bluuebunny/crossref_metadata_2025 huggingface dataset:
Rule 261 Date of pleadings
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

All pleadings and documents lodged with pleadings shall bear a time and a date which shall be the time and date of receipt of pleadings in electronic form in the Registry. The time shall be the local time of the Registry. The Registrar shall be responsible for time and date making.
Rule 270 Scope of this Section
Authors: von Falck Andreas , Stoll Christian
Published: March 2021

Rules 270 ff govern service of documents. Service is effected within the territory of the UPC system ex officio by the Registry. Service means the formal delivery of legal acts within the territory of the UPC to parties and third parties. The delivery of an official document will provide the addressee with notice of the content of the document and will put him in a position to properly prepare his action or defence. Therefore, service ensures observance of the right to be heard and the right to a fair trial (Art 47 CFR). Furthermore, service has the effect of commencement of the proceedings (→ Rule 224.1(a) UPCARoP).
Exclusion from the proceedings
Authors: Tilmann Winfried
Published: March 2021

This Rule is self-explanatory. Exclusion from the proceedings is taken by the Court as a means of final recourse after one or more formal warnings have been issued. Exclusion should not be issued by one judge alone (judge rapporteur, single judge, standing judge), but by the panel before which the proceedings are pending. In addition, the competent public prosecutor’s office may be informed in the case of criminal acts.
Patent attorneys’ right of audience
Authors: Tilmann Winfried
Published: March 2021

Pursuant to Art 48(4) UPCA, representatives of the parties (Art 48(1) and (2)) may be assisted by patent attorneys who are allowed to speak at hearings of the Court in accordance with the Rules of Procedure.
Accelerated proceedings before the European Patent Office
Authors: Plassmann Clemens , Dorn Stephan
Published: March 2021

The Court may of its own motion or at the request of a party request that opposition proceedings or limitation proceedings (including any subsequent appeal proceedings) before the European Patent Office be accelerated in accordance with the proceedings of the European Patent Office. The Court may stay its proceedings in accordance with Rule 295(a) pending the outcome of such request and any subsequent accelerated proceedings.
Precedence
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 341 governs the precedence of the judges within the UPC. The precedence does not affect the competence or the weight of the vote. The vote of every judge has the same weight; only in the case of an equal vote will the vote of the presiding judge prevail pursuant to Art 35(1) cl 2 UPC Statute. All judges have equal rights irrespective of their precedence. Every judge is independent and not bound by any instructions (Art 17(1) UPCA). A higher ranking judge, therefore, has no authority over lower ranking judges. Lower ranking judges can also be designated as judges rapporteur pursuant to Rule 18. The functions of the President of the Court of First Instance or the Court of Appeal can also be exercised by any judge invited by the respective President to that effect. For the position of the presiding judge of a panel (not to be confused with the presiding judge of the division or section who is appointed by the Presidium (Rule 345.3)), seniority is only taken into account if the presiding judge is neither determined by the Presidium nor agreed on by the respective panel.
Decision by default (Court of First Instance)
Authors: Chakraborty Martin , Dormann Verena
Published: March 2021

Rule 355 allows the UPC to issue decisions by default. This provides a means for the UPC to enforce the parties’ duty to promote the proceedings as it prevents parties from blocking the proceedings by not participating. The possibility to block proceedings contradicts the principle of expediting proceedings as provided in the UPCA. According to this principle, the UPC should ensure expeditious and high-quality decisions taking into account the need for proportionality and flexibility. Proceedings before the UPC are determined by the parties and reliant on their actions. The Court is bound to the request submitted by the parties (Art 76(1) UPCA). An efficiency means of urging the parties, in their own interests, to participate in the proceedings is to hold out the prospect of a disadvantageous enforceable decision.
Conditions regarding the financial situation of the applicant
Authors: Gundt Miriam
Published: March 2021

Rule 377A is self-explanatory. The determinations of the Administrative Committee according to para 3 will be printed in the next edition.
Retaining a Proprietary Interest by Agreement
Authors: Calnan Richard
Published: March 2021

