scholarly journals Harmonization of EU law on cross-border movement of companies

2020 ◽  
Vol 58 (3) ◽  
pp. 81-116
Author(s):  
Tatjana Jevremović-Petrović
Keyword(s):  
Legal Framework ◽  
Business Environment ◽  
Company Law ◽  
Minority Shareholders ◽  
Applicable Law ◽  
Market Participants ◽  
Cross Border ◽  
European Court ◽  
And Control ◽  
First Time

In this paper the author presents an overview of the EU legal framework for cross-border company's mobility. It gives a historic background to various obstacles related to cross-border mobility and puts it into the context of the European Court of Justice decisions on the various issues of right of establishment. EU Company Law Directive on Cross-border Mobility regulates cross-border conversions (resulting in the change of applicable law and at least registered seat of the company) and cross-border divisions for the first time. It also improves already existing regime for cross-border mergers. Directive on CrossBorder Mobility gives an opportunity for various internal market participants, including economically strong as well as smaller business forms to use advantages of predictable, efficient legal procedure to perform cross-border operations. It includes various harmonization instruments in order to protect interests of (minority) shareholders, creditors and employees. Double control, including issuance of the pre-merger certificate in the country of origin and control of the procedure in the destination country before cross-border procedure has been registered and becomes effective provides for optimal co-ordination of national authorities, and offers safe business environment for various market participants.

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.

Grenzüberschreitender Formwechsel

2020 ◽  
Author(s):  
Mike Karl Schmidt
Keyword(s):  
Case Law ◽  
Company Law ◽  
Practical Implementation ◽  
Legal Certainty ◽  
Commercial Law ◽  
High Expectations ◽  
Applicable Law ◽  
Cross Border ◽  
The Cross ◽  
First Time

Can the long-awaited Company Law Package fulfill the high expectations and the need for legal certainty for the cross-border conversion? The aim of this dissertation is to examine the Company Law Package in detail by analyzing European and German case law and taking into account the (still) applicable law regarding the cross-border conversion. This analysis can be divided into two central facets: 1. The Digitalization Directive will be evaluated under commercial law publicity in order to determine whether the "bridging" between the registers of the country of departure and the country of immigration succeeds which is essential for the cross-border conversion. 2. The Mobility Directive provides a procedural regime for the first time that is being examined with regard to its current practical implementation.

scholarly journals EU-US Digital Data Exchange to Combat Financial Crime: Fast is the New Slow

2018 ◽  
Vol 19 (5) ◽  
pp. 1251-1267 ◽  
Author(s):  
Els De Busser
Keyword(s):  
Data Exchange ◽  
Legal Framework ◽  
Company Law ◽  
Digital Data ◽  
Digital Evidence ◽  
Criminal Prosecution ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Cross Border ◽  
Digital Nature

AbstractCriminal offenses with the most different modi operandi and levels of complexity can generate digital evidence, whether or not the actual crime is committed by using information and communication technology (ICT). The digital data that could be used as evidence in a later criminal prosecution is mostly in the hands of private companies who provide services on the Internet. These companies often store their customers’ data on cloud servers that are not necessarily located in the same jurisdiction as the company. Law enforcement and prosecution authorities then need to take two steps that are not exclusive for evidence of a digital nature. First, they need to discover where the data is located—with which company and in which jurisdiction. Second, they need to obtain the data. In considering digital evidence, the last step, however, is complicated by new issues that form the focus of this paper. The first concern is the practice by companies to dynamically distribute data over globally spread data centers in the blink of an eye. This is a practical concern as well as a legal concern. The second issue is the slowness of the currently applicable international legal framework that has not yet been updated to a fast-paced society where increasingly more evidence is of a digital nature. The slowness of traditional mutual legal assistance may be no news. The lack of a suitable legal framework for competent authorities that need to obtain digital evidence in a cross-border manner, nonetheless, creates a landscape of diverse initiatives by individual states that try to remedy this situation. A third issue is the position that companies are put in by the new EU proposal to build a legal framework governing production orders for digital evidence. With companies in the driver's seat of a cross-border evidence gathering operation, guarantees of the traditional mutual legal assistance framework seem to be dropped. A fourth issue is the position of data protection safeguards. US based companies make for significant data suppliers for criminal investigations conducted by EU based authorities. Conflicting legal regimes affect the efficiency of data transfers as well as the protection of personal data to citizens.

scholarly journals Defamation on Social Media

2021 ◽  
Vol 5 (1) ◽  
pp. 121-134
Author(s):  
Sandra Sakolciová
Keyword(s):  
Social Media ◽  
International Law ◽  
Case Law ◽  
Legal Framework ◽  
Status Quo ◽  
Private International Law ◽  
Online Environment ◽  
Negative Effects ◽  
Applicable Law ◽  
Cross Border

