bluuebunny/crossref_metadata_2025 huggingface dataset:
Settlement
Authors: Tochtermann Peter
Published: March 2021

The CMSs have given a strong mandate to the UPC to resolve disputes pending before the Court amicably. This is expressed by the decision to set up a Patent Mediation and Arbitration Centre (→ Art 35 UPCA, mn 2 ff, 5), which will offer an institutionalized framework for settling all disputes falling within the jurisdiction of the UPC.
Exchange of written pleadings (infringement action)
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

Rule 12 UPCARoP contains a list of all written pleadings that are possible in a written procedure in a patent infringement dispute, thus giving the parties an overview of the course of the written procedure at the beginning. Rules 12 ff extensively set out the written procedure for infringement actions including Counterclaims for revocation. These Rules lay down specific requirements on what written pleadings need to contain. The parties have to observe the formal requirements in their pleadings; they have to formulate requests in final and precise detail as well as make extensive submissions on the facts of the case, the evidence, and the legal assessment.
Further schedule
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

As soon as practicable after service of the Statement of defence, the judge-rapporteur shall, after consulting the parties, set a date and time for an interim conference (where necessary [Rule 101.1]) and set a date for the oral hearing. The judge-rapporteur may set one alternative date.
Accelerated proceedings before the central division
Authors: Kuczera Markus
Published: March 2021

Rule 40 applies to two cases in which, overall, there is an increased interest in determining whether or not the patent in suit is legally valid: first, if an Application for provisional measures has been lodged pursuant to Rule 206 (lit a) or, secondly, if the local or regional division referring the Counterclaim for revocation to the central division continues the original infringement action, which it is still pending with that division, instead of staying the action until the central division has issued a decision in the revocation action (lit b). In both cases, the alleged infringer risks being faced with a serious encroachment of its rights within a short time if the legal validity is not subsequently assessed. The principles of fairness and equity thus require not only that delays in the revocation action are avoided but also that any possibilities for accelerating the action are exploited flexibly.
Language of the Statement for revocation
Authors: Faehndrich Martin , Klicznik Alexander , Tilmann Max
Published: March 2021

Rule 45.1 UPCARoP implements Art 49(6) UPCA for the written pleading instituting the revocation proceedings. Pursuant to Art 49(6) UPCA, the language of proceedings at the central division will normally be the language in which the patent concerned was granted. The aim of this provision is to protect the patent proprietor from revocation proceedings conducted in a language of which he does not have a sufficient command. In this situation, recourse is had to the language of proceedings of the grant procedure. That recourse is appropriate since in the grant procedure the patent proprietor made a selection from amongst the possible languages of proceedings before the EPO (Art 14(1) and (2) EPC). That selection is carried over to the pleading instituting the proceedings in the revocation action before the central division.
Examination as to formal requirements, recording in the register, assignment (Court of First Instance, revocation action) and designation of the judge-rapporteur
Authors: Faehndrich Martin , Klicznik Alexander , Tilmann Max
Published: March 2021

The notification also serves to ensure the exchange of information for any opposition proceedings that might still be pending before the EPO. In the context of administrative and legal cooperation pursuant to Art 131 EPC, the EPO has an obligation towards the courts and authorities of the Member States to provide information for the purpose of ensuring a mutual exchange of information. In this regard, Art 131 EPC merely refers to a request to communicate information, but the notification by the UPC may be understood by the EPO as a request within the meaning of Art 131 EPC. The EPO may then make a corresponding notification to the Court on the opposition proceedings pending with regard to the patent.
Rule 68: Contents of the Defence to the Statement for a declaration of non-infringement
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

Possible orders that can be applied for in the interim procedure are, in principle, all orders of the Court provided for in the UPCA and the Rules of Procedure. For a Statement of non-infringement, however, only a few orders may be relevant. Normally, the defendant in an action for a declaration of non-infringement does not lack any means of proof; therefore, all the rules on proof (Rule 190), on information (Rule 191), on preserving evidence (Rule 192), or on inspection (Rule 199) may be applicable in only a few cases. The reason for this is that the defendant has no direct advantage in the rejection of the claim (except for the cost decision in his favour). The defendant cannot enforce that decision, even if the Court decides positively on the infringement question. Claims arising out of an infringement are not the subject matter of the action. If the defendant wants to bring an infringement claim, he must do so in an infringement action (→ Art 33(6) UPCA).
Rule 72: Request for allocating a technically qualified judge
Authors: Plassmann Clemens , Steininger Steffen
Published: March 2021

