bluuebunny/crossref_metadata_2025 huggingface dataset:
Rule 119 Interim award of damages
Authors: Steininger Steffen
Published: March 2021

Rule 119 grants to the Court the power to order an interim award of damages in a decision on the merits. This power was initially stipulated in Rule 125.2 of the 14th draft of the Rules of Procedure before the 15th draft transferred the provision to Rule 119 in the Chapter on the oral procedure in infringement proceedings. The transfer of the provision was made for systematic reasons and is reasonable as an interim award will already have been ordered during the proceedings on the merits.
Rule 143 Further procedure
Authors: Steininger Steffen
Published: March 2021

Rule 140 shall apply mutatis mutandis.
Compensation for costs of witnesses
Authors: Plassmann Clemens , Dold Dennis
Published: March 2021

Where the Court has ordered the deposit of a sum sufficient to cover the expenses of a witness in accordance with Rule 180.2 or of a party’s expert in accordance with Rule 181, compensation may be requested for payments made by the Registry towards the expenses incurred by a witness or an expert.
Security for costs of the Court
Authors: Plassmann Clemens
Published: March 2021

Except where deposits are rendered pursuant to Rule 180.2, the Court may order that either or both parties provide adequate security (either by deposit or bank guarantee) to cover costs incurred and/or to be incurred in the proceedings by the Court, pending a cost decision pursuant to Rule 150.1. Rule 158.2 and .3 shall apply.
Cooperation between the courts of the Member States in the taking of evidence
Authors: Ahrens Hans-Jürgen
Published: March 2021

For the taking of evidence in the European Union, the Regulation (EC) No 1206/2001 shall apply.
Order to freeze assets
Authors: Ahrens Hans-Jürgen
Published: March 2021

Where a party has presented reasonably available and plausible evidence in support of its claim that a patent has been or is about to be infringed the Court may, whether before or after proceedings have been commenced, order a party not to remove from its jurisdiction any assets or particular assets located therein nor to deal in any assets, whether located within its jurisdiction or not.
Rule 206 Application for provisional measures
Authors: Dorn Stephan
Published: March 2021

An application for provisional matters before the commencement of the main proceedings should be considered in cases where legal protection could not otherwise be achieved in time. An example is a so-called trade fair case in which the alleged infringer may only be available while the trade fair is running. In trade fair cases, the applicant only has access to the exhibited objects which he needs to prove his case for a limited period of time. Another example is an application for provisional measures for the assets of the alleged infringer before the commencement of the main proceedings where the defendant has only minor assets in the UPCA territory and/or relocation of those assets is expected.
Rule 235 Statement of response
Authors: Büttner Tilmann
Published: March 2021

The time period for lodging the Statement of response depends, as does the time period for the Statement of appeal, on whether a decision on the merits or a procedural order is contested. Unlike the time period for the Statement of appeal, the period for the Statement of response can be extended.
Rule 237 Statement of cross-appeal
Authors: Büttner Tilmann
Published: March 2021

Following the example of dependent legal remedies under German civil procedural law (cross-appeal pursuant to s 542 ZPO and cross-revision according to s 533 ZPO), the Rules of Procedure provide for a dependent legal remedy that is still admissible after the time period for lodging a legal remedy but the admissibility of which depends on the existence of the main legal remedy: the cross-appeal.
Fee for the rehearing
Authors: Tilmann Winfried
Published: March 2021

The petitioner shall pay the fee for the rehearing, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis. The Court may waive payment of the fee in the circumstances contemplated by Rule 245.2(a) or (b).
Litigation privilege
Authors: Tilmann Winfried
Published: March 2021

Where a client, or a lawyer or patent attorney as specified in Rule 87.1, .2, .6 and .7 instructed by a client in a professional capacity, communicates confidentially with a third party for the purposes of obtaining information or evidence of any nature for the purpose of or for use in any proceedings, including proceedings before the European Patent Office, such communications shall be privileged from disclosure in the same way and to the same extent as provided for in Rule 287.
Plurality of claimants or patents
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

