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

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.

COVID-19 measures and human rights guaranteed by the Japanese Constitution

Since March 2020, the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response has been a significant statute in dealing with COVID-19 in Japan. The Act mandates requests, instructions and orders for business suspension and shortened business hours, as well as stay-at-home requests. These measures limit freedom of movement and establishment, guaranteed rights under the Japanese Constitution. This article poses the following research question: “Does the Japanese Constitution allow measures against COVID-19 such as requests, instructions and orders for business suspension and shortened business hours, and stay-at-home requests?” It also asks: “Are measures with penalties allowed by the Constitution?” given the fact that the penalties were introduced in February 2021. This paper introduces constitutional concepts that guarantee or limit individual freedom. Concepts that guarantee individual freedoms include freedom of establishment and movement. These freedoms derive from the constitutional values of freedom to choose one’s occupation and choose and change one’s residence (Art. 22) and the right to own or hold property (Art. 29). Concepts that limit individual freedom include the right to life (Art. 13), welfare rights and public health (Art. 25), and public welfare (Art. 13). Individual freedom that threatens right to life, welfare rights and public health, and public welfare may not be guaranteed. This paper argues that the Constitution allows the measures against COVID-19 limiting freedom of establishment and movement from the perspectives of the right to life, welfare rights, public health, and public welfare, and the government is responsible for reducing the risk to life from COVID-19. It also argues that the Constitution permits measures with penalties, while proportionality needs to be considered.

The concept of abuse in tax matters within European Union law

The principle of prohibition of abuse of rights is applicable in fields as varied as the free movement of goods (judgment of 10 of January 1985, Association des Centres distributeurs Leclerc and Thouars Distribution, Case 229/83), freedom to provide services (judgment of 3 of February 1993, Veronica Omroep Organisatie, Case C‑148/91), public service contracts (judgment of 11 of December 2014, Azienda sanitaria locale n. 5 Spezzino and Others, Case C‑113/13), freedom of establishment (judgment of 9 of March 1999, Centros, Case C‑212/97), company law (judgment of 23 of March 2000, Diamantis, Case C‑373/97), social security (judgments of 2 of May 1996, Paletta, Case C‑206/94; of 6 of February 2018, Altun and Others, Case C‑359/16; and of 11 of July 2018, Commission v Belgium, Case C‑356/15), transport (judgment of 6 of April 2006, Agip Petroli, Case C‑456/04), social policy (judgment of 28 of July 2016, Kratzer, Case C‑423/15), restrictive measures (judgment of 21 of December 2011, Afrasiabi and Others, Case C‑72/11) and value added tax (judgment of 21 of February 2006, Halifax and Others, Case C‑255/02) and, in that sense, the EU principle of prohibition of abuse of law has been developing within the jurisprudence of the Court of Justice of the European Union since the mid-1970s, addressing it in multiple ways, not only in the face of different factual assumptions, which would be understandable and even necessary but, in its evolution, treating asymmetrically the handling of the requirements that must be met to reach the conclusion of the existence of practices abusive.

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

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.

2. The framework of company law

This chapter outlines the statutory framework of company law and the reforms put forward by the Company Law Review which were implemented by the Companies Act 2006 (CA 2006). Registered companies in the UK are governed by the CA 2006 and its predecessors. The remainder of the chapter covers the European framework of company law considering the harmonisation programme, simplification measures, and the modernisation Directives. The chapter outlines the impact of EU initiatives in areas such as corporate reporting, corporate governance, restructuring, and mobility. Freedom of establishment for companies is discussed with the relevant ECJ case law. A brief discussion of the European Company is included.

12. Free movement of persons and services and freedom of establishment

This chapter examines the free movement of workers, family members and non-active persons and freedom of establishment, and places this within the framework of citizenship of the European Union. The free movement of workers is one of the original four freedoms in the Treaty of Rome establishing the European Economic Community. Free movement of workers was essential for the construction of an internal market, and for several decades the freedom to move within the Community maintained its strict link with economic activity. Free movement has now evolved beyond the economically active with access, for example, to social advantages and rights for family members. This chapter also considers the exceptions to free movement (e.g. the public health and public security exceptions) and special cases of free movement (e.g. sport and lawyers).