The Rule is self-explanatory. Refer to the commentaries on the Rules to which it refers.
Hearing of witnesses
Authors: Ahrens Hans-Jürgen
Published: March 2021

Rule 178 concerns the procedure for hearing witnesses. As under German law, the hearing begins by establishing the identity of the witness. Prior to the statement on the matter at hand, the witness must affirm that he will comply with his duty to tell the truth. Thereafter, the judges and parties may question the witness; however, the parties may only do so under the control of the presiding judge.
Experts of the parties
Authors: Ahrens Hans-Jürgen
Published: March 2021

Subject to the orders of the Court referred to in Rules 104(e) and 112.2(b) a party may provide any expert evidence that it considers necessary. Rules 175 to 180 shall apply mutatis mutandis to experts of the parties.
Examination of the Application for preserving evidence
Authors: Ahrens Hans-Jürgen
Published: March 2021

Rule 194 UPCARoP pertains to an application for preserving evidence as defined in Rule 192. In addition, Rule 194 addresses the procedural examination of applications that are lodged with the aim of obtaining an ex parte decision pursuant to Rule 192.3. Under Rule 194.1(d), if such an application is lodged, the Court must determine whether a decision can be reached solely based on the unilateral submissions of the applicant or whether the defendant must be heard beforehand.
Revocation of an order to preserve evidence
Authors: Ahrens Hans-Jürgen
Published: March 2021

The Court shall ensure that an order to preserve evidence is revoked or otherwise cease to have effect, upon request of the defendant, without prejudice to the damages which may be claimed, if, within a time period not exceeding 31 calendar days or 20 working days, whichever is the longer, from the date specified in the Court’s order with due account to the date where the Report referred to in Rule 196.4 shall be presented, the applicant does not start proceedings on the merits of the case before the Court.
Rule 213 Revocation of provisional measures
Authors: von Falck Andreas , Dorn Stephan
Published: March 2021

Rule 213 is based on Art 50(4) TRIPs, Art 9(5) Enforcement Dir, and Art 60(8) UPCA to which Art 62(5) UPCA refers. Rule 213 attempts to balance the interests of the applicant and of the defendant who is the addressee of decisive measures ordered in summary proceedings where the facts and the legal questions could not be scrutinized to the fullest extent. In the interest of the defendant, a provisional measure is justified only if the applicant has started proceedings on the merits of the case before the Court.
Rule 220 Appealable decisions
Authors: Büttner Tilmann
Published: March 2021

The system of legal remedies set up by the UPCA is rather sparse. The only remedy is an appeal which is only admissible if it has a basis in the UPCA or the Rules of Procedure. All decisions ending the proceedings at first instance are appealable. For orders issued during those proceedings, an appeal is only admissible if such orders are expressly designed as appealable by the UPCA or the UPC Statute or if the remedy is granted by leave of the Court, which means a leave of appeal issued by the Court of First Instance. When there is no leave to appeal, the party adversely affected by the order can request a discretionary review subject to the discretion of the Court of Appeal. That request cannot be regarded as a legal remedy. It is an informal procedure of cooperation between the two instances of the Court. The—at first view, rather intricate—means of proceedings following an order without leave for appeal has as a background different interpretations of Art 73(2)(b) UPCA. Pursuant to a first construction, the ‘Court’ pursuant to Art 73(2)(b) is exclusively the Court of First Instance (more specifically, the panel of the division in charge). Pursuant to another construction, the ‘Court’ means both the Court of First Instance and the Court of Appeal. Rule 220 UPCARoP is a compromise. It assumes that the first interpretation is basically correct but adds an option for reviewing the order at the sole discretion of the Court in an informal procedure shaped in the same way as the provision of Rule 333 with regard to the relationship between the judge rapporteur and the panel.
Rule 226 Contents of the Statement of grounds of appeal
Authors: Büttner Tilmann
Published: March 2021