Pursuant to Rule 302.1, the Court can order that proceedings are heard in separate proceedings (separation; consequences for costs: para 2). Pursuant to para 3, separate proceedings can be ordered by the Court to be heard together (joining proceedings).
Varying or revoking orders
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Variations or revocations by the judge rapporteur or the presiding judge themselves of case management orders constitute orders within the meaning of Rule 333. The Court in turn also has the power to vary or revoke such orders. At the same time, the party’s right of request pursuant to Rule 102.2 in conjunction with Rule 333 is not affected thereby. The variation or revocation itself is not yet a procedural decision within the meaning of Rule 220.3. Such decision can be obtained by the party only through an Application for review pursuant to Rule 333 (→ Rule 333 UPCARoP).
Orders of the Court’s own motion
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 337 ensures the parties’ right to be heard where the Court wishes to issue a case management order of its own motion. For the specific conduct of the hearing, refer to the commentary on Rule 264 UPCARoP. In any event, the parties have to be granted a reasonable period of time to state their comments
Dates, times and place of the sittings of the Court
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 342 contains general provisions on the dates, times, and place of Court sittings. The competences for determining judicial vacations and the dates and times are clearly assigned. The option to designate a place for a hearing other than the seat of the Court is intended to protect the defendant and to come closer to the seat of the parties, in particular in actions before regional divisions.
Orders
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Following Rule 350, Rule 351 sets out the formal minimum requirements to be met by a judicial order outside a decision. These conditions are distinguished by whether the Court, pursuant to the provisions of the Rules of Procedure, has granted leave to appeal the judicial order (para 2) or not (para 1).
Withdrawal of legal aid
Authors: Gundt Miriam
Published: March 2021

Pursuant to para 1, the Court can withdraw legal aid at any time if the applicant’s economic situation alters during the proceedings. The applicant must be heard beforehand.
Titles V and VI: Cross-Border Group Resolution and Third Countries
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Title V of the Bank Recovery and Resolution Directive (BRRD) (Articles 87–92) concerns cross-border group resolution. This Title V is an important part of the BRRD, for the financial crisis has shown how difficult it can be for authorities to cooperate effectively and efficiently in cross-border bank failures. Moreover, whilst this Title V focuses on the resolution of cross-border groups, it bears relevance also for the preparation and early intervention stages, and it contains important provisions on authorities’ cooperation in that regard. Article 87(c), for instance, requires also the relevant supervisory authorities (responsible for the early intervention stage) to cooperate, and Article 88(1) requires the resolution colleges to decide on the resolvability of institutions and groups in scope of the BRRD ex Articles 12, 13, 16, and 18.
Germany
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Within Germany, the harmonization of the national bank insolvency laws by Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms (the BRRD) has rendered an already complex legislative landscape considerably more confusing. For credit institutions, there are now no less than three different statutes that lay down the procedures and substantive provisions available to supervisory and resolution authorities, and the procedural framework for cross-border coordination and recognition is to be found in two of them (with some overlap in terms of scope and content). While the BRRD has been transposed within a separate new statute (the Act on the Recovery and Resolution of Institutions and Financial Groups), the provisions transposing Directive 2001/24/EC on the reorganisation and winding up of credit institutions (the Credit Institutions Directive) continue to be included in the German Banking Act. Section 46 of the Banking Act also continues to lay down administrative powers, including the closure of a failing institution, the imposition of a freeze of assets and stay of payments (known as the ‘moratorium’), as well as the removal of senior management for the German financial supervisory authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin).
Ireland
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

The Irish Banking Crisis (2008–2012) led to a dramatic restructuring of the credit institutions, including the nationalization of two out of three of the domestic retail banks and the injection of significant capital into all three. Progress continues to be made in strengthening the balance sheets of the banks against a background of continued economic recovery reflected in GDP growth of 4.8 per cent in 2015, increases in exports and employment, and improvements in investor and consumer spending. Focus has shifted now to the oversight of the resolution of the large number of non-performing loans, the strengthening of the banks’ business models, and managing the consequences to the Irish economy of Brexit. Ireland has five ‘significant institutions’ (Bank of Ireland, AIB plc, Ulster Bank Ireland DAC, Citibank Holdings Ireland Ltd, and Permanent TSB Group Holdings plc) and thirteen ‘less significant’ institutions. The Irish insurance market is well developed and diverse with the majority of the insurers being subsidiaries of large international insurance parents. At the time of writing, there are approximately fifty-eight insurance undertakings with Irish consumers operating in Ireland.
Chapter 1 The Customs Union
Authors: Killmann Bernd-Roland
Published: March 2021