This chapter explains the requirements for the retention of a proprietary interest. It distinguishes the creation of a proprietary interest from the retention of such an interest. It further discusses how a retained proprietary interest can be lost. The nemo dat principle is discussed. It discusses the reservation of title to goods, exceptions to the nemo dat principle, and the effect of mixing, fixing, or manufacturing assets.
Tracing at Law
Authors: Calnan Richard
Published: March 2021

This chapter explains what tracing is. Differing descriptions of the expression are discussed. Tracing does not seek to examine intention; tracing imposes a proprietary interest. The chapter discusses the principles of tracing at common law and how a person becomes a legal owner of a substitute asset. In particular, the rules as to indentification of a substitute asset are discussed. The chapter contains a detailed discussion of the case law on tracing at common law. Attempts to distinguish tracing from ‘following’ are discussed. The chapter distinguishes tracing against the wrongdoer from tracing against a third party.
Titles VII and VIII: Financing Arrangements and Penalties
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

In most insolvencies, liquidity is a problem. This is no different in bank insolvencies, which are often triggered by liquidity stress. Moreover, the application of resolution tools may require additional funding; a transfer of part of the failing institutions’ assets and liabilities to a private purchaser, for instance, may come at a cost if the value of the liabilities transferred exceeds the value of the assets. In addition, the effectiveness of the resolution tools applied may depend on the availability of short-term funding for an institution or a bridge institution, the provision of guarantees to potential purchasers, or the provision of capital to the bridge institution (recital (103)). The cancellation or conversion of debt as a result of a bail-in may result in a better liquidity position, for it would reduce the relevant institution’s payment obligations. But this better position will only materialize over some time. Thus, any resolution will require funding.
France
Authors: Moss QC Gabriel , Wessels Bob , Haentjens Matthias
Published: March 2021

Directive 2014/54/EU of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment companies (the Bank Recovery and Resolution Directive, or the ‘BRRD’) was implemented recently into the French legal system, enacted by Law dated 23 July 2013, Order dated 20 August 2015, and the following Decrees of 11 September 2015.
Article 7 TEU
Authors: Kochenov Dimitry
Published: March 2021

On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.
Article 35 TFEU
Authors: Klamert Marcus , Moustakali Maria , Tomkin Jonathan
Published: March 2021

Article 34 EC Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
Article 40 TFEU
Authors: Bouquet André , Erlbacher Friedrich , Lewis Alexandre-Xavier-Pierre
Published: March 2021

Article 34 EC In order to attain the objectives set out in Article 39, a common organisation of agricultural markets shall be established.
Article 155 TFEU
Authors: Garben Sacha
Published: March 2021

Article 139 EC Should management and labour so desire, the dialogue between them at Union level may lead to contractual relations, including agreements.
Article 168 TFEU
Authors: Garben Sacha
Published: March 2021

Article 152 EC A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Article 193 TFEU
Authors: Garben Sacha
Published: March 2021

Article 193 TFEU lays down the principle of minimum harmonization for measures adopted on the environmental legal basis of Article 192 TFEU. Its wording suggests a constitutional obligation on the EU institutions and a clear limit on the scope of any measures adopted on the basis of Article 192 TFEU. Many measures adopted on the basis of Article 192 TFEU themselves also contain a similar provision, indicating that MS shall not be prevented from maintaining or adopting more protective measures. However, the ECJ has confirmed that also in the absence of such a specific provision in an environmental measure, the minimum harmonization principle applies.
Article 199 TFEU
Authors: Kochenov Dimitry
Published: March 2021

Article 183 EC Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Treaties.
Article 240 TFEU
Authors: Loewenthal Paul-John
Published: March 2021

Article 207 EC A committee consisting of the Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases provided for in the Council’s Rules of Procedure.
Article 267 TFEU
Authors: Schima Bernhard
Published: March 2021

Article 234 EC The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings.
Article 296 TFEU
Authors: Loewenthal Paul-John
Published: March 2021

Article 253 EC Where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality.
Article 53 CFR
Authors: Lock Tobias
Published: March 2021

Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.
Article 5 TEU
Authors: Klamert Marcus
Published: March 2021

The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
The Union Budget
Authors: Crowe Richard
Published: March 2021

The budget of the European Union is, in many respects, an innovative transnational public finance experiment. The transition to a system of own resources in the 1970s marked an attempt to push beyond the traditional model for financing international organizations (through ‘national contributions’ from the budgets of the participating states) to establish an autonomous European budgetary order that would complement the ‘new legal order’ of Community law. Expectations may not have been fully realized in that regard, but today’s Union does enjoy a level of budgetary autonomy far exceeding that accorded to other treaty-based organizations. On the expenditure side, over 94 per cent of the budget is invested in common European policies, and it performs transnational redistributive functions in certain policy sectors. Moreover, the institutional framework for the establishment and control of the budget includes particular features, such as a strong parliamentary dimension to decision-making on expenditure and an independent Court of Auditors, that are more characteristic of the budgetary system of a state.
Sale of Goods
Authors: Jansen Nils , Zimmermann Reinhard
Published: March 2021

It seems clear that sale is a contract providing for the exchange of a thing for money. Yet, in historical and comparative perspectives, the contours become blurred. What is a thing? What is money? Wherever a comprehensive statement of the rules governing sales was attempted, these questions had to be answered. As the following survey will show, some issues (like the correct classification of contracts for goods to be manufactured) seem perennial and ubiquitous, others (like the Romans’ difficulties regarding generic sales) have long become obsolete, and some (like the question of whether computer programs or Bitcoins can be sold like corporeal things) have only recently emerged.
The Economics of European Monetary Integration: The Pros and Cons of EMU Membership
Authors: Masciandaro Donato , Romelli Davide
Published: March 2021

The recent global crisis challenged the stability of the European monetary integration process. That process, which is closely linked to the evolution of the European Monetary Union (EMU), has gone through two stages: the Common Market era, which ran from 1958 until 1993, and the Monetary Union era, which started in 1994 and gained new impetus after the global crisis with the publication of the Four Presidents’ Report in December 2012. The aim of the EMU has been to exchange rates, inflation and interest rates in order to boost capital mobility and trade, thereby promoting the growth of member countries. Thus far, the data shows that there has been nominal convergence of inflation and interest rates, while real convergence of per capita income has not occurred among the original euro area participants.
Banking Supervision
Authors: Christoph Ohler
Published: March 2021

The sovereign debt crisis in Europe that started in early 2010 was the ground on which profound institutional reforms of the Economic Monetary Union (EMU) were put into place. It was triggered by the inability of Greece, Ireland, Portugal, and later on also Spain, to continue borrowing from the markets when fears increased that these Member States could default on their sovereign debt. The reasons why these Member States lost their access to the financial markets differed considerably, however. Greece had been suffering from a high level of indebtedness for many years, while rising sovereign debt in Ireland, Portugal and Spain was the result of public bail-outs of the national banking systems. The rescue measures in the latter countries had become necessary when, due to the financial crisis that preceded the debt crisis, a boom in the private housing markets came to a sudden halt. Common features of the development in all these countries were the high levels of sovereign debt and the strong dynamics of indebtedness, so that the governments lost their ability to borrow freely and at interest rates acceptable in the context of public budgetary systems.
State Aid For Financial Institutions
Authors: Müller-Ibold Till
Published: March 2021

Banks play a central role in market economies. They facilitate payments and grant credit and they convert short to medium term deposits into much longer loans to companies, consumers, and governments, which are irreplaceable functions economically. But they do not only have a large economic impact; their proper functioning affects everybody’s day-to-day life. Any challenge to such proper functioning is therefore an immediate and significant political concern.
EMU Reform
Authors: Craig Paul , Markakis Menelaos
Published: March 2021