Rule 226 is intended to structure and limit the subject matter of an appeal in a reasonable manner. As a defendant, as appellant, can also challenge the validity of a patent in the appeal proceedings he is especially required to have already presented all his arguments at the start of the appeal proceedings. On that basis, the Court can prevent him from stating additional grounds for appeal at a later time—with the exception of objections based on public documents (→ Rule 222 UPCARoP).
Rule 264 An opportunity to be heard
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

Where these rules provide that a party or parties shall or may be given an opportunity to be heard before the Court makes an order or takes some action the Court shall or may (as the case may be) request the parties to provide written submissions within a specified period and/or shall or may invite the parties to an oral hearing on a fixed date by the Court. The Court may also order that a hearing take place by telephone or video conference. Rules 105 and 106 shall apply mutatis mutandis.
Certificate that a representative is authorized to practice before the Court
Authors: Tilmann Winfried
Published: March 2021

Pursuant to Art 48(1) UPCA, parties must be represented by lawyers authorized to practise before a court of a CMS. They may be assisted by patent attorneys who must be allowed to speak at hearings of the Court in accordance with the Rules of Procedure (Art 48(4) UPCA).
Order on Application to intervene
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

The judge-rapporteur shall decide on the admissibility of the Application to intervene by way of order. The other parties shall be given an opportunity to be heard beforehand.
Composition of panels and assignment of actions
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 345 governs, as required by Art 19(1) cl 1 UPC Statute, the allocation of judges and actions within the panels. The provisions on the allocation of actions are supplemented by Rules 17.2 and 17.3. The detailed structuring of the allocation ensures the right to a lawful judge. The high standards of Art 6 ECHR, and also those in Germany of Art 101(1) cl 2 GG, do not need to be met. Rule 345 introduces the figure of the presiding judge guiding multiple panels. The Rule also governs the appointment of the presiding judge of the seat of the central division and of its sections.
Binding effect of decisions or orders subject to security
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Pursuant to Rule 354.1, decisions and orders are generally always immediately enforceable. However, they can be made conditional on security being rendered. Rule 352 is considered a key provision for all Rules in the Rules of Procedure that provide for the possibility of ordering security to be rendered. In particular, these include Rules 118.8 cl 4, 136, 196.6, and 211.4, of which Rule 136 also contains a direct reference to Rule 352 which, however, is merely of declaratory significance.
Obtaining A Proprietary Interest by Express Agreement
Authors: Calnan Richard
Published: March 2021

This chapter discusses how proprietary interests are transferred at common law, including the different rules for goods, land, and intangibles. It considers how proprietary interests are transferred in equity, including the effect of agreements to transfer future assets. The similar but distinct concepts of ‘creation’ and ‘transfer’ of a proprietary interest are explained. The fundamental features of the transfer of an express proprietary interest, applicable to the transfer of all proprietary interests, are identified and discussed. It explains the importance of identifying the asset concerned, and the particular issues which arise where only part of an asset is transferred.
United Kingdom
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Banking and insurance play central roles in UK industry. The UK banking industry is the largest in the world in terms of GDP. The UK insurance industry is the largest in Europe and the third largest in the world. Therefore, particularly in light of the financial crisis of 2008, it is extremely important to have a clear formula for the winding up of credit institutions, but also steps have been taken to bolster the resilience of the financial system and help avoid future crises by the implementation of a further regulation.
Article 41 TFEU
Authors: Bouquet André , Erlbacher Friedrich , Lewis Alexandre-Xavier-Pierre
Published: March 2021

Article 35 EC To enable the objectives set out in Article 39 to be attained, provision may be made within the framework of the common agricultural policy for measures.
Article 51 TFEU
Authors: Tomkin Jonathan
Published: March 2021

Article 45 EC The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
Article 61 TFEU
Authors: Tomkin Jonathan
Published: March 2021

Article 54 EC As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 56.
Article 70 TFEU
Authors: Wilderspin Michael
Published: March 2021

Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition.
Article 75 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 60 EC Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
Article 76 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

The acts referred to in Chapters 4 and 5, together with the measures referred to in Article 74 which ensure administrative cooperation in the areas covered by those Chapters.
Article 80 TFEU
Authors: Wilderspin Michael
Published: March 2021

The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.
Article 92 TFEU
Authors: Rusche Tim Maxian
Published: March 2021

Article 72 EC Until the provisions referred to in Article 91(1) have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
Preamble
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

