Cea mai noua statistica a Curtii Europene de Justitie este una veche, pentru 2007.
JURIST: Russia arbitration court voids most tax claims against British Council [*]
Caitlin Price, 31.01.2009
Moscow’s Ninth Arbitration Court of Appeals on Thursday declared void most of the Russian government’s tax claims against the British Council, the British government’s cultural relations arm, relating to the organization’s in-country operations in 2004-2006. The British Council filed suit last May seeking to void tax claims of over 200 million rubles made by the Russian government in late 2006. In October, the Moscow Arbitration Court ruled to invalidate the majority of those claims. Thursday’s appellate arbitration court decision upheld the judgment for the British Council, qualifying 130 million rubles of the taxes as void.
CJCE, C-311/06, Consiglio Nayionale degli Ingegneri, hotărâre din 29 ianuarie 2009. [cauza integral]
Directiva privind sistemul de recunoastere a diplomelor conferă oricărui solicitant care este titular al unei „diplome” ce îi permite să exercite o profesie reglementată într-un stat membrudreptul de a exercita aceeasi profesie în oricare alt stat membru.
Curtea declară că, potrivit chiar definitiei cuprinse în directivă, o „diplomă” nu include un titlu eliberat de un stat membru care nu atestă nicio formare din cadrul sistemului de învătământ al acestui stat membru si nu are la bază nici un examen, nici o experientă profesională dobândită înacest stat membru. Într-adevăr, aplicarea directivei într-o astfel de situatie ar avea ca efect să se permită cuiva care nu a obtinut în statul membru în care si-a efectuat studiile decât un titlu care,în sine, nu conferă accesul la profesia reglementată să acceadă la aceasta, fără ca titlul deomologare obtinut în alt stat să dovedească în vreun fel dobândirea unei calificări suplimentare sau a unei experiente profesionale. Această situatie ar fi contrară principiului consacrat prin directivă, potrivit căruia statele membre îsi rezervă dreptul de a stabili nivelul minim de calificare necesară cu scopul de a garanta calitatea muncii depuse pe teritoriul lor.
Stephen J. Lubben, Derivatives and Bankruptcy: The Flawed Case for Special Treatment, (September 8, 2008). Seton Hall Public Law Research Paper No. 1265070. Available at SSRN
Abstract:
The putative scourge of “cherry picking” provides the foundation for the Bankruptcy Code’s special treatment of derivative contracts, which are not subject to the automatic stay or the Code’s normal rules prohibiting termination solely as a result of one party’s bankruptcy filing. Alternatively, some argue that the special treatment of derivatives is justified because “derivatives contracts are generally not firm-specific assets and therefore giving them special treatment will increase economic efficiency.” In this paper I argue that neither argument is very convincing, and that derivative contracts should be subject to the general rules of bankruptcy in most cases.
Tracy Kaye, The Gentle Art of Corporate Seduction: Tax Incentives in the United States and the European Union(October 29, 2008). Kansas Law Review, Vol. 57, No. 93, 2008; Seton Hall Public Law Research Paper No. 1314440. Available at SSRN.
Abstract:
Tax competition among the States, in particular the use of targeted tax incentives, is a compelling problem in our federal system. In order to attract corporations and the employment opportunities they represent, States engage in a “race to the bottom” through destructive bidding wars. This article discusses the considerably different approaches used by the U.S. and the European Union to temper the ability of their States and Member States to provide tax subsidies and concludes that lessons can be learned from the EU experience.
This article sets forth the current approaches to distinguishing between appropriate and inappropriate tax incentives. In the EU, the Member State bears the burden of proving that the proposed tax incentive does not distort the common market. Any new incentive is subject to a formal investigation by the Commission to determine whether it is compatible with the common market. The U.S. does not, however, have a governmental entity that is analogous to that of the European Commission. Furthermore, in the U.S. it appears that the standing doctrine effectively keeps most parties from challenging the various States’ tax incentives. EU state aid policy enables Member States to resist protectionist pleas from companies such that the EU is experiencing a downward trend in the use of tax incentives and virtually no use of the targeted tax incentives utilized so widely by the American States.
This article recommends the formation of a group under the auspices of the Multistate Tax Commission to promulgate a State Code of Conduct for Business Taxation analogous to the EU’s Code of Conduct. This Code of Conduct would prohibit States from offering targeted tax incentives.
In cauza C-541/99, prin hotararea din 22 noiembrie 2001, CJCE considera ca este “consumator” numai persona fizica, nu si persona juridica.