Discourse concerning Economic and Monetary Union (EMU) reform is complex. This is in part because of the inherent complexity of the subject matter, and in part because the outcome, whatsoever that might be, will not be determined purely by economics. The European Union (EU) is quintessentially the art of the possible, and politics is of considerable importance in determining the parameters in this respect. There is, moreover, a temporal dimension to discussion of EMU reform, which in this context signifies the fact that the likely direction of change emerges over time, with successive high-level reports operating incrementally to lay the groundwork for change. Thus, the key staging posts for the next stage of EMU reform include the Four Presidents’ Report, the Five Presidents’ Report, the Commission’s Reflection Paper, and its 2017 Roadmap for completion of EMU.
Interpretation of Contracts
Authors: Kötz Hein
Published: March 2021

This chapter examines the process involved in the interpretation of a contract. Interpretation is required if contracting parties agree on what they said or wrote, but differ as to what it means. There are two possible, but contrary, viewpoints. The first is that precedence is given to the intention of the parties; the other gives precedence to the external fact of the expression. This tension between more subjective and more objective interpretations—the ‘intention theory’ and the ‘expression theory’—dominates European legal history. The chapter first provides an overview of objective interpretation before discussing the maxims or rules of thumb used by judges to interpret contracts. It also considers various forms of constructive interpretation of a contract, with particular emphasis on collateral duties and the implication of terms by default rules.
The Control of Unfair Contract Terms
Authors: Kötz Hein
Published: March 2021

Where the overall validity of a contract is not in doubt, a party may be allowed to rely on the invalidity of one of its clauses because it has not become part of the contract or is found to be ‘inappropriate’, ‘unreasonable’, ‘unfair’, contravenes ‘good faith’ or in some other way ‘grossly disadvantages’ a party. Some legal systems allow the judge to strike down such clauses only where they have been preformulated by one party and thus form part of its ‘standard terms of business’. Judicial control may also be limited to cases where the clause disadvantages a ‘consumer’. The chapter discusses the purposes of the judicial control of such clauses and the reasons on which their ‘unfairness’ may be based. In a final section the chapter deals with the preventive control of such clauses by way of criminal sanctions, group actions, and administrative controls.
Termination of Contracts
Authors: Kötz Hein
Published: March 2021

This chapter examines what the contract law says about termination of contracts, focusing on the conditions under which the creditor is entitled to terminate the contract and how the parties can claim back what they have already rendered. Can the contract be terminated only where the breach is ‘fundamental’? Can it be terminated immediately or only after a reasonable extra period for performance or cure has been set and the other party has failed to comply with it? When must a contractual time stipulation be regarded as of the ‘essence’ of the contract? In particular, the chapter looks at the impossibility of performance, anticipatory non-performance, delayed performance, incomplete performance, and defective performance. It also explains how the law deals with the question of restitution.
Contracts for the Benefit of Third Parties
Authors: Kötz Hein
Published: March 2021

This chapter examines cases where proper performance of a contract would benefit persons other than the contractors themselves, and discusses the question whether a third party should be given a right to ask for the performance of the contract or for damages caused by its breach. It first provides a historical background on contracts for the benefit of third parties and considers their economic importance. It then looks at the intention of the parties, contracts protective of third parties, claims by third parties that are not based on the contracting parties’ express or implied intention, and whether a third party may be affected by a limitation of liability agreed by the contracting parties. It also reviews the defences available to the promisor if suit is brought by the third party and the effect which a modification or termination of the contract may have for the third party’s rights.
Creditors’ Rights as a Class Remedy
Authors: Anderson Hamish
Published: March 2021

The concept of insolvency proceedings as a class remedy is one consequence of the collective nature of insolvency proceedings under the Act. It explains the need for creditors’ rights to be exercised in accordance with the purposes of the legislation. The concept is a judicial construct which, although a logical progression from the statutory rules, is not mentioned in the legislation itself.
Communications Privacy
Authors: Walden Ian
Published: March 2021

The right to privacy of communications is one of the most enduring and widely recognized of the constellation of rights known as privacy law. While privacy remains a notoriously elusive concept, our communications activities have been consistently recognized as a fundamental element of our private life, placed side-by-side with notions of family and home. While the terminology used in international instruments and national constitutions may have evolved over time to reflect changing technologies, from ‘correspondence’ to ‘communications’, the centrality of communications privacy to our private life remains undisputed.
Disclosure and Declaration of Interests
Authors: Rosemary Langford
Published: March 2021