His Majesty the king of the Belgians, Her Majesty the queen of Denmark, The President of the Federal Republic of Germany, The President of Ireland, The President of the Hellenic Republic, His Majesty the King of Spain, The President of the French Republic, The President of the Italian Republic, His royal Highness The Grand duke of Luxembourg, Her majesty the queen of the Netherlands, The President of the Portuguese Republic, Her majesty the queen of the United Kingdom of Great Britain and Northern Ireland
Article 108 TFEU
Authors: Rusche Tim Maxian
Published: March 2021

Article 88 EC The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market.
Article 117 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 97 EC Where there is a reason to fear that the adoption or amendment of a provision laid down by law, regulation or administrative action may cause distortion within the meaning of Article 116, a Member State desiring to proceed therewith shall consult the Commission. After consulting the Member States, the Commission shall recommend to the States concerned such measures as may be appropriate to avoid the distortion in question.
Title VIII Economic and Monetary Policy
Authors: Flynn Leo
Published: March 2021

Title VIII of Part Three of the TFEU deals with economic and monetary policy of the Union. It brings together two policy fields of intense sensitivity for the MS and for citizens, in a highly asymmetrical fashion. Economic policy is an area in which MS retain extensive competences, and in which the TFEU provisions envisage forms of coordination based on multilateral surveillance in which the Commission and the Council jointly exercise key responsibilities and from which the Court is largely excluded in practical terms (see also Commentary on Article 5 TFEU). Monetary policy is a competence of the Union (see Article 3 TFEU) that is largely exercised by the ECB as an independent Union institution, which is relatively insulated from the other institutions so that it can achieve its primary task of ensuring price stability.
Chapter 3 Institutional Provisions
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Overview

Article 134 creates the EFC, assigns tasks to it, and governs its composition.

Article 135 allows the Council or a MS to request the Commission to make a recommendation or proposal in respect of certain matters in the fields of economic and monetary policy....
Chapter 5 Transitional Provisions
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Overview

Article 139 lays down derogations for MS that do not have the euro as their currency and identifies provisions of the Treaties that shall not apply to them. It also excludes their NCBs from various rights and obligations within the ESCB.

Article 140 sets...
Article 141 TFEU
Authors: Flynn Leo
Published: March 2021

Articles 123(3) and 117(2) first five indents, EC If and as long as there are Member States with a derogation, and without prejudice to Article 129(1), the General Council of the European Central Bank referred to in Article 44 of the Statute of the ESCB and of the ECB shall be constituted as a third decision-making body of the European Central Bank.
Article 148 TFEU
Authors: Garben Sacha
Published: March 2021

Article 128 EC The European Council shall each year consider the employment situation in the Union and adopt conclusions thereon, on the basis of a joint annual report by the Council and the Commission.
Article 20 TEU
Authors: Kellerbauer Manuel
Published: March 2021

Member States which wish to establish enhanced cooperation between themselves within the framework of the Union’s non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 326 to 334 of the Treaty on the Functioning of the European Union.
Article 159 TFEU
Authors: Garben Sacha
Published: March 2021

Article 143 EC The Commission shall draw up a report each year on progress in achieving the objectives of Article 151, including the demographic situation in the Union. It shall forward the report to the European Parliament, the Council and the Economic and Social Committee.
Chapter 1 General Provisions on the Union’s External Action
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Overview

Article 21 TEU lays down the guiding principles underpinning Union action in the international sphere and sets out the key objectives of the Union’s external action.

Article 22 TEU provides for the identification by the European Council of the strategic interests and objectives of...
Article 171 TFEU
Authors: Kochenov Dimitry
Published: March 2021

Article 155 EC In order to achieve the objectives referred to in Article 170, the Union.
Title XVIII Economic, Social and Territorial Cohesion
Authors: Flynn Leo
Published: March 2021

Cohesion policy allows the Union to address the disparate level of development between the MS and their regions, as a complement to the economic integration produced by the operation of the internal market and the economic and monetary union.
Article 176 TFEU
Authors: Flynn Leo
Published: March 2021

Article 160 EC The European Regional Development Fund is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions.
Article 179 TFEU
Authors: Garben Sacha
Published: March 2021