Comunicare a Comisiei— Recapitalizarea instituțiilor financiare în contextul actualei crize financiare: limitarea ajutorului la minimul necesar și garanții împotriva denaturărilor nejustificate ale concurenței
[RO]
Hugh Collins, The European Civil Code. The Way Forward, CUP, 2009. [*]
Hugh Collins argues that the European Union should develop a civil code to provide uniform rules for contracts, property rights and protection against civil wrongs, thus drawing together the differing national traditions with respect to the detailed regulation of civil society. The benefits of such a code would lie not so much in facilitating cross-border trade, but in establishing foundations for a denser network of transnational relations of civil society, which in turn would help to overcome the present popular resistance to effective and functional political institutions at a European level. These principled foundations for a more inclusive and less ‘balkanised’ civil society in Europe also provide elements of a required European Social Model that offers necessary safeguards for consumers, workers and disadvantaged groups against the pressures of market forces in an increasingly global economic system.
Hotărârea Curţii în cauza C-318/07, Hein Persche/Finanzamt Lüdenscheid, 27 ianuarie 2009. [CURIA]
În consecintă, Curtea declară că libera circulatie a capitalurilor se opune unei reglementări a unui stat membru în temeiul căreia, în ceea ce priveste donatiile făcute unor organizaţii recunoscute ca fiind de interes general, beneficiul deducerii fiscale nu este acordat decât pentru donatiile efectuate în favoarea unor organizaţii situate pe teritoriul national, fără nicio posibilitate pentru contribuabil de a demonstra că o donatie efectuată în favoarea unei organizaţii stabilite într-un alt stat membru îndeplineste conditiile impuse de respectiva reglementare pentru acordarea unui astfel de beneficiu.
Marek Szydlo, Emigration of Companies under the EC Treaty: Some Thoughts on the Opinion of Advocate General in the Cartesio Case, European Review of Private Law, Volume 16, Number 6, 2008
Summary:
Since the ECJ has, in its jurisprudence, already guaranteed immigrating companies (within the meaning of Article 48 ) the right – seen from the perspective of the host Member State – to transfer their real seat, by acknowledging that the host Member State must recognize the company’s legal personality and allow it to continue to be subject to the company law of its home Member State, the time has come for the same right to be guaranteed to the emigrating companies (i.e., those that transfer their real seat) from the perspective of their home Member State, as well. An opportunity for such a right to be guaranteed to the companies is offered by the Cartesio case that is now pending before the ECJ. In his opinion delivered on 22 May 2008, the Advocate General states that Articles 43 EC and 48 EC preclude national rules of the home Member State which make it impossible for a company constituted under national law to transfer its operational headquarters to another Member State, while acknowledging at the same time that such absolutely prohibited rules include, among others, an order for the emigrating company to be dissolved. This article argues that the ECJ should also include among such absolutely prohibited rules an order concerning the change of law applicable to the emigrating company, since the said company should have the right to demand from its home state to be allowed to retain its current personal statute.
Wolf-Georg Ringe, Sparking Regulatory Competition in European Company Law – The Impact of the Centros Line of Case-Law and its Concept of ‘Abuse of Law’. PROHIBITION OF ABUSE LAW – A NEW GENERAL PRINCIPLE OF EU LAW, R. de la Feria & S. Vogenauer, eds., Hart Publishing, Oxford, 2009 ; Oxford Legal Studies Research Paper No. 2/2009. Available at SSRN
This paper analyzes the ECJ’s approach towards abusive behavior in company law and assesses the impact that the leading cases since 1999 have had both on business behavior in the EU and on the national law-makers who have responded to the opening of the markets. It is shown that the Court has provoked a sizable entrepreneurial migration from various EU countries towards the UK. This in turn has led to regulatory competition, in that other Member States in continental Europe have been forced to adapt their company law to make it more attractive for businesses. It is argued that at least so far, the (limited) competition between Member States has been beneficial and has reduced both registration time and costs. Questions remain as to the relevance of any comparison with the United States and the future developments for corporate re-incorporations.
Rezoluţia Parlamentului European din 14 ianuarie 2009 referitoare la situaţia drepturilor fundamentale în Uniunea Europeană în perioada 2004-2008 .
[*]
Sébastien Roland, Le triangle décisionnel communautaire à l’aune de la théorie de la séparation des pouvoirs. Recherches sur la distribution des pouvoirs législatif et exécutif dans la Communauté, Bruylant, 2008.
La théorie de la séparation des pouvoirs, généralement regardée comme le standard en matière d’organisation du pouvoir dans les États démocratiques, se révèle d’une grande utilité pour rendre compte de la structure institutionnelle de la Communauté européenne. En premier lieu, et dès lors que l’on renonce à l’exclusivisme de l’interprétation séparatiste qui en a été donnée au profit d’une lecture en termes de collaboration fonctionnelle des organes, elle permet de proposer une théorisation de la distribution des fonctions exécutive et législative entre les trois grandes institutions communautaires articulée autour du modèle de la balance des pouvoirs. En second lieu, la valeur heuristique de la théorie apparaît en ce qu’elle conduit à mettre au jour la notion de régime mixte comme paradigme architectonique de la distribution communautaire des pouvoirs : en ce sens, la singularité de la Communauté réside dans le fait que la question du principe de légitimité prévalent n’y est pas réglée, de sorte que le système communautaire maintient en situation de concurrence les principes de légitimité intergouvernemental, démocratique et intégratif sur lesquels chacune des composantes de sa triade institutionnelle est assise.