The customs union, established under Article 28 TFEU, requires goods to be treated in a uniform matter when cleared through customs to enter into and to exit from the Union. In addition, goods admitted onto the territory of the customs union are to circulate freely within that territory. To that end, Article 30 TFEU contains directly applicable rules ensuring that no duty within the Union impedes goods to freely circulate. Article 31 TFEU set out the necessary regulatory basis for imposing a uniform customs duty throughout the Union, while Article 32 TFEU contains the policy considerations necessary to devise these duties.
Article 33 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 135 EC Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
Article 42 TFEU
Authors: Bouquet André , Erlbacher Friedrich , Lewis Alexandre-Xavier-Pierre
Published: March 2021

Article 36 EC The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 43(2) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 39.
Article 9 TEU
Authors: Kochenov Dimitry , Lock Tobias
Published: March 2021

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
Article 54 TFEU
Authors: Tomkin Jonathan
Published: March 2021

Article 48 EC Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
Article 67 TFEU
Authors: Wilderspin Michael
Published: March 2021

Article 61 EC and ex Article 29 TEU The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
Article 69 TFEU
Authors: Wilderspin Michael
Published: March 2021

National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
Article 79 TFEU
Authors: Wilderspin Michael
Published: March 2021

Article 63, points 3 and 4, EC The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.
Article 86 TFEU
Authors: Bogensberger Wolfgang
Published: March 2021

In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Article 110 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 90 EC No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Article 17 TEU
Authors: Loewenthal Paul-John
Published: March 2021

The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
Article 144 TFEU
Authors: Flynn Leo
Published: March 2021

Article 120 EC Where a sudden crisis in the balance of payments occurs and a decision within the meaning of Article 143(2) is not immediately taken, a Member State with a derogation may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the internal market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.
Article 169 TFEU
Authors: Garben Sacha
Published: March 2021

Article 153 EC In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.
Article 172 TFEU
Authors: Kochenov Dimitry
Published: March 2021

Article 156 EC The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
Article 21 TEU
Authors: Ramopoulos Thomas
Published: March 2021

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
Title XIX Research and Technological Development and Space
Authors: Garben Sacha
Published: March 2021

Article 4(3) TFEU provides that in the areas of research, technological development, and space, the Union shall have competence ‘to carry out activities, in particular to define and implement programmes’. This competence is further fleshed out in the various provisions contained in Title XIX. Article 4 TFEU concerns areas in which competence is shared between the EU and the MS. The competence in research, technological development, and space is not, however, an ordinary shared competence. Article 4(3) TFEU specifies that ‘the exercise of that competence [in research, technological development and space] shall not result in MS being prevented from exercising theirs’. This means that Union action may not pre-empt MS action in these areas, whereas such pre-emption is actually the main characteristic feature of shared competences, in accordance with Article 2(2) TFEU.
Article 221 TFEU
Authors: Erlbacher Friedrich
Published: March 2021

Over nearly six decades, the EC gradually built a worldwide bilateral and multilateral diplomatic network. The transformation of these then Commission delegations into EU Delegations under Article 221 TFEU was one of the achievements of the ToL with a view to ensure a more effective and coherent external action of the EU. It is one of the expressions of the Union’s international legal personality and reflects its capability to enter into diplomatic relations with third states and IOs.
Section 4 The Commission
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Overview

Article 244 lays down the new procedure for the selection of commissioners.

Article 245 sets out the principal obligations and prohibitions to which the members of the Commission are subject.