Article 163 EC The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties.
Title III Cooperation with Third Countries and Humanitarian AID
Authors: Erlbacher Friedrich , Klamert Marcus
Published: March 2021

Title III comprises three distinct yet related policies, viz (1) development cooperation (DC), (2) cooperation with non-developing third countries, and (3) humanitarian aid (HA). More than other areas, the policies in this title depend on the interplay between the EU, the MS, other countries, and NGOs. They are areas firmly embedded in international law, with IAs being important instruments. The administration of assistance and aid is regulated by a number of partly overlapping instruments of secondary law.
Article 208 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 177 EC Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union’s external action. The Union’s development cooperation policy and that of the Member States complement and reinforce each other.
Article 232 TFEU
Authors: Loewenthal Paul-John
Published: March 2021

Article 199 EC The European Parliament shall adopt its Rules of Procedure, acting by a majority of its Members.
Article 252 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 222 EC The Court of Justice shall be assisted by eight Advocates-General. Should the Court of Justice so request, the Council, acting unanimously, may increase the number of Advocates-General.
Article 30 TEU
Authors: Ramopoulos Thomas
Published: March 2021

Article 22 TEU Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it, respectively, initiatives or proposals.
Article 260 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 228 EC If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.
Article 264 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 231 EC If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void.
Article 266 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 233 EC The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.
Article 276 TFEU
Authors: Schima Bernhard
Published: March 2021

In exercising its powers regarding the provisions of Chapters 4 and 5 of Title V of Part Three relating to the area of freedom, security and justice, the Court of Justice of the European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Chapter 2 Legal Acts of the Union, Adoption Procedures and Other Provisions
Authors: Loewenthal Paul-John
Published: March 2021

EU law is divided into primary and secondary legislation. EU primary legislation is made up of the provisions of the Treaties, general principles and international agreements to which the Union is a party. EU secondary legislation is made up of all acts adopted by the EU institutions in the exercise of their powers under the Treaties. Chapter 2 of Title I to Part 6 of the TFEU deals with the legal acts making up EU secondary legislation and the procedure for their adoption.
Article 34 TEU
Authors: Ramopoulos Thomas
Published: March 2021

Article 19 TEU Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union’s positions in such forums. The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination.
Article 313 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 272(1) EC The financial year shall run from 1 January to 31 December.
Article 320 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 277 EC The multiannual financial framework and the annual budget shall be drawn up in euro.
Article 323 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

The European Parliament, the Council and the Commission shall ensure that the financial means are made available to allow the Union to fulfil its legal obligations in respect of third parties.
Article 344 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 292 EC Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.
Article 8 CFR
Authors: Lock Tobias
Published: March 2021

Everyone has the right to the protection of personal data concerning him or her. Compliance with these rules shall be subject to control by an independent authority.
Article 48 TEU
Authors: Klamert Marcus
Published: March 2021

Article 48 TEU The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.
Article 50
Authors: Erlbacher Friedrich
Published: March 2021

Article 50 TEU is one of the innovations of the ToL that was taken over from the unsuccessful ConstT. It was considered that a further integration process must be accompanied by the possibility of leaving the Union, in case a MS is not willing to go in the direction of an ‘ever closer Union’. These origins of the TEU provide relevant information for the interpretation of Article 50 TEU. The introduction of Article 50 TEU has put an end to the academic debate as to whether, and under which conditions, a MS can decide to leave the EU.
Article 6 TFEU
Authors: Klamert Marcus
Published: March 2021

The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level
Article 7 TFEU
Authors: Klamert Marcus
Published: March 2021

The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.
Article 17 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 17 TFEU has been introduced by the ToL, drawing on Declaration No 11 to the ToA. This Declaration is mentioned in Recital 24 of the Equality Framework Directive 2000/78, whose Article 4(2) states that MS ‘may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’.
Article 6 TEU
Authors: Lock Tobias
Published: March 2021

The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
Article 18 TFEU
Authors: Martin Denis
Published: March 2021

Article 12 EC Within the scope of application of the Treaties, and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited.
EU Customs Law
Authors: Lyons QC Timothy
Published: March 2021