One instance of obvious conflict between the interests of the company and those of a director concerns contracts entered between the director (or an individual or entity associated with the director) and the company, also referred to as ‘self-dealing’. A classic example of self-dealing is the case of Aberdeen Railway Company Ltd v Blaikie Brothers, in which the director and chair of a company, Mr Blaikie, had a conflict of interest due to his role as managing partner of the firm that supplied office furniture to the company. This case was outlined in Chapter 4 where it was shown that, despite the fact that the price paid for the furniture was fair, the company was entitled to have the contract set aside due to Mr Blaikie’s conflict. Interestingly, some jurisdictions now provide a defence where the contract is fair to the company. Case law from each of the jurisdictions provides a rich source of examples of such conflicts. These include payment for services or purchase of goods, transfer of company money or assets to directors and their associates, and usurpation of company business. Some of these cases involve multiple directorships and corporate opportunities, which are more specifically discussed in Chapters
The Role of Other Duties
Authors: Rosemary Langford
Published: March 2021

The general law duties to avoid conflicts and profits (the conflicts and profits rules) do not regulate all of the conflicts encountered by a director. In particular, where the conflict or profit involves the interests of a third party (such as a director’s spouse or family member, a creditor, a friend or a major shareholder), the duties to avoid conflicts and profits do not necessarily apply. Instead, the duties to act in good faith in the interests of the company and for proper purposes (the best interests and proper purposes rules) are engaged. It is also the duty to act in good faith in the interests of the company that regulates the conflicts faced by directors in relation to stakeholders. This chapter examines the law concerning conflicts involving third parties and the vexed topic of the interaction between directors’ duties and stakeholder interests. Stakeholders include employees, creditors, investors, suppliers, customers, local, national and global communities, and the environment as a whole. The importance of stakeholder interests (and particularly those of employees) and engagement with stakeholders has been emphasised in recent corporate governance reforms in the UK.
Cross-appeals
Authors: Naômé Caroline
Published: March 2021

Cross-appeals were not defined by the rules relating to appeals. They flourished with the development of the case-law and the needs of the parties. This chapter offers a classification of cross-appeals and tries to identify the difficulties faced by the parties which gave rise to cross-appeals. Among those difficulties, the chapter refers to the fact that a case in which the ECJ has quashed a judgment of the General Court may be referred back to the judges who had adopted that judgment and problems linked to the notion of res judicata, the authority of judgments of the Court, to the influence of rules of national law, or to the form and content of the judgments of the General Court. The chapter ends with a description of the attempts to improve the situation by adopting a recast of the Rules of Procedure and proposing advice to parties pleading before the Court.
Choice of forum and cybercrime
Authors: Robinson Gavin
Published: March 2021

In the words of the chair of the drafting committee behind the Council of Europe Convention on Cybercrime (Budapest Convention; CCC), cybercrime ‘is a term of ‘hype’ and not a legal definition’. For Clough, there are ‘almost as many terms to describe cybercrime as there are cybercrimes’. The ‘cyber’ element is, of course, a first crucial characteristic; as Walden recalls, much of the illicit activity which qualifies as cybercrime is a (novel) subset of computer crime. Infect a computer with a virus through a floppy disk or CD, for example, and this would lack the cyber element. Some attempts at defining the phenomenon have hitched developments in cybercrime to the development of the internet itself—​as is the case for ‘e-​crime 1.0’ and ‘e-​crime 2.0’. Alternatively, a focus on the victim or target is used: crimes against computers; crimes against property; illicit content; and (comparatively new—​take cyber-​harassment, for instance) offences against the person with a cyber element.
Conflicts of jurisdiction in criminal law Lessons from European Civil Procedure
Authors: Ortolani Pietro
Published: March 2021

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-​border crimes, no hard-​law instrument regulates this matter in a binding fashion.
Choