bluuebunny/crossref_metadata_2025 huggingface dataset:
Article 301 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 258 EC The number of members of the Economic and Social Committee shall not exceed 350.
Article 314 TFEU
Authors: Killmann Bernd-Roland
Published: March 2021

Article 272(2) to (10) EC The European Parliament and the Council, acting in accordance with a special legislative procedure, shall establish the Union’s annual budget in accordance with the following provisions.
Title III Enhanced Cooperation
Authors: Klamert Marcus , Kellerbauer Manuel , Tomkin Jonathan
Published: March 2021

Article 326 TFEU complements Article 20 TEU regarding the substantive requirements for establishing and implementing enhanced cooperation.
Article 327 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 any enhanced cooperation shall respect the competences, rights and obligations of those Member States which do not participate in it. Those Member States shall not impede its implementation by the participating Member States.
Article 332 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 Expenditure resulting from implementation of enhanced cooperation, other than administrative costs entailed for the institutions, shall be borne by the participating Member States, unless all members of the Council, acting unanimously after consulting the European Parliament, decide otherwise.
Article 335 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 282 EC In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.
Article 337 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 284 EC The Commission may, within the limits and under conditions laid down by the Council acting by a simple majority in accordance with the provisions of the Treaties, collect any information and carry out any checks required for the performance of the tasks entrusted to it.
Article 342 TFEU
Authors: Kellerbauer Manuel
Published: March 2021

Article 290 EC The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations.
Article 353 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 48(7) of the Treaty on European Union shall not apply to the Articles 311, 312(2), 352 and 354.
Article 358 TFEU
Authors: Klamert Marcus
Published: March 2021

The provisions of Article 55 of the Treaty on European Union shall apply to this Treaty.
Article 9 CFR
Authors: Lock Tobias
Published: March 2021

The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.
Article 10 CFR
Authors: Lock Tobias
Published: March 2021

Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
Title IV Solidarity
Authors: Lock Tobias
Published: March 2021

The provisions in Title IV fall into the broad category of ‘social rights’ so that the heading ‘solidarity’ is fairly accurate. Many have their roots in the Council of Europe’s (revised) European Social Charter (rESC) and other instruments protecting social rights, such as the International Covenant on Economic, Social and Cultural Rights. Their inclusion is reflective of the idea of a ‘Social Europe’, which would ‘combine economic success and social responsibility’.
Article 35 CFR
Authors: Lock Tobias
Published: March 2021

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.
Title V Citizens’ Rights
Authors: Tomkin Jonathan
Published: March 2021

The provisions of Title V lay down the rights attaching to EU citizenship. The status was introduced by the ToM and became applicable as of 1 November 1993 when that Treaty entered into force. As the status and rights of EU citizens are provided for in the TEU and TFEU, the restatement of those rights in the Charter is of essentially symbolic importance. Indeed, 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.
Article 42 CFR Right of access to documents
Authors: Lock Tobias
Published: March 2021

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.
Title VI Justice
Authors: Lock Tobias
Published: March 2021

Title VI CFR lays down key procedural guarantees relating to the protection and enforcement of rights under Union law. Most of these guarantees can also be found in the ECHR and in the case law of the ECtHR. The Charter includes some innovations, however, such as a broader scope for the right to fair proceedings in Article 47(2) CFR, the right to legal aid in Article 47(3) CFR, and in the event of a change in law providing for a penalty, the right to have the more lenient penalty applied in Article 49(1) CFR. In addition, Article 50 CFR provides for the application of the rule against double jeopardy on a Union-wide basis.
Article 48 CFR
Authors: Lock Tobias
Published: March 2021

Article 48 CFR contains important (criminal) procedural guarantees. It reflects the rights contained in Article 6(2) and (3) ECHR. By virtue of Article 52 (3) CFR its meaning and scope are thus the same. This means that the more detailed rights laid down in Article 6(3) ECHR must be read into the rights to defence guaranteed by Article 48(2) CFR.
Title I Categories and Areas of Union Competence
Authors: Klamert Marcus
Published: March 2021

Before the ToL, the only mention of categories of competences was in Article 5(2) TEC introduced by the ToM in the context of subsidiarity. The aims with drafting Articles 2–6 TFEU were clarification and containment. The latter was especially important for Germany in order to counter a perceived ‘competence creep’. The principles governing the competence order of the EU are enshrined in Article 5 TEU.
Article 10 TFEU
Authors: Klamert Marcus
Published: March 2021

In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 12 TFEU
Authors: Klamert Marcus
Published: March 2021