The third edition of EU Customs Law provides a fully updated treatment of legislation, new treaties and cases in the two courts of the EU especially but also in Member States. This volume also includes commentary on the Union Customs Code and secondary legislation, and increased coverage of areas such as the wider role of customs authorities apart from the collection of customs duty, such as security of goods and post 9/11 developments generally, the history of customs unions and their implications for governments, non-EU customs unions to which EU law is relevant, and the inter-relation between customs duty and direct tax.
The Customs Union in its EU Context
Authors: Lyons QC Timothy
Published: March 2021

Until the ratification of the Treaty of Amsterdam in 1997, the EC Treaty, as it then was, had dealt with the customs union in Articles 9 to 29 which constituted Chapter 1 of Title 1 and was devoted to free movement of goods. Many of the provisions dealt with the staged reduction of duties on imports between Member States and with the procedure by which a common customs tariff was to be established. As the customs union was created on 1 July 1968, by 1997 rationalization of the customs duty provisions in the EC Treaty was clearly long overdue. It was achieved by the Treaty of Amsterdam which ensured that the EC Treaty dealt with the main elements of the customs union in just five articles, Articles 23 to 27. These now appear in the Treaty on the Functioning of the European Union (TFEU) in Articles 28 to 32. Articles 30 to 32 constitute Chapter 1 of Title II on the free movement of goods. Article 30 provides that customs duties on imports and exports, and charges having equivalent effect, are prohibited between Member States together with customs duties of a fiscal nature. Article 31 states that the common customs
A Conceptual Understanding of EU Sectoral Administrative Law
Authors: Hofmann Herwig C H , Rowe Gerard C , Türk Alexander H
Published: March 2021

Any attempt to survey the sectoral administrative law of the European Union begs a number of fundamental questions. First, how do we understand ‘administrative law’, especially in relation to a supranational structure and system, such as that of the Union? Secondly, what exactly might we understand by ‘sectoral’ or ‘specialized’ administrative law, again especially in the context of the EU? Thirdly, just what is the difference between European Union law as such, and its administrative law. These distinctions, and the definitions attempted, are not addressed here just as scholarly abstractions. We take the view that understanding them and differentiating between these terms will make clear from the outset what this book attempts to cover, especially with respect to the concepts of both general EU administrative law and specialized EU administrative law employed here (which may or may not be similar to conceptualizations found in national contexts where these terms are employed).
Data Protection within Police and Judicial Cooperation
Authors: Dimitrova Diana
Published: March 2021

The main focus of this chapter is on administrative procedures for data protection in the area of Police and Judicial Cooperation (PJC), an integral part of the Area of Freedom, Security and Justice (AFSJ) in the European Union. This includes public security, as far as it falls within the scope of Union law, and the AFSJ. This is to be distinguished from national security which falls outside the scope of EU law. The administrative procedures discussed here concern the compliance with, and supervision and enforcement of data protection provisions applicable to EU and national authorities competent in the police and justice sector. As well, the mechanisms for EU–Member State cooperation in protecting personal data in the course of police and justice operations fall within this scope.
Interpretation
Authors: Jansen Nils , Zimmermann Reinhard
Published: March 2021

The rules and principles of contractual interpretation are of paramount importance in private law adjudication. As long as there is agreement as to the facts, most disputes turn on the exact scope and content of the contractual rights and obligations of the parties. In order to determine these, the contract has to be interpreted. Moreover, interpretation in the contractual context is not necessarily confined to the contract proper. It may also concern unilateral acts, at least in two scenarios.
Post-Petition Dispositions (Insolvency Act 1986, Sections 127 and 284)
Authors: Parry Rebecca , Shivji Sharif
Published: March 2021

The timing of a transaction is fundamental to many of the avoidance provisions: none more so than sections 127 and 284, which operate in the period following, respectively, the presentation of a winding-up petition against a company and the presentation of a bankruptcy petition against an individual. These are times of great potential for detrimental transactions and the sections reflect this. Upon the debtor entering liquidation or bankruptcy, these sections retrospectively make any post-petition disposition automatically void regardless of whether it was a transaction that was of benefit to the debtor. Thus, beneficial transactions, such as payments to employees and sales of assets for full market value, are affected just the same as detrimental, asset-stripping, transactions. The simplicity, and harshness, of these provisions is therefore to be contrasted with most of the other avoidance provisions, which tend to be discretionary and often require some enquiry to be made regarding the debtor’s motivations.
Transactions at an Undervalue (Insolvency Act 1986, Sections 238 and 339)
Authors: Parry Rebecca , Shivji Sharif
Published: March 2021