There is no doubt that social media have become a very important part of many people’s everyday life. The consequences of their usage is an increased engagement in defamation, most likely due to the aspect of anonymity present in the online environment. Such cross-border (or more precisely border-less) defamation raises difficult challenges in terms of jurisdiction and applicable law. These challenges, which will be analysed in more detail in the article, remain unresolved up until today. Moreover, negative effects occur not only within private international law itself, but status quo significantly influences the exercise of basic human rights, too. Besides analysing the existing EU legal framework and applicable case-law, the article also looks into the possible alternatives.

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.

Part III Prospectus Liability and Litigation, 19 Prospectus Liability: Competent Courts of Jurisdiction and Applicable Law

2020 ◽  
Author(s):  
Gargantini Matteo
Keyword(s):  
Legal Framework ◽  
Eu Law ◽  
Applicable Law ◽  
Cross Border ◽  
Prospectus Liability

This chapter addresses the European legal framework for cross-border disputes arising from alleged violations of prospectus rules. It deals with the identification of both jurisdiction and applicable law in cases where litigation involves transnational elements, so that a conflict may occur about who is the judge having jurisdiction and what law is this judge bound to apply. Crucial in both respects are, in the first place, the connecting factors to which EU law refers to and, in the second place, the rules concerning issuers' and investors' ability to deviate from such rules. The chapter asserts that the importance of these rules can hardly be overestimated. However, not all courts are equal, and neither are national laws, and the chapter shows these differences affect the topic at hand.

scholarly journals Cross-Border Mergers and Acquisitions in Light of the European Legal Framework

2021 ◽  
Vol 18 (1-2) ◽  
pp. 1-12
Author(s):  
Leen Bakerjian
Keyword(s):  
European Union ◽  
Mergers And Acquisitions ◽  
Global Economy ◽  
Legal Framework ◽  
The European Union ◽  
Freedom Of Establishment ◽  
Cross Border ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Cross

This paper will discuss the role that Mergers and Acquisitions play in the global economy. It will deliberate on the challenges, benefits and issues of the implementation of these transactions in terms of legality, society and culture. It also contains an empirical enquiry that investigates the application of Mergers and Acquisitions in the presence of different social and cultural working environments. It also demonstrates attempts of entering into such transactions with incorrect intentions such as domination and the negative outcomes of such approach. Throughout this work, I will investigate the legal instruments governing these types of transactions in different areas of the world, specifically the European Union. It will touch on the legal instruments governing Mergers and Acquisitions in the European Union and will challenge the applicability of the fundamental freedoms of the European Union in light of the cross-border Mergers and Acquisitions directives. The paper will challenge the European Court of Justice’s approach to the Freedom of Establishment and the application of cross-border M&As. Finally, a clear demonstrateion of the fallbacks of the provisions of the Cross-Border Mergers Directives is provided as well as challenging the European legislature’s choices in drafting said directives. Unusual discrepancies between the directives and the fundamental freedoms of the European Union are shown, however these two which must always be in line with one another.

scholarly journals The Curve Of Cross Border Cartel Enforcement (Challenges and Remedies in Global Business Environment)

2020 ◽  
Vol 6 (1) ◽  
pp. 73-86
Author(s):  
Shahzada Aamir Mushtaq ◽  
Fraz Ashraf Khan
Keyword(s):  
Economic Growth ◽  
Legal Framework ◽  
Business Environment ◽  
Relevant Market ◽  
Economic Market ◽  
Global Business ◽  
Playing Field ◽  
Cross Border ◽  
Industrial Sectors ◽  
The Cross