Article 246 deals with replacement of members of the Commission in the case of...
Article 31 TEU
Authors: Ramopoulos Thomas
Published: March 2021

Article 23 TEU Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
Article 275 TFEU
Authors: Schima Bernhard
Published: March 2021

The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.
Article 277 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 241 EC Notwithstanding the expiry of the period laid down in Article 263, sixth paragraph, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
Article 283 TFEU
Authors: Flynn Leo
Published: March 2021

Article 112 EC The Governing Council of the European Central Bank shall comprise the members of the Executive Board of the European Central Bank and the Governors of the national central banks of the Member States whose currency is the euro.
Article 300 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 300 TFEU takes over Article I-32 ConstT and amends the former Articles 7(2) TEU and Articles 257, 258(3), and 263(1) and (5) EC. Since the ToL, Article 13(4) TEU mentions the advisory tasks of the CoR and the EESC, without, however, giving them organ status.
Article 328 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Articles 27a to 27e, 40 to 40b, and 43 to 45 TEU and ex Articles 11 and 11a EC When enhanced cooperation is being established, it shall be open to all Member States, subject to compliance with any conditions of participation laid down by the authorising decision. It shall also be open to them at any other time, subject to compliance with the acts already adopted within that framework, in addition to those conditions.
Article 345 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 295 EC The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.
Article 351 TFEU
Authors: Kellerbauer Manuel , Klamert Marcus
Published: March 2021

Article 307 EC The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.
Preamble
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

The European Parliament, the Council and the Commission solemnly proclaim the following text as the Charter of Fundamental Rights of the European Union.
Article 22 CFR
Authors: Lock Tobias
Published: March 2021

Article 22 CFR aims to ensure the diversity of the Union and complements other provisions of the Charter and the Treaties pursuing similar objectives. Cultural and linguistic diversity are among the core values of the EU mentioned in Article 3(3) TEU. Cultural diversity finds further expression in primary law in Article 167(1) and (4) TFEU; and linguistic diversity in the right to address the EU institutions in any one of the EU’s official languages in Article 41(4) CFR as well as in Article 21 CFR, which prohibits discrimination on the basis of language. Moreover, the Union’s commitment to religious diversity is reflected in Article 17 TFEU protecting the status of churches, religious, philosophical, and non-confessional organizations and communities as well as in Article 10 CFR protecting freedom of religion and belief.
Article 34 CFR
Authors: Martin Denis
Published: March 2021

According to the CFR Explanations, the principle set out in Article 34(1) CFR is based on Articles 153 and 156 TFEU, Article 12 of the ESC and point 10 of the Community Charter on the rights of workers. The Union must respect it when exercising the powers conferred on it by Articles 153 and 156 TFEU. The reference to social services relates to cases in which such services have been introduced to provide certain advantages but does not imply that such services must be created where they do not exist. ‘Maternity’ must be understood in the same sense as in Article 33.
Article 37 CFR
Authors: Lock Tobias
Published: March 2021

A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.
Article 44 CFR
Authors: Martin Denis
Published: March 2021

Pursuant to Article 52(2) CFR, where the Charter recognizes rights for which provision is made in the body of the treaties, they are to be exercised under the conditions and within the limits laid down in the treaties. As such, the reproduction of the right to petition in the Charter is essentially of symbolic importance and does not produce any free-standing or additional legal effects.
Article 50 CFR
Authors: Lock Tobias
Published: March 2021

No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
Article 3 TEU
Authors: Klamert Marcus
Published: March 2021

The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
Article 55 TEU
Authors: Klamert Marcus
Published: March 2021

Article 53 TEU This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
Preamble
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

His Majesty The King of the Belgians, The President of the Federal Republic of Germany, The President of the French Republic, The President of the Italian Republic, Her Royal Highness the Grand Duchess of Luxembourg, Her Majesty The Queen of the Netherlands
Article 8 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 3(2) EC In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
Article 14 TFEU
Authors: Rusche Tim Maxian
Published: March 2021

Article 16 EC Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.
Article 22 TFEU
Authors: Martin Denis
Published: March 2021

Article 19 EC Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
Introduction
Authors: Lyons QC Timothy
Published: March 2021