Sections 238 (corporate insolvency) and 339 (bankruptcy) target gifts, transfers for no or insufficient consideration, and transactions with a gift element entered into by the debtor on the eve of insolvency, to the detriment of creditors. The sections themselves are relatively straightforward in operation. The main conditions for challenging a transaction are that (a) the debtor either received no consideration or received consideration of a value significantly less than the consideration he gave (in bankruptcy the section also operates where a transaction has been entered in consideration of marriage); and (b) the transaction must have been entered into at a ‘relevant time’ which consists of two elements: the transaction must have taken place within a particular time period occurring immediately prior to insolvency, and it must also be established that the transacting party was insolvent at the time of the transaction or as a result of it. In corporate insolvency cases, a defence is available where the transaction was entered into in the reasonable belief that it would benefit the company. The simplicity of these provisions makes them a powerful weapon for office holders, as does the fact that the burden of proof shifts in favour of the officeholder where
The Architecture of EMU
Authors: Manger-Nestler Cornelia
Published: March 2021

Each description of an ‘architecture’ implies the analysis of the fundamental architect’s plan, leading principles and conditions of existence, which define the design and the shape of the ‘construction’. This applies specifically to the European Monetary Union (EMU), which is inscribed to the European Union (EU) as a kind of an inner circle, because of the intensified kind of union. Looking at the guiding principles in shape of irreversibility and conditionality, it soon becomes evident that, from its beginnings, the architecture of the EMU was a challenge. Owing to the asymmetry of the EMU, this finding has not changed in the past twenty years since the foundation of the EMU.
ESCB/Eurosystem/National Central Banks
Authors: Langner Julian
Published: March 2021

The European System of Central Banks (ESCB) and the Eurosystem respectively is quite a unique legal structure which is historically unprecedented. As part of the European Union (EU), it is necessarily based on the rule of law and needs to be clearly defined in the primary law as such. Thus, the ESCB was included in the European Union’s constituting Treaties by the Treaty of Maastricht in Articles 8 and 106 of the Treaty establishing the European Community (TEC). However, it reflects a typical European Union compromise.
The European Commission
Authors: van Duin Kees
Published: March 2021

The European Commission is one of the key European Union (EU) institutions and has been so ever since the early days of European integration. At the same time, its role and the manner in which it exercises its various functions differ widely between the various EU policy domains. This chapter will zoom in on one such specific policy domain, namely the Economic and Monetary Union (EMU). Notably, since the Treaty of Maastricht in 1992, the European Commission has been one of the key players in the elaboration of this specific policy field in all its aspects: in the original setting up and further development of EMU, as an instigator of policy developments, and in applying its rules and regulations. At the same time, the exact nature and content of the role that the Commission plays has strongly evolved over the years. Most recently, the financial and economic crisis that erupted in 2007/2008 and its follow up have profoundly affected the policy area of EMU including the role the Commission plays in the EMU framework.
Monetary Policy (objectives and instruments)
Authors: Tuori Klaus
Published: March 2021

Monetary policy became the exclusive competence of the Community in the Maastricht Treaty, but the Treaty was not very explicit on what this exclusive monetary policy competence included. The Treaty provisions on monetary policy did rely on some general idea of what monetary policy consisted of and what it did not. However, instead of trying to assess what this ‘consensus’ view on monetary policy was in the early 1990s, it is more convenient to look directly at the key concepts related to monetary policy and how they were manifested in the setting-up and actual conduct of monetary policy by the Eurosystem. In this regard, three different but interlinked concepts need to be clarified: the monetary policy strategy, the monetary policy transmission mechanism, and the operational framework. Monetary policy strategy describes the way the Eurosystem sees its role in the economy and how it achieves the objectives it has been assigned. The monetary policy transmission mechanism is embedded in the monetary policy strategy. It seeks to explain how the central bank policy decision are transmitted to the economy and how they help to fulfil central bank’s objectives, particularly price stability. The operational framework facilitates this transmission by setting up the framework through which the Eurosystem interacts with financial markets and ultimately the economy at large.
Economic Policy Coordination: Foundations, Structures, and Objectives
Authors: Keppenne Jean-Paul
Published: March 2021