Implementation of the freedom of establishment in relation to the notary profession, with particular emphasis on mutual recognition of professional qualifications

The possibility of applying the freedom of establishment to notaries is a complex legal issue due to the characteristics of this profession, mainly considering the connection of EU notaries with the operation of the state apparatus as established in individual member states. Additionally, as it seems, it is an ambiguously regulated area in the field of mutual recognition of professional qualifications. The research problem discussed in this article is a consideration whether, firstly, despite the legal nature of their profession (which, moreover, is not uniform for all member states), notaries as a professional group may exercise the freedom of establishment and, secondly, if in consequence they may be subject to mutual recognition of professional qualifications, and if so — on what legal basis.

15. Free Movement of Persons

This chapter evaluates the sources of movement rights for persons, as well as the horizontal connections between them. It analyses the special free movement rights for economically active persons; that is, workers and self-employed professionals. Importantly, the freedom of establishment here also covers companies. The chapter then specifically looks at the free movement rights of companies (and their subsidiaries). It also introduces the horizontal provisions on EU citizenship and their relationship to the special movement rights for workers and the self-employed. Finally, the chapter considers the horizontal rules that govern the various justifications for national restrictions on the free movement of persons. In addition to the ordinary public policy justifications, the main derogation here is a public service exception that allows Member States to restrict access to professions that are linked to the exercise of public authority.

Foreign Direct Investment Restrictions: Legal Aspects in the Context of Eurasian Integration

The article outlines current trends in the legal regulation of foreign direct investment; analyzes the current approaches of EAEU member states to the restriction of foreign investment; systematizes the provisions of the Union law, which affect the adoption and application of national measures to restrict and control foreign direct investment; identifies the conceptual differences between EAEU law and EU law in regulating freedom of establishment. The aim of the research is to determine the degree of the EAEU law influence on the introduction by member states of restrictive measures against direct investment from member states. The author concludes that the legal framework for national measures to restrict FDI from member states is predetermined by the norms of the Union law on ensuring freedom of establishment as a form of investment, operated with individual and general exceptions, that allow to take the measures necessary to protect the national priority interests.

COVID-19 measures and the Japanese Constitution

Since March 2020, the Act on Special Measures for Pandemic Influenza and New Infectious Diseases Preparedness and Response has been a significant statute in dealing with COVID-19 in Japan. The Act mandates requests and orders for business suspension and shortened business hours, as well as stay-at-home requests. Although there have been no penalties as of January 2021, these requests and orders limit freedom of movement and establishment, guaranteed rights under the Japanese Constitution. This article poses the following research question: “Does the Japanese Constitution allow measures against COVID-19 such as requests and orders for business suspension and shortened business hours, and stay-at-home requests?” It also asks: “Are measures with penalties allowed by the Constitution?” This paper introduces constitutional concepts that guarantee or limit individual freedom. Concepts that guarantee individual freedoms include freedom of establishment and movement. These freedoms derive from the constitutional values of freedom to choose one’s occupation and choose and change one’s residence (Art. 22) and the right to own or hold property (Art. 29). Concepts that limit individual freedom include the right to life (Art. 13), welfare rights and public health (Art. 25), and public welfare (Art. 13). Individual freedom that threatens right to life, welfare rights and public health, and public welfare may not be guaranteed. This paper argues that since measures against COVID-19 are considered public welfare, the Constitution allows the limiting of freedom of establishment and movement. Furthermore, from the perspectives of the right to life, welfare rights, and public health, the government is responsible for reducing the risk to life from COVID-19. It also argues that the Constitution permits measures with penalties, while proportionality needs to be considered.