Article 153(2) EC Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
Article 20 TFEU
Authors: Martin Denis
Published: March 2021

Article 17 EC Citizenship of the Union is hereby established. Every person holding the nationality 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 24 TFEU
Authors: Martin Denis
Published: March 2021

Article 21 EC The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.
Customs Entry and Declaration
Authors: Lyons QC Timothy
Published: March 2021

So far in this book we have looked at the legal concepts which underlie EU customs law. Now we turn to consider customs entry and the making of the customs declaration with the aim of giving some indication of the general administrative framework within which these crucial events take place. At the outset it should be noted that the customs declaration is of the greatest importance because a customs debt is incurred at the time a declaration is accepted. Administratively, handling customs declarations is a huge task. In the UK alone, HMRC processed around fifty-five million import and export customs declarations in 2015–16.
The Customs Debt and Reliefs from Duty
Authors: Lyons QC Timothy
Published: March 2021

The rules governing the customs debt constitute a point at which the practical interests of all those affected by customs duty coincide. For the Union institutions the customs debt represents own resources which it needs to survive. For the Member State the debt is a sum of money which it has a legal obligation to collect. For the trader, the debt represents simply a liability to be paid. No wonder then that the pre-consolidation legislation on customs debt said that:
Planning for the Future
Authors: Lyons QC Timothy
Published: March 2021

The creation of a customs union ahead of schedule in 1968 was a great achievement, but over the subsequent years more work had to be done to ensure that the customs union was fully effective. Indeed, it was not until 1985 that a regulation establishing the inward processing regime was passed. The regulation governing the outward processing regime was not passed until the following year. Then in 1992 came the removal of border controls.
Public Health Policy
Authors: Klamert Marcus
Published: March 2021

The field of EU health law is difficult to define. One strand began with negative integration under the freedom to receive health-care services, as developed by the European Court of Justice in the 1990s. This case law on patient mobility has recently been codified and expanded in the Cross-Border Health Care (CBHC) Directive 2011/24/EU. Union health law concerns also the mobility of health-care professionals, by establishing a regime on the mutual recognition of their qualifications. Another strand of European health law has always displayed positive integration for certain specific products. The first Tobacco Products Directive was adopted in 1989, the first pharmaceuticals directive as early as the year 1965.
European Union Civil Service Law
Authors: Bradley Kieran
Published: March 2021

The civil service law of the European Union governs the legal relationships between Union institutions and agencies, on the one hand, and their staff and a number of categories of persons who may have rights under the EU Staff Regulations or equivalent instruments, on the other hand. These latter include in particular former staff in receipt of pensions or other benefits, family members of (former) staff who have a claim on the Union as a result of their links with the staff member, and candidates for competitions and contractual posts. It is EU law in a relatively pure form, in that neither national law nor the Member State authorities (administrative or political) play any significant part in its application, except Member State governments in their role as Union legislators within the Council, and occasionally national courts called upon to apply EU staff law in national disputes, for example in tax or family law matters. Despite its material content, European Union civil service law is also relatively impervious to the influence of EU social protection law adopted in favour of workers generally under Title X of Part Three TFEU (Social policy), subject to a small number of exceptions, such as minimum
Plurality of Parties
Authors: Jansen Nils , Zimmermann Reinhard
Published: March 2021

The PECL rules were later taken over into the DCFR, subject to some modifications. At the same time, Part III of the PICC was prepared, including a chapter on ‘Plurality of Obligors and of Obligees’, which was published in 2010. In principle, it is similar to the PECL rules, but there are also a number of substantial modifications. The FS and the CESL do not include a chapter on plurality of parties. This may be due to the difficulty of the subject or to their drafters’ assumption that the core case of internet sale contracts does not involve a plurality of parties.
Capitalisation of Interest
Authors: Jansen Nils , Zimmermann Reinhard
Published: March 2021

Chapter 17 of the PECL consists of only one single rule, entitled ‘When Interest to Be Added to Capital’. That rule has been moved to Chapter 9, Section 5 on ‘Damages and Interest’, where it appears as Art 9:508-4. That is, therefore, also the place where the reader will find the other textual layers and a commentary on the problem of capitalization of interest. The shift from Chapter 17 to Chapter 9 is in line with the intentions of the draftsmen of Part III of the PECL, for in the Introduction to that volume (page xvii) they indicated that ‘in any future combined volume covering Parts I, II and III the treatment … could be incorporated at the appropriate [place] earlier in the volume’.
Preferences (Insolvency Act 1986, Sections 239 and 340)
Authors: Parry Rebecca , Shivji Sharif
Published: March 2021