The Treaty on European Union (TEU) provides, in its Article 3(4), that ‘[t]he Union shall establish an economic and monetary union whose currency is the euro’. This Economic Monetary Union (EMU) finds its origin in the Treaty of Maastricht of 7 February 1992. As part of this EMU, the core provisions framing the economic policy coordination of the Union are included in the Treaty on the Functioning of the European Union (TFEU) amongst the other internal Union policies. Consequently, the so-called ‘Community method’ fully applies in this field.
Financial Assistance to Euro Area Members (EFSF and ESM)
Authors: Forsthoff Ulrich , Aerts Jasper
Published: March 2021

This chapter sets out the operational rules, financial instruments, and financial assistance documentation of the European Stability Mechanism (ESM) and the European Financial Stability Facility (EFSF) in the context of granting stability support within the European Union (EU). Following a short overview of the governance of the ESM and the EFSF when granting financial assistance, the scope and functioning of the financial instruments of the ESM are described in more detail as well as the contractual documentation governing the relation between the ESM and the beneficiary ESM Member. This chapter concludes with an overview of the EFSF/ESM country cases.
Negotiation and Formation of Contracts
Authors: Kötz Hein
Published: March 2021

This chapter examines how contracts are negotiated and formed. It begins with a discussion of consent, which is mostly manifested in two declarations: an offer by one party and an acceptance by the other. It then considers the formation of contracts by an offer which must be ‘sufficiently definite’, rest on the offeror’s intention ‘to be bound’, and can be terminated or revoked by the offeror only under certain conditions. The chapter then discusses acceptance, including acceptance ‘by silence’ or by the ‘commencement of performance’ as well as ‘qualified’ or ‘delayed’ acceptance. The chapter concludes with a discussion of the liability of a party that breaks off contract negotiations.
Phoenixism and Pre-Packing
Authors: Anderson Hamish
Published: March 2021

There is no necessary connection between phoenixism and pre-packing; each can occur without the other but it is the combination of both which attracts most controversy. ‘Phoenixism’ is the term used to describe the re-emergence, after insolvency proceedings, of the same business under the same management. Pre-packing is the process of executing a pre-arranged sale of a business immediately upon the appointment of an administrator. In practice, most pre-packs are sales to connected persons—hence taking these subjects together for the purposes of this book.
Authorization and Licensing
Authors: Flanagan Anne
Published: March 2021

Licensing is a key aspect of telecommunications regulation. At a basic level, a licence permits a telecommunications provider to offer specified equipment, networks, and/or services, and often conditions that permission on certain requirements. Licensing, however, can control market entry and, therefore, can be used to shape the market by limiting, or not, the number of players or the types of services. Licensing can create legal certainty for new entrants where the telecommunications regulatory or general legal framework is not comprehensive or otherwise adequate. Here, conditions and rights integrated into licences can substitute for such frameworks. Similarly, eg where private property rights might be uncertain, the licence can serve as a contract between governments and investors, a departure from the traditional legal nature of a licence. As a binding contract, it could guarantee exclusivity, ensure due process as well as impose performance obligations, eg market penetration or network roll-out requirements. Investors might otherwise be reluctant to commit the capital required to roll out new technologies and/or networks to improve and update services. Without performance obligations, countries might be unwilling to involve private parties in running the state-owned incumbent. Licensing can also foster competitive markets by imposing obligations on incumbents to level
Consumer Protection and Telecommunications
Authors: Newman Elizabeth
Published: March 2021

Since the last edition of this book, there has arguably been a shift in focus in favour of consumer protection in the telecommunications industry both at EU and at UK level, which is illustrated through two developments. First, in 2016, the European Commission published its proposal for an Electronic Communications Code to codify and amend the four main telecommunications directives, which for the first time explicitly takes full account of the Charter of Fundamental Rights of the EU. It states that the proposed measures aim at achieving higher levels of connectivity ‘with a modernised set of end-user protection rules’. It mandates end-user rules where existing regulation has only set out minimum requirements. Second, in the UK in May 2017, the consumer association Which? awarded Ofcom Chief Executive, Sharon White, who took up the position in March 2015, the Positive Change Award for her work on putting consumers at the heart of Ofcom’s agenda.