Proiectul de lege, fundamentat, se afla de ceva timp pe site-ul Ministerului de Justitie; oricum, e un prilej bun de aducere la cunostinta celor ce nu il cunosc.
Asadar:
Lege privind formularea de către România a unei declaraţii în baza articolului 35 din Tratatul privind Uniunea Europeană
Parlamentul României adoptă prezenta lege:
Articol unic. – În temeiul art. 35, alin. (2) din Tratatul privind Uniunea Europeană, România formulează următoarea Declaraţie:
“România declară că acceptă competenţa Curţii de Justiţie a Comunităţilor Europene în conformitate cu art. 35. alin (3), litera b) din Tratatul privind Uniunea Europeană.
România îşi rezervă dreptul de a prevedea dispoziţii în dreptul intern pentru ca, în cazul în care se invocă o chestiune privind validitatea sau interpretarea unui act prevăzut la articolul 35, alineatul (1) din Tratatul privind Uniunea Europeană, într-o cauză pendinte pe rolul unei instanţe judecătoreşti naţionale ale cărei hotărâri nu sunt supuse vreunei căi de atac în dreptul intern, această instanţă judecătorească să fie obligată să înainteze Curţii de Justiţie a Comunităţilor Europene o cerere pentru pronunţarea unei hotărâri preliminare, atunci când apreciază că o decizie a Curţii în această privinţă este necesară pentru pronunţarea hotărârii în cauza aflată pe rol”.
Textul proiectului aici.
Un articol mai vechi despre care doream de mult sa facem mentiune aici dezbate chestiunea interesanta, desigur, a incidentei dreptului comunitar (mai precis, in articol, in mare parte - a liberei circulatii a marfurilor – art. 28 CE) asupra unor situatii pur interne, i.e. in care circumstantele litigiului (principal – daca e vorba despre 234 CE) privesc un singur stat membru.
Am reflectat asupra acestei chestiuni care la prima vedere pare a fi “tehnica” pornind de la inevitabilele discutii din cauza Jipa… Unii s-au intrebat atunci (pe drept temei?) cu privire la o astfel de situatie pentru parat…
Asadar:
Alina Tryfonidou - The outer limits of Article 28 EC: Purely internal situations and the development of the Court’s approach through the years [aici]
The purely internal rule has been one of the ways that have traditionally been utilised by the ECJ in drawing a line between the scope of application of Article 28 EC and Member State laws regulating trade. The aim of this paper is twofold: firstly, to provide an account of how the Court has dealt, in different phases of the Community’s development, with purely internal situations and, in particular, to provide an analysis of the Court’s recently varied approach in finding a link with EC law in some Article 28 cases; secondly, to offer, in parallel, an exegesis of how the Court seems, now, to be in the early stages of a process through which it aims to address the problems caused by the application of the purely internal situations doctrine. It will be concluded that, although the Court has managed to respond successfully to one of the key problems caused by the application of its traditional approach to purely internal situations (i.e. the failure, in some instances, to reflect economic reality), more effort needs to be put by the Community institutions in dealing effectively with the other major problem emerging from the application of the purely internal rule (the reverse discrimination conundrum).
Urmare a sesizarii CJCE de catre instanta constitutionala belgiana, cu privire la compatibilitatea cu libertati fundamentale si cu Regulamentul 1408/71 a unui regim de securitatate sociala a unei entitati federate din respectivul stat, Curtea de Justitie s-a pronuntat in cauza C-212/06 [RO].
Acum a venit randul pronuntarii Curtii constitutionale, pornind de la argumentele CJCE.
Este vorba despre decizia 11/2009 [FR], intr-un dosar pe care l-am putea denumi “intra-belgian”: 2 comunitati ataca o alta comunitate in fata instantei constitutionale.
Pentru cei mirati de aplicarea sistemului art. 234 CE (al recursurilor prejudiciabile – sic!) instantelor constitutionale nationale, o astfel de speta poate constitui un bun punct de pornire.
Hotărârea Curții (Camera a doua) din 14 iunie 2007
Comunicații electronice — Rețele și servicii — Cadru de reglementare comun — Întreprindere dominantă — Obligația de interconectare cu alți operatori — Dispoziții tranzitorii — Directiva 97/33
Textul hotararii RO.