Preference laws have long played a part in maintaining creditor entitlements in the period leading up to the commencement of formal insolvency proceedings. The general rationale of the preference provisions of the Insolvency Act 1986 is that if in the period leading up to insolvency proceedings the debtor.
Disclaimer
Authors: Ayliffe James
Published: March 2021

The powers of liquidators and trustees in bankruptcy to disclaim onerous property may be categorized as avoidance powers, in that they enable a transaction that a debtor has entered into to be set aside. They are, however, unconventional avoidance powers in that they do not enable the augmentation of the assets available for creditors: rather they are aimed at the disposal of assets. Moreover, it is perhaps stretching the definition of the term ‘avoidance provision’ to include the right of disclaimer, which is an administrative provision in nature, aimed at enabling the office holder to complete the administration of the liquidation or bankruptcy without being burdened by onerous property, such as unprofitable contracts or assets that are of no value to the estate. However, it may be argued that a further aim of the powers is in accordance with the general aims of many of the avoidance provisions: namely, to prevent needless depletion of the debtor’s assets by the continuance of contracts that are unprofitable or that give rise to liabilities.
Unenforceability of Liens on Books, Papers, and Other Records (Insolvency Act 1986, Sections 246 and 349)
Authors: Parry Rebecca
Published: March 2021

The smooth functioning of insolvency proceedings demands that the office holder has at his disposal all relevant documents and consequently an order may be obtained for the delivery up to the office holder of books, papers, and records relating to the debtor. Any lien or other right that gives a person possession is unenforceable against the office holder, so as to prevent these rights from being used by the possessor to resist having to surrender the property concerned to the office holder. This provision does not, however, apply where the person holds documents of title to property under a lien. This exemption is discussed further at paragraphs 8.04 et seq.
Transactions Defrauding Creditors (Insolvency Act 1986, Section 423)
Authors: Ayliffe James
Published: March 2021

Section 423, which is applicable in both corporate and personal insolvency, acknowledges that transactions that are prejudicial to creditors may be entered into at any time, and not just in the period leading up to insolvency. Unlike the other transaction avoidance provisions of the Insolvency Act 1986, there is no requirement that the transaction should have occurred within a specified time period leading up to winding up or bankruptcy in order to be voidable. Nor indeed is it required that there is a formal insolvency or even that the debtor should have been insolvent at the time of the transaction or subsequently.
Pensions (Corporate Insolvency Only)
Authors: Ayliffe James
Published: March 2021

Transaction avoidance issues may arise in relation to pensions in the context of corporate insolvency. However, such issues are of a rather different nature from those that arise in the context of bankruptcy and are discussed in Chapter 14. In the bankruptcy context, the issue is avoidance of transactions by the bankrupt (in the form of contributions to pension schemes) that have diminished his estate. Avoidance is therefore sought for the benefit of creditors. In the present context, the issue is avoidance of transactions by the insolvent company or others that have diminished the funds of an occupational pension scheme in respect of which the insolvent company is the employer company. Avoidance is therefore sought for the benefit of the members of the scheme rather than the general body of creditors of the company.Moreover, if the company has received assets under the transaction in question and avoidance of the transaction is sought with a view to recovering such assets, such avoidance will operate to the detriment of the general body of creditors. The relevant provisions and principles are explained more fully below after a few words about pension scheme deficits and the Pensions Regulator.
Avoidance of Floating Charges (Insolvency Act 1986, Section 245: Corporate Insolvency Only)
Authors: Parry Rebecca
Published: March 2021

A floating charge, of course, increases the likelihood upon the winding up of the debtor that a creditor will receive payment for sums that the creditor has advanced. Conversely, the existence of a charge over property reduces the likelihood of payment for creditors, such as those who supplied the property in the first place. Limitations have accordingly been placed on the availability of such charges in order to ensure that any creditor obtaining the advantage of this method of security has earned the priority that it confers. Section 245, which applies only in the context of liquidation and administration, provides that any floating charge that is created within a specified period of the onset of insolvency is void except to the extent that the charge holder advanced value to the debtor at the same time as, or after, the creation of the charge. Unlike many of the other avoidance provisions, the operation of section 245 is automatic and does not depend on an application being made by the liquidator or administrator. An exception to the operation of section 245 applies in the context of financial collateral arrangements.
Scotland
Authors: Parry Rebecca
Published: March 2021