A study of European Union (EU) customs law is, in large measure, a study of achievement. The EU’s customs union has been described as ‘one of the most successful examples of European integration and European policy. It has served as a stable foundation for economic integration and growth in Europe for over four decades.’ The success of the Community in establishing a customs union ahead of schedule, on 1 July 1968 and deepening the union subsequently, may now be overshadowed by the more far-reaching achievements and controversies surrounding the European Monetary Union (EMU) and the area of freedom, security, and justice. The fact, though, that the European project has advanced a long way in more recent times, notwithstanding the enormous difficulties following the financial crisis which emerged in 2007, should not be allowed to disguise the truths that the European Economic Community was, as the Treaty of Rome, Article 9 said, ‘based upon a customs union’ and that without a successful economic community there would have been no European Community or European Union.
The Origin of Goods
Authors: Lyons QC Timothy
Published: March 2021

The ability to determine the origin of goods is obviously essential for the operation of the EU’s customs union and the application of the Tariff. Indeed, it is also essential for the operation of a free trade area and other preferential arrangements, and many of the international agreements which were considered in the previous chapter contain extensive provisions dealing with the determination and proof of the origin of goods. The determination of origin is important too not just for customs matters but for many activities concerned with the regulation of markets. The Court of Justice has highlighted this, saying:
Monetary Policy and Euro Area Governance in the EMU
Authors: Hofmann Herwig C H
Published: March 2021

One of the European Union’s most ambitious policy projects to date is the ‘economic and monetary union whose currency is the euro’ (EMU, Article 3(4) TEU). The EMU’s two polices—the economic union and the monetary union—are an unequal set of twins. On one hand, the monetary union’s central elements are well developed: as an element of substance, the introduction of the euro as a single currency; as an institutional achievement, the creation of the European System of Central Banks (ESCB) together with the European Central Bank (ECB) on the EU level as a highly independent body having the power to adopt a diverse range of measures. Additionally, the Treaties contain specific provisions on the goals and principles of monetary policy.
Control of State Aid: A policy specific area of EU administrative law
Authors: Micheau Claire
Published: March 2021

The regulatory framework of State aid is central to the review of the use of public resources in the European Union. Article 107 of the Treaty on the Functioning of the European Union (TFEU) defines State aid as any aid which may distort competition and affect trade between Member States, by favouring some undertakings or the production of certain goods. The Treaty provisions entrust the Commission with the prevention of aid granted by Member States which could unduly distort competition in the internal market. When applying the Treaty provisions, the Commission not only ensures that the Member States do not provide aid limiting competition and tilting a level playing field, but also defines growth-oriented approaches and shapes policy instruments within the context of subsidization.
The Common Agricultural Policy
Authors: McMahon Joseph A
Published: March 2021

‘While the Common Agricultural Policy may be well known for the political and financial problems to which it gives rise, the legal issues underlying it have not been so widely discussed’. Usher went on to note that the Common Agricultural Policy (CAP) lay behind many institutional developments, that agriculture was the first single market, and it was in the context of agricultural disputes that the Court of Justice of the European Union developed many of the general principles of Community (now European Union) law. So, whilst many will be familiar with the broad contribution that the CAP has made over the last sixty years, there are few who are more familiar with the legal intricacies of the policy. Part of the reason for this may be that close engagement with the administration of the CAP is not an easy exercise. Whilst the European institutions are responsible for setting not only the broad framework of the policy but also, in certain cases, the details of various aspects of the policy, implementation has been devolved to the Member States.
Illegality
Authors: Jansen Nils , Zimmermann Reinhard
Published: March 2021

The parties’ freedom to agree on the content of their contract has never been unlimited. Where the contract is regarded as legally or morally offensive because it infringes a legal or extra-legal norm, the validity or enforceability of the contract can be excluded. The main reason for policing a contract in this way is that the law is unwilling to help to enforce a contract that places itself outside the legal and moral order on which a society is based. Furthermore, invalidity or non-enforcement may be regarded as a sanction discouraging undesirable conduct.
Transaction Avoidance in Insolvencies
Authors: Parry Rebecca , Ayliffe James , Shivji Sharif
Published: March 2021