The purpose of this article stated that the global economic arena has taken new insights across the shore of nations.  THE new economic challenges are waiting for the anti-trust enforcers to make sure strict compliance with the antitrust laws and in addition this dissertational work highlights the incipient violations across the borders and suggests its possible legel outcoms in the near future in order to make the economic market a level playing field for any business entrants. It particularly shed light on the cross border cartels and their effects on the relevant market, additionally we have taken the global view of the legislative aspects along with their de jure appliances and improvements for the proper economic growth under the auspices of legal framework. The ramification of cross border cartel enforcement has surfaced astoundingly between 1998 to 2015, underlining the earnest and prompt action to strengthen and revisit the competition law enforcement tools and proficiency. The technological advancements and liberalization of trade has risen significant challenges which includes the enforcement of cross border cartels and mergers. The globalization of corporate activities and deregulation of business markets and numerous industrial sectors has endangered the theoretical foundation of domestic and international competition enforcement regime. The transnational anticompetitive practices like monopolization of markets, collusive price fixing, vertical restraints of trade and international cartels currently challenged the jurisdiction and policies of OECD, WTO, UNCTAD, and ICN. This frightening situation necessarily be regularized by establishing worldwide competition policy and globally admirable enforcement standard. The weaknesses of unilateral, bilateral, and multilateral compacts be re-examined in order to cope with the cross- border competition challenges efficaciously. The extraterritorial, jurisdictional, and investigative mechanisms could be enclosed with binding nature of legal structures to deter cross border antitrust violations for smooth economic growth. The EU and US actively pursuing to establish the unanimous international antitrust regime instead of discrepancies to integrate WTO and ICN being multilateral cooperation forum. Currently, US, CANADA, EU, JAPAN and CHINA across the globe become more engaged in international cartels evidence gathering and investigations. The developments in information sharing, private enforcement, follow on civil litigation, dawn raids, extraterritorial reach of enforcement watchdog is yet to be established.

scholarly journals Transboundary spread of peste des petits ruminants virus in western China: A prediction model

PLoS ONE ◽  
2021 ◽  
Vol 16 (9) ◽  
pp. e0257898
Author(s):  
Shan Gao ◽  
GuoYong Xu ◽  
Zan Zeng ◽  
JiaNing Lv ◽  
LiYa Huang ◽  
...  
Keyword(s):  
Research Area ◽  
Western China ◽  
Peste Des Petits Ruminants ◽  
Least Cost Path ◽  
Effective Prevention ◽  
Maxent Model ◽  
Cross Border ◽  
Foreign Countries ◽  
And Control ◽  
First Time

In pan Pamir Plateau countries, Peste des petits ruminants (PPR) has brought huge losses to the livestock industry and threaten the endangered wildlife. In unknown regions, revealing PPRV transmission among countries is the premise of effective prevention and control, therefore calls for quantified monitoring on disease communication among countries. In this paper, a MaxEnt model was built for the first time to predict the PPR risk within the research area. The least cost path (LCP) for PPR transboundary communication were calculated and referred to as the maximum available paths (MAP). The results show that there are many places with high-risk in the research area, and the domestic risk in China is lower than that in foreign countries and is mainly determined by human activities. Five LCPs representing corridors among Kazakhstan, Tajikistan, Pakistan, India and China were obtained. This study proves for the first time that there is the possibility of cross-border transmission of diseases by wild and domestic animals. In the future, it will play an important role in monitoring the PPR epidemic and blocking-up its cross-border transmission.

Reincorporations: a comparison between Greek and Cyprus law

2018 ◽  
Vol 60 (3) ◽  
pp. 901-919
Author(s):  
Thomas Papadopoulos
Keyword(s):  
Careful Analysis ◽  
Legal Framework ◽  
Company Law ◽  
Comparative Approach ◽  
Private International Law ◽  
Content Type ◽  
Applicable Law ◽  
Incorporation Theory ◽  
Real Seat ◽  
Practical Implications

Purpose This paper aims to analyse the legal framework of reincorporations and subsequent change of applicable law in Greece and Cyprus. A comparison between Greek Law and Cyprus Law is drawn. This paper highlights possible required reforms. Cyprus has a quite detailed legal framework of voluntary inbound and outbound reincorporations. While Greece has certain provisions on outbound reincorporations, it does not have any provisions on inbound reincorporations. The compatibility of these national provisions with internal market rules, as interpreted by the case law of the Court of Justice of the EU (CJEU), is discussed. Design/methodology/approach This paper follows a comparative approach. After a careful analysis of each national legal framework, a comparison between Greek law and Cyprus law follows. This paper also follows an EU law approach. Findings These two jurisdictions present some differences. Cyprus adopting the incorporation theory has a detailed, sophisticated and flexible legal framework of reincorporations. Although Greece adopting the real seat theory has some special provisions for outbound reincorporations, there are no specific provisions for inbound reincorporations. Inbound reincorporations are possible under Greek law, but the absence of detailed provisions is against legal certainty. Cyprus law on reincorporations could be used as an example for Greek legislature. However, possible EU harmonisation of seat transfers is expected to have an immense impact on national provisions for reincorporations. Practical implications Reincorporations constitute a significant corporate restructuring technique with important practical implications on the economy. Apart from academics, this paper attracts the interest of lawyers, managers, accountants, officers of supervisory and regulatory bodies and policymakers engaged with reincorporations. Originality/value This is one of the few academic papers comparing Greek and Cyprus company law and private international law. It is the first paper that compares the Greek and Cyprus legal framework of reincorporations.

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