The avoidance system applicable in Scotland differs in a number of respects from that applicable in England and Wales. The most striking difference is that in Scotland transaction avoidance laws appear both in statute and at common law. In addition, the avoidance laws in Scotland are different in content from those in England and Wales, although the underlying aims of each are broadly similar.
Other Laws Enabling Transaction Avoidance
Authors: Parry Rebecca
Published: March 2021

A wide range of powers that may usefully supplement the transaction avoidance provisions of the Insolvency Act 1986 are available. This is an issue that has been raised throughout this book, with possible areas of overlap between remedies being considered in relation to each of the transaction avoidance provisions. In addition, relevant laws which appear in the Companies Act 2006 were considered in Chapter 18, and the hugely important misfeasance action was considered in Chapter 19.
EMU as Constitutional Law
Authors: De Witte Bruno
Published: March 2021

The creation of Economic and Monetary Union (EMU) was an important enterprise of constitutional engineering and expressed a belief in the capacity of constitutional law to accomplish economic objectives. The Treaty of Maastricht was prepared by not one but two intergovernmental conferences, namely one on ‘European Political Union’ and another one on ‘European Monetary Union’. The negotiators participating in the latter of the two conferences were given a free hand in drafting a lengthy set of norms that were eventually included in the Maastricht Treaty, either in the body of the new Treaty or in detailed Protocols. At the moment of entry into force of the Maastricht Treaty, all EMU law was therefore constitutional law of the European Union, and still today, when many further norms of secondary law have been enacted, an important part of EMU law is still of a formally constitutional nature, by being contained in the text of the Treaty on the Functioning of the European Union (TFEU) and its annexed Protocols. There is thus a consistent body of EMU constitutional law, which is the object of this contribution.
The Institutional design of Financial Supervision and Financial Stability
Authors: Payne Jennifer
Published: March 2021

Since the inception of the European project, the creation of a single financial market has been a core policy goal. The ambition of the project subsequently expanded to include both economic and monetary union (EMU), a plan which came to fruition with the establishment of a single currency for euro area countries at the turn of the century. EMU has been said to be a ‘cornerstone of the European Union’, and may be regarded as a political as much as an economic endeavour.
Foreign-exchange operations of the ECB and exchange-rate policy
Authors: Thiele Alexander
Published: March 2021

According to Article 127(1) TFEU, it is the core purpose of the European System of Central Banks (ESCB) (with the European Central Bank (ECB) at the top) to maintain price-stability within the European Monetary Union (EMU). It is this task that is usually referred to, where the ‘monetary mandate’ or the ‘monetary policy’ of the ECB is mentioned. However, though this monetary mandate is not only the most prominent but most certainly also the most disputed task of the ESCB–especially since the financial and euro crisis–it is by no means the only task transferred onto the ESCB (respectively the ECB) by the Member States. According to Article 127(2) TFEU, the basic tasks to be carried out by the ESCB in actual fact include the conduct of foreign-exchange operations and thus the ‘foreign policy’ relations of the euro area and the euro with other currency areas (mainly states) and currencies. When creating the EMU, however, it was highly disputed whether the ECB or the Council should be the competent authority to conduct or rather to decide on such operations.
Deceit and Duress
Authors: Kötz Hein
Published: March 2021

This chapter examines how the law deals with contracts which a party entered into under deceit or duress. There is deceit if a party knows that what he said was false or that it might well not be true. Special emphasis is given to cases in which non-disclosure may be treated as deceit, for example, where a person breaches a ‘duty of disclosure’ by deliberately keeping quiet about facts that he knew, or should have known, were of particular importance to the other party. The chapter also discusses deceit made by a third party and claims for damages due to deceit. It concludes with an analysis of the elements of duress, what the contract law says about duress, and the question of whether avoidance is possible when duress is committed by a third party.
Claims for Performance
Authors: Kötz Hein
Published: March 2021

This chapter examines what the contract law says about claims for performance. It first considers the difference between the civil law in which claims for the performance of the contract are generally admitted, and the common law where ‘specific performance’ is awarded only exceptionally. A closer analysis shows, however, that the gap between the civil law and the common law is not as great as it might appear, and it is on that basis that the chapter discusses in some detail the harmonisation of the European rules on claims for the performance of contracts. The chapter also looks at the idea of an ‘efficient breach of contract’ as it relates to claims for performance.
Agency and Representation
Authors: Kötz Hein
Published: March 2021

This chapter examines the concept of agency or representation, in which contracts are negotiated and concluded by persons other than the parties themselves. It first traces the historical development of agency and representation and discusses their economic importance. It then considers how a power of representation or authority to act for another is granted, what the scope of the agent’s authority is, how agency or representation may be terminated, and what the conditions are which may prevent the principal from raising the defence of the agent’s lack of authority. The chapter concludes with a discussion of the effects of disclosed and undisclosed agency.
The Meaning of Insolvency
Authors: Anderson Hamish
Published: March 2021