The third edition of Transaction Avoidance in Insolvencies considers all the possible ways in which a vulnerable transaction might be attacked, as well as practical issues that can arise in a typical transaction avoidance case. This new edition has been fully updated to reflect recent legislative amendments arising from the revision of the Insolvency Rules 1986, which came into force in 2017. The text also now incorporates an international dimension, which includes an analysis of the revised EU Regulation on Insolvency Proceedings. There is also comprehensive coverage of important new case law. Written by a team of well-known specialists, Transaction Avoidance in Insolvencies provides a detailed account of this complex area from a practical perspective.
Office Holder Claims
Authors: Parry Rebecca , Shivji Sharif , Olliff-Cooper Guy
Published: March 2021

Office holder claims under the Insolvency Act 1986 present an important alternative, or additional, means of recovering assets in corporate insolvency cases. Section 212 provides a summary procedure that allows office holders, creditors, and contributories to bring claims against officers, former office holders and other persons involved in the promotion, formation, or management of the company. Section 213 provides for a civil remedy against directors and knowing parties for fraudulent trading; and section 214 enables claims to be brought against directors for ‘wrongful trading’ after a company should have entered liquidation or administration.
Destination of Proceeds (Corporate Insolvency)
Authors: Parry Rebecca
Published: March 2021

The key issue in considering entitlements to any sums realized as a result of an avoidance action is whether the recoveries will be caught within the scope of any fixed or floating charge that the company has granted. This vexed question has now been addressed under statute with the insertion of section 176ZB into the Insolvency Act 1986, so that where an office holder has brought a claim, or made an assignment of an avoidance action to recover, in England and Wales, a preference, transaction at an undervalue or extortionate credit transaction or, in Scotland, a gratuitous alienation or unfair preference, any sums recovered will not be treated as part of the company’s net property and so they will be unavailable to meet the claims of floating-charge holders. The position is the same in relation to actions for fraudulent trading and wrongful trading claims.
Euro As Legal Tender (and Banknotes)
Authors: Freitag Robert
Published: March 2021

The provisions governing the euro as ‘European Single Currency’ are at the core of the Treaty on the Functioning of the European Union’s (TFEU) rules on the Economic Monetary Union (EMU). Since the euro has replaced the former national currencies of the participating Member States and is to substitute the national currencies of any future members of the euro area, it was mandatory to ascribe to the euro the status of exclusive ‘legal tender’ as per Article 128(1) TFEU. This status of the euro seems to be so evident as to be self-explanatory–but only at first glance since the concept of ‘legal tender’ and its implications in European Union (EU) and national private and public law are less clear. A satisfactory concept of legal tender is hard to define and hardly ever given on the EU level–resulting in a striking lack of legal certainty in a great variety of aspects of public and private law.
Banking Resolution: The EU Framework Governing the Resolution of Credit Institutions
Authors: Gortsos Christos V
Published: March 2021

On 15 May 2014, the European Parliament and the Council adopted Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms (Bank Recovery and Resolution Directive or BRRD). It was the first time that harmonized rules were adopted at European Union (EU) level in this field, as opposed to other fields in which a regulatory framework had been in place since the late-1980s and mid-1990s (respectively), such as the field of authorization, prudential regulation and supervision of credit institutions, currently governed by Regulation (EU) 575/2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) 648/2012 (Capital Requirements Regulation or CRR) and Directive 2013/36/EU (Capital Requirements Directive IV or CRD IV) and the field of deposit guarantee schemes (DGSs), currently governed by Directive 2014/49/EU (DGSD).
The Definiteness of the Contract
Authors: Kötz Hein
Published: March 2021

This chapter focuses on the definiteness of the contract. Many contracts for the sale of goods do not say anything about the time and place of delivery or the quality of the goods. However, not all such agreements are invalid for want of ‘definiteness’. Instead, terms designed by law for just this situation are read into the agreement in place of the missing stipulations—for example that the goods are to be delivered ‘within a reasonable time’ or that they should have no ‘concealed defects’. The chapter concludes with a discussion of two special cases: is there a binding contract if an essential term is left open for future determination by the parties or a third party? What about a contract in which the parties have agreed that one party may, at a later date, unilaterally determine the price to be paid by the other party?
Mistake
Authors: Kötz Hein
Published: March 2021

