trabajo, método indiciario, indicios empleados por la jurisprudencia, indicios matizados, indicios rechazados.Abstract: The purpose of this paper is the identification and analysis of the indicia used by the judicial authorities of the European Union to determine the habitual place of work, as forum of interna­tional jurisdiction and as connecting point, in cases where it is diffuse because the employee performs his duties in several countries. It will also be analyzed the main indicia rejected by the European Court of Justice, or those whose usefulness has been qualified. This work is mainly casuistic and it is framed through the judgments of the ECJ and the conclusions of different General Advocates.Keywords: international employment contract, accuracy of the habitual place of work, circumstan­tial method, indicia used by the Case Law, nuanced indicia, rejected indicia.

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