Insolvency proceedings relate to insolvent companies. Insolvency is therefore a central concept and the law requires a test of insolvency which can be used to determine whether a company is amenable to such proceedings and to regulate the availability of certain other rights and remedies concerning transaction avoidance which apply to protect the integrity of an estate which is the subject of insolvency proceedings. It is a curiosity of the Act that despite its title it provides no definition of ‘insolvency’ for these purposes but refers instead to ‘inability to pay debts’. The advantage of this looser terminology is that it embraces both cash-flow (or ‘commercial’) and balance sheet measures of a company’s financial difficulty.
English Corporate Insolvency Proceedings
Authors: Anderson Hamish
Published: March 2021

There are currently three forms of corporate insolvency proceeding in English law. Liquidation (whether compulsory or voluntary) is a terminal proceeding designed to realize the assets of the debtor company and distribute the realized value amongst creditors according to their respective priorities, following which the company is dissolved. Administration and company voluntary arrangements (CVA) (not mutually exclusive and sometimes used together) are two different forms of proceeding which are primarily designed to preserve going concerns. Although the three procedures are constituted as standalone procedures under the Act, there is considerable room for movement from one procedure into another in order to achieve an optimal outcome for creditors.
Administration
Authors: Anderson Hamish
Published: March 2021

The defining characteristic of administration is the imposition of a temporary stay on creditor remedies—usually referred to as the ‘moratorium’. As originally conceived the procedure was merely a means to an end and not an end in itself. However, administration was radically recast by amendments made to the Act by the Enterprise Act 2002 which enabled administrators to make distributions to creditors and for the company to be dissolved following administration without the need for a liquidation. In consequence of those changes, administration can take one of two forms. First, and as before, it may be used simply to protect the insolvent estate whilst a rescue or a more advantageous realization of assets takes place, following which the company will either survive or it will be wound up in accordance with the procedures considered in the previous chapter.
European Union Communications Law
Authors: Walden Ian
Published: March 2021

The past thirty years and more has seen an extraordinary level of policy, legal, and regulatory activity in the telecommunications sector within the European Union (EU); with well over 100 different directives, decisions, regulations, recommendations, and resolutions, relating to every aspect of the industry, having been adopted since 1984. Such activity is a clear illustration that market liberalization should not be confused with concepts of market deregulation. While from a UK perspective, initial EU regulatory intervention in the telecommunications sector seldom impinged on the wider public consciousness, largely due to developments already commenced domestically, some Member States experienced significant political fall-out from Commission initiatives in the area, such as public sector industrial action.
Access and Interconnection
Authors: Walden Ian
Published: March 2021

For the purposes of this chapter, and under the European Union’s Access Directive, the term ‘access’ encompasses all kinds of contractual (private law) arrangements under which an operator or service provider acquires services from another operator in order to enable it to deliver services to its own customers. The issues discussed in this chapter relate to the regulated (public law) rights of operators to access each others’ networks and services at a wholesale level, not the rights of end users to access telecommunications services, at a retail level.
Convergence
Authors: Mac Síthigh Daithí
Published: March 2021

The purpose of this chapter is to explain, in the context of telecommunications law and regulation, the regulation by EU and UK law of audiovisual and radio media services. Overarching principles are found in the Audiovisual Media Services Directive, which takes an approach described as technologically neutral, but established two top-level categories of regulation, for television (or linear) services and on-demand (or non-linear) services. In the case of television services, a wide range of standalone works and comprehensive Sections or chapters on the regulation of broadcasting are available. As such, the focus here (with a view to the interests of readers) is on licensing of content and multiplex services by Ofcom and the handling of complaints about those services, with a bias towards the standard licences for services on cable, satellite, internet, and digital terrestrial platforms, and the regulation of DTT multiplexes and of on-demand services, as opposed to detailed description of the BBC and the commercial public service broadcasters. Indeed, the European Court of Human Rights has regularly found that the regulation of communications infrastructure can have a real impact on the receiving and imparting of information.
International Regulatory Law
Authors: Walden Ian
Published: March 2021

Telecommunications is an inherently trans-national technology. As such, the development of telecommunications has always required substantial cooperation and agreement between nation states. Cooperation can be seen at a number of different levels, including the need for adherence to certain standards, both technical and operational. Historically, the need for ongoing cooperation between states has meant the establishment of inter-governmental organizations, of which the International Telecommunication Union (ITU) lays claim to the oldest pedigree of any such organization. These inter-governmental institutions have been responsible for laying down much of the framework that comprises international telecommunications law and regulation.
Definitions and Interaction between Duties
Authors: Rosemary Langford
Published: March 2021

The purpose of this chapter is to lay the foundation for critical analysis in subsequent chapters, in providing an overview of the key aspects of regulation of conflicts in each jurisdiction. The interaction between statutory and general law duties is scrutinized and the importance of coherence between these duties is discussed. This topic has attracted considerable academic attention and the model of statutory directors’ duties in the Companies Act 2006 (UK) has highlighted the benefits of an integrated structure of directors’ duties. The scope of the term ‘director’ in each jurisdiction is outlined. In this respect, ‘directors’ are not limited to those who are properly appointed but can extend to others. Moreover, duties vary depending on the type of director involved.
Conflicts of Duties
Authors: Rosemary Langford
Published: March 2021

A key facet of the duty to avoid conflicts (the conflicts rule) is the avoidance of unauthorized conflicting duties. This principle applies where a director or other fiduciary faces a conflict between inconsistent duties. In the corporate setting this generally occurs when one person is on the board of two companies with different interests. It could, however, also occur where a director is a partner or a legal or other adviser to the company and thus owes multiple sets of duties. Sections 175(7) and 176(5) of the Companies Act 2006 (UK) specifically include such conflicts. This chapter critically analyses regulation of conflict of duties, as well as relevant statutory provisions.
Corporate Opportunitie
Authors: Rosemary Langford
Published: March 2021

Corporate opportunities are opportunities that arise as a result of a director’s position or opportunities that are relevant to the company’s business. The taking up of corporate opportunities by directors is governed at general law principally by the duty to avoid profits (the profits rule) but also by the duty to avoid conflicts (the conflicts rule), as well as by statutory duties and corporate governance principles. This chapter first outlines the general law position given that it subsists in a number of jurisdictions and that the interpretation of the statutory duties in the Companies Act 2006 (UK) is guided by this jurisprudence. The chapter then provides detailed examination of the relevant statutory duties and includes comments on relevant corporate governance principles.
Absence of Practitioner
Authors: Hamer Kenneth
Published: March 2021

Lord Rodger of Earlsferry, at [54]–[68] (prosecuting counsel looked to see whether there are any areas that ought to be highlighted in view of the fact that the defendants were not present or represented; the judge’s summing up was obviously of even greater importance than usual; the jury were told specifically that they must not speculate as to the reasons for the defendants’ absence, that they should not assume that the defendants’ failure to attend court in any way at all established that either or both of them were guilty, and that they should carefully assess the evidence as they would have done had the defendants been present and had they been represented by counsel.)
Consensual Disposal
Authors: Hamer Kenneth
Published: March 2021

General Medical Council (Fitness to Practise) Rules 2004, rule 10 (if, after considering the allegation, it appears to the case examiners that (a) the practitioner’s fitness to practise is impaired, or (b) the practitioner suffers from a continuing or episodic physical or mental condition that, although in remission at the time of the assessment, may be expected to cause a recurrence of impairment of the practitioner’s fitness to practise, the case examiners may recommend that the practitioner be invited to comply with such undertakings as they think fit—including any limitations on the practitioner’s practice—rule 10(2); the registrar shall not invite the practitioner to comply with any such undertakings where there is a realistic prospect that, if the allegation were referred to a fitness to practise panel, the practitioner’s name would be erased from the register—rule 10(5)).
Double Jeopardy
Authors: Hamer Kenneth
Published: March 2021

The claimant, a police officer, claimed that the double jeopardy rule and/or the doctrine of res judicata precluded the bringing or continuation of disciplinary proceedings in such circumstances. On 14 December 1998, the claimant was charged with conspiracy to pervert the course of justice. At a committal hearing on 17 May 1999, the district judge at Bow Street Magistrates’ Court declined to commit the claimant (and his co-accused) for trial and accordingly discharged them. On 8 June 1999, Eady J refused the Crown’s application for a voluntary bill of indictment on the same charge. The claimant was subsequently charged with an offence of discreditable conduct pursuant to the Police (Discipline) Regulations 1985.
Findings of Fact
Authors: Hamer Kenneth
Published: March 2021

Most regulatory bodies provide for fitness to practise and disciplinary hearings to be conducted in stages, and for findings of fact to be considered and announced by the tribunal or committee before consideration of misconduct, impairment and sanction.
In Camera Discussions
Authors: Hamer Kenneth
Published: March 2021