This chapter examines how the law deals with contracts that a party entered into by mistake. After a brief discussion of the historical background of the rules in the civil law and the common law, the question is raised whether there is a relevant mistake if a party’s ‘motive’ for entering into the contract turns out to be incorrect, if the party’s mistake refers to the value of what it promised or was to receive under the contract, or if the party’s mistake is due to its carelessness. Should the relevance of a mistake not depend on whether it was caused or shared by the other party? Finally, the chapter outlines some common threads in the development of a European law on mistake.
The Framework of Corporate Insolvency Law
Authors: Anderson Hamish
Published: March 2021

This book provides a critical examination of modern English corporate insolvency law, in particular the procedures under the Insolvency Act 1986, from both conceptual and functional points of view. It focuses throughout on identifying a rational explanation for the form that the rules and institutions of the modern law take or, where there is no such rational explanation, the history which has resulted in the present position. A central theme of the book is that the nature and fundamental purpose of insolvency proceedings themselves dictate many of the features of English insolvency proceedings. For example, collective execution on behalf of creditors necessitates definition of the insolvent estate and the provision of rules concerning provable debts and transaction avoidance. Many key features of the insolvency procedures are therefore essentially matters of practicality rather than principle, albeit practicalities applied justly and fairly. The book covers the nature and purpose of insolvency law; the procedures; the administration, supervision and regulation of insolvency proceedings; the insolvent estate and transaction avoidance; investigation and wrongdoing by directors; phoenixism and pre-packing; distribution of the insolvent estate; and, lastly, cross-border insolvency. It examines the various principles of insolvency law in the context of practice, drawing upon historical perspectives where appropriate. By explaining how the law takes the form that it does, the book promotes an understanding of the present law and institutions as a whole, and shows how this understanding might inform future developments.
Office-Holders
Authors: Anderson Hamish
Published: March 2021

At one level the title ‘office-holder’ is merely a convenient way generically to refer to the person (liquidator, administrator, or supervisor) who has the conduct of the insolvency proceeding in question. However, there is a burgeoning concept of the office-holder being a person to whom a number of privileges and responsibilities attach regardless of the form of the proceedings in which the appointment has been made.
AUTHORIZATION
Authors: Rosemary Langford
Published: March 2021

At general law breach of the duties to avoid conflicts and profits (the conflicts and profits rules), as fiduciary duties, can be excused or authorized by the company as beneficiary of the duty. This can be done by approval of the company’s shareholders (usually in general meeting) or by provision in the company’s constitution (allowing disclosure to, and authorization by, the other directors). There are, however, limits placed on such authorization or ratification. The first part of this chapter discusses these limitations. It then discusses relevant statutory provisions in each of the jurisdictions, with a key focus on sections 175, 180, 239, and 232 of the Companies Act 2006 (UK). This includes more detailed discussion of the authorization provisions in sections 175(5) and (6), which are notably absent from section 176. The complex issue of ratification of breach of statutory duty in Australia is also canvassed. This limitation, which does not apply in the UK, renders a number of aspects of directors’ duties problematic. This includes attempts by companies to adopt more stakeholder-friendly approaches.
Adjournment
Authors: Hamer Kenneth
Published: March 2021

Solicitors Disciplinary Tribunal, Policy/Practice Note on Adjournments 2002 (the existence of other proceedings, lack of readiness, ill health, and inability to secure representation will not generally be regarded as providing justification for an adjournment; the tribunal will expect the respondent to support a late application for adjournment with a statement of truth as to the reasons for the sought adjournment).
Conviction and Caution Cases
Authors: Hamer Kenneth
Published: March 2021

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, Schedule 3, as amended (exceptions to the 1974 Act in relation to any member of certain excepted professions and employments identified in Schedule 1, such as a healthcare professional, barrister, solicitor, chartered or certified accountant, veterinary surgeon, actuary, chartered legal executive or constable; convictions and cautions are ‘protected’ against the requirement of disclosure in the case of excepted professions and employments after certain periods of time other than in relation to excepted proceedings, such as proceedings in respect of a person’s admission to or disciplinary proceedings against a member of any excepted profession, or disciplinary proceedings against a constable).
Dishonesty (Sanction)
Authors: Hamer Kenneth
Published: March 2021