David Hodson, The EU Mediation Directive: The European Encouragement to Family Law ADR, International Family Law, December 2008
The Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52) [RO] has been adopted by the UK government. It applies to family law. It has a three year timetable for implementation. It creates expectations that member states will encourage mediation wherever possible. It is an incredible opportunity for all family law professionals committed to ADR to bring about much-needed improvements and opportunities, both specifically in cross-border work but also in national family law work. This article looks at the Directive, the background to ADR specifically mediation, and the opportunities for the future of cross-border ADR work against the very real difficulties created by other pieces of European legislation
[*]
Cartesio ruling has implications for EU exit taxes
David Stevenson
The European Court of Justice has ruled that member states must be careful not to interfere with freedom of establishment if it wants to place any restrictions on a taxpayer that wants to move to another member state.
Hungarian company Cartesio has lost its appeal to the ECJ on December 16 2008 over its plans to move its operational headquarters to Italy but remain under Hungarian company law. Hungarian law does not allow a company incorporated in Hungary to transfer its operational headquarters to another member state without having paid any taxes associated with the disposal of its assets.
“The Cartesio case gave the ECJ the chance to elaborate on issues raised from other cases. In fact the ruling refers to other cases as often as Cartesio itself,” said Tamas Feher, a tax lawyer at CMS Cameron McKenna in Hungary.
The movement of companies from one EU member state to another has been controversial for some time. In the Daily Mail case in 1988 the ECJ concluded that provisions regarding the life and death of a company were determined solely by the member state under whose laws the company was created. It allowed the UK to impose an exit tax on the newspaper if it wanted to move its effective management to another member state
“The reason why tax practitioners have got excited by the Cartesio case is that they hoped the judgement would finally overturn the decision held in the Daily Mail case,” said Peter Cussons, a tax partner at PricewaterhouseCoopers in the UK.
The ECJ had already ruled in Lastyrie that an immediate exit tax breaches the European Treaty’s freedom of establishment provision. However the UK is unique among EU member states in that it employs a treasury consent procedure for company migration. Because of this, it was thought that the Daily Mail decision may still be applicable.
“The Cartesio ruling has shown that Daily Mail is dead law in the UK,” said Cussons. “Paragraphs 112 and 113 of Cartesio say that where a company becomes subject to the law of another member state, any restriction in either the state of incorporation, for an example an exit tax, or in the state to which the principal place of administration is transferred has to be justifiable with regards to the freedom of establishment.”
“The Cartesio ruling implies that countries should not be able to impose exit taxes on companies as it may dissuade the company from moving to another member state,” said Feher.
Although the judgement in the Cartesio case does not deal with the precise situation in the UK, it is unlikely the European Commission would allow the UK government to levy an exit tax on taxpayers wishing to move.
De aici.
Paolo Santella, Riccardo Turrini, Capital Maintenance in the EU: Is the Second Company Law Directive Really That Restrictive?, European Business Organization Law Review (EBOR), 2008, vol. 9, Iss. 3.
Publication abstract
This contribution sets out to establish whether, and if so to what extent, the Second Company Law Directive {Directiva a II-a, 77/91, RO; Directiva de modificare 2006/68, RO} allows the EU Member States to introduce different means of creditor protection, as suggested by recent academic studies on the function of legal capital and by various existing proposals for alternative regimes. The conclusion is that the Second Company Law Directive is a flexible instrument in so far as it allows Member States to impose capital requirements that are as severe as they want and it allows Member States to adopt solvency-based systems similar to those existing outside the EU. The recent amendments introduced by Directive 2006/68/EC have already simplified the requirement of an expert evaluation of contributions in kind, relaxed the share buy-back provisions and eliminated the ban on financial assistance. Moreover, Member States are not obliged to require companies to prepare individual IAS/IFRS-based accounts for dividend distribution purposes, and Member States that decide to do so may (but are not obliged to) introduce various mechanisms that limit the possibility of distributing unrealised profits according to the realisation principle entrenched in the Fourth Company Law Directive [Directiva a IV-a RO]. As far as no par value shares are concerned, the Second Company Law Directive already allows the introduction of de facto no par value shares in the form of accountable par shares.
Vlad Perju, Reason and Authority in the European Court of Justice, (January 9, 2009). Boston College Law School. Boston College Law School Faculty Papers. Paper 236.
ABSTRACT:
This Article makes the case for a discursive turn in European law. Contrary to the prevailing view, politicizing the judicial discourse of the European Court of Justice would strengthen, more than undermine, the Court’s authority. This argument is made with reference to the ECJ’s reason giving practice, specifically to the relation between the form and content of its decisions. Allowing its members to write separate opinions will enable the Court to redefine its role on the European institutional and political stages The Article then answers doctrinal, institutional and juriscultural objections to its central thesis.
P. Takis Tridimas, Jose A. Gutierrez-Fons, EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?, September 18, 2008, Fordham International Law Journal, Forthcoming. Available at SSRN.
This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.
Kadi, 402/05 pe acest blog