Panels are frequently required by their rules to deliberate in private before reaching and announcing certain decisions. In the absence of an express rule, panels will invariably retire before reaching a decision on the facts, impairment, or sanction. Where facts have been admitted, the chair may announce that such facts have been found proved. Examples of rules that contain provision for deliberation in private.
Interim Orders (General Principles)
Authors: Hamer Kenneth
Published: March 2021

H appealed against the order of Bean J ([2006] EWCA 2699 (Admin)) extending, for a period of six months, an order for the suspension of H’s registration as a medical practitioner previously made by the Interim Orders Panel (IOP) of the General Medical Council (GMC). The judge’s order was made under section 41A(7) of the Medical Act 1983 (‘the relevant court may extend or further extend for up to twelve months the period for which the order has effect’). The original order for eighteen months was an interim suspension order, which was later substituted by an order for interim conditional registration.
Legal or Other Representation
Authors: Hamer Kenneth
Published: March 2021

General Medical Council (Fitness to Practise) Rules 2004, rule 33 (a doctor may be represented by a solicitor or counsel, a representative of any professional organization of which they are a member, or, at the discretion of the committee or panel, a member of their family or other person; a person who gives evidence at a hearing is not entitled to represent or accompany the doctor to that hearing)
Medical Advisers
Authors: Hamer Kenneth
Published: March 2021

The statutory provisions and rules of many regulators provide for the appointment of medical and other specialist advisers to assist the tribunal or committee.
Public or Private Hearing
Authors: Hamer Kenneth
Published: March 2021

The rules invariably provide that the committee or tribunal shall sit in private where it is considering the physical or mental health of the practitioner unless there is a public interest in holding the hearing in public that outweighs the needs to protect the privacy or confidentiality of the registrant or others concerned. Examples include General Medical Council (Fitness to Practise) Rules 2004, rule 41(3)–(6), Nursing and Midwifery Council (Fitness to Practise) Rules 2004, rule 19(2)–(2A), and General Pharmaceutical Council (Fitness to Practise and Disqualification etc) Rules 2010, rule 39(2)). The Bar Standards Board Fitness to Practise Regulations (which are concerned with whether a barrister is unfit to practise by reason of an adverse physical or mental condition), rE335, provides that the hearing before a panel or review panel shall be in private, unless the individual requests a public hearing.
The Statutory Scheme
Authors: Coulson The Rt Hon. Lord Justice
Published: March 2021

The Scheme is designed as a fall-back position; if the construction contract in question does not contain the adjudication provisions set out in s108, or if it does not include the payment provisions set out in s109 of the 1996 Act, then the provisions of the Scheme apply as implied terms of the contract (s114(4)). Although many of the standard forms of construction and engineering contracts now contain specific adjudication and payment provisions that comply with the Act, so the parties do not need to have regard to the Scheme, there are many construction contracts, particularly for smaller works, which do not contain such provisions.
General Principles
Authors: Coulson The Rt Hon. Lord Justice
Published: March 2021

The TCC and the Court of Appeal have repeatedly made it plain that errors of fact, errors of law and procedural errors will not, without more, justify a failure to comply with the adjudicator’s decision. As a result, the grounds for impeaching such a decision are extremely limited. By far the most common attack on the decision of an adjudicator is the submission that the adjudicator had no jurisdiction to reach that decision. Because courts have been clear that a decision will be summarily enforced unless it is one that the adjudicator did not have the jurisdiction to reach, commercial necessity has led defendants to take all manner of points to support the proposition that the adjudicator had no relevant jurisdiction.
The Concept of an ‘Appeal’
Authors: Naômé Caroline
Published: March 2021

The appeal is a form of action by which a party claims that the Court of Justice should set aside a decision of the General Court for infringement of a rule of law. It must be directed against a decision of the GCEU. In the context of the ECJ and its case-law, it is difficult to identify what constitutes a ‘decision’ of the General Court. The object of the appeal must be the setting aside of that decision and not a re-assessment of the substantive issue, a decision on a new claim or an amendment of the grounds of the decision. The appellant must submit a criticism of the decision under appeal. Accordingly, a new plea relating to the substance of the dispute is inadmissible, unless it concerns a matter of public policy. The Court of Justice does not review assessments of fact made by the General Court.
The Parties to Appeal Proceedings
Authors: Naômé Caroline
Published: March 2021