The Solicitors Disciplinary Tribunal (SDT) found that he had not stolen clients’ monies and that his actions were not dishonest. However, it found that B’s conduct in paying away monies belonging to a client building society to his wife in anticipation of the completion of a conveyancing transaction was a very serious matter. He was suspended for two years and his appeal against sanction was dismissed. In giving the judgment of the Court of Appeal, Sir Thomas Bingham MR said that any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the SDT. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties.
Fines
Authors: Hamer Kenneth
Published: March 2021

Financial Services and Markets Act 2000, sections 66(3) (‘If the regulator is entitled to take action under this section against [an approved] person, it may … impose a penalty on him for such amount as it considers appropriate …’) and 123 ((1) If the FCA is satisfied that a person … has engaged in market abuse … it may impose on him a penalty of such amount as it considers appropriate. … (3) If the FCA is entitled to impose a penalty on a person under this section it may, instead of imposing a penalty on him, publish a statement to the effect that he has engaged in market abuse.’)
Witnesses
Authors: Hamer Kenneth
Published: March 2021

The rules of most regulatory bodies contain provision dealing with how evidence is to be given by witnesses at a hearing, the categories of persons who qualify as vulnerable witnesses, and the use of special measures in the case of a vulnerable witness. Case management powers may provide directions that each party disclose to the other, in advance of the hearing, details of the witnesses on whom they intend to rely and copies of signed witness statements setting out the substance of their evidence. Some bodies provide for the committee or tribunal, on the application of a party or of its own motion, to require a witness to attend a hearing. Rule 34.4 of the Civil Procedure Rules (CPR) provides that the court may issue a witness summons in aid of a tribunal that does not have power to issue a witness summons in relation to proceedings before it.
The Statutory Provisions Relating to Adjudication
Authors: Coulson The Rt Hon. Lord Justice
Published: March 2021

The provisions relating to adjudication are set out in Part II of the 1996 Act, as amended by the 2009 Act. They are included at Appendix A. The Scheme for Construction Contracts is at Appendix B. The early cases in which the principles behind Part II were considered by the courts remain of critical importance. In Macob Civil Engineering Ltd v Morrison Construction Ltd, the adjudicator had directed that Morrison should pay Macob £302,366.34 plus VAT, interest and fees. The principal dispute in the adjudication concerned the agreement between the parties as to the relevant dates for payment.
Abatement and Set-Off
Authors: Coulson The Rt Hon. Lord Justice
Published: March 2021

The financial difficulties created for a smaller contractor by the larger or more powerful main contractor or employer with whom he contracts have been the subject of much hand-wringing and not a little legislation since the days of Victorian ‘laissez-faire’ capitalism. The persistent refusal of the larger company to pay the invoices rendered by the smaller has always been one of many weapons wielded by the larger organization to ensure that its own cash flow was given priority over the interests and rights of others. The phenomenon referred to in the media in the early 1990s as ‘subbie-bashing’ is, sadly, nothing new: larger and more powerful main contractors have always done all that they can to make their own contracts as profitable as possible, and it has often been their sub-contractors and suppliers who have suffered. By the same token, as Lord Diplock points out in Gilbert-Ash, the main contractor is himself vulnerable to similar machinations on the part of the employer.
Consequences of a Finding that the Plea/Appeal is Well Founded
Authors: Naômé Caroline
Published: March 2021

The fact that a plea is well founded does not mean that the appeal is well founded. The ECJ may reject the plea as an ineffective plea or proceed with a substitution of grounds. If an appeal is well founded, the Court may give final judgment itself, where ‘the state of the proceedings so permits’, or refer the case back to the General Court. It is quite difficult to determine the scope and implications of the quashing of a judgment. The General Court is bound by the decision of the Court of Justice on points of law. However, parts of the first judgment of the General Court may remain valid and wield the authority of res judicata.