This chapter analyses the position of those participating in appeal proceedings before the Court of Justice (ECJ). It describes the parties entitled to bring an ordinary appeal, or an appeal against a refusal of leave to intervene or against an interlocutory decision. The possibility, for interveners at first instance, to bring an appeal is limited, because they must show that the decision of the General Court (GCEU) directly affects them. An exception to the general rules is allowed in the case of Member States and Union institutions, which, except in staff cases, may bring an appeal even if they were not parties to the proceedings at first instance. The chapter also describes the position of ‘other parties to the relevant case’ and of those who wish to intervene for the first time when the case is at the appeal stage.
Article 1 Subject-matter and objectives
Authors: Hijmans Hielke
Published: March 2021

The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her.
Article 4(10). Third party
Authors: Tosoni Luca
Published: March 2021

Article 4(1) (Definition of ‘data subject’); Article 4(7) (Definition of ‘controller’); Article 4(8) (Definition of ‘processor’); Article 4(9) (Definition of ‘recipient’); Article 6(1)(f) (Processing based on legitimate interests); Article 13(1)(d) (Information to be provided to data subjects); Article 14(2)(b) (Information to be provided to data subjects); Article 29 (Processing under the authority of the controller or processor).
Article 4(23). Cross-border processing
Authors: Tosoni Luca
Published: March 2021

Article 4(2) (Definition of ‘processing’); Article 56 (Competence of the lead supervisory authority); Article 62(2) (Joint operations of supervisory authorities); Article 63 (Consistency mechanism) (see too recital 135).
Article 30 Records of processing activities
Authors: Kotschy Waltraut
Published: March 2021

Article 13 (Information to be provided where personal data are collected from the data subject); Article 14 (Information to be provided where personal data have not been obtained from the data subject); Article 15 (Right of access by the data subject); Article 24 (Responsibility of the controller); Article 32 (Security of processing); Article 35 (Data protection impact assessment); Article 37 (Designation of a data protection officer); Article 49 (Derogations for specific situations concerning transborder data flows); Article 83 (General conditions for imposing administrative fines)
Article 33 Notification of a personal data breach to the supervisory authority
Authors: Burton Cédric
Published: March 2021

Recital 88; Article 4(12) (Definition of a personal data breach); Article 5(2)) (Accountability principle); Article 28(3)(f) (Processor); Article 32 (security of processing); Article 34 (Communication of a breach to the data subject) (see too recital 86); Article 70(1)(g)(h) (Tasks of the Board); Article 83(4)(a) (Fines for infringement of Article 33).
Article 43 Certification bodies
Authors: Leenes Ronald
Published: March 2021

Recital 77; Article 5(2) (Principle of accountability); Article 42 (Certification); Article 55 (Competence of the supervisory authorities); Article 56 (Competence of the lead supervisory authority); Articles 57(1)(p)–(q) (Tasks of the supervisory authorities); Article 58(3)(e) (Powers of the supervisory authorities); Article 63 (Consistency mechanism); Article 64(1)(c) (Opinions of the board); Article 70(1)(o)–(q) (Tasks of the board) (see too recital 77); Article 92 (Exercise of delegated acts by Commission) (see too recitals 166 and 168).
Article 52 Independence
Authors: Zerdick Thomas
Published: March 2021

The establishment of supervisory authorities in Member States, empowered to perform their tasks and exercise their powers with complete independence, is an essential component of the protection of natural persons with regard to the processing of their personal data. Member States should be able to establish more than one supervisory authority, to reflect their constitutional, organisational and administrative structure.
Article 57 Tasks
Authors: Hijmans Hielke
Published: March 2021

Article 4(21) (Definition of a supervisory authority); Article 28(8) (Adoption of processors’ standard contractual clauses); Article 36(2) (Prior consultation) (see too recitals 84 and 94); Articles 40(1), (5) and 41(3) (Codes of conduct) (see too recital 98); Article 42(1), (5), (7) and 43(1) (Certification) (see too recital 100); Article 46(2)(d), (3) and (4) (Standard data protection clauses for data transfers) (see too recitals 108–109); Article 47 (Approval of binding corporate rules); Article 50 (International cooperation for the protection of personal data) (see too recitals 104 and 116); Article 58 (Powers) (see too recitals 129, 148 and 150); Article 59 (Activity reports); Article 60 (Cooperation between supervisory authorities); Article 61 (Mutual assistance between supervisory authorities); Article 62 (Joint operations of supervisory authorities); Article 70 (Tasks of the Board, including promotion of cooperation between supervisory authorities; contribution to activities of the Board); Article 77 (Complaint handling and investigations) (see too recital 141); Article 83 (Administrative fines) (see too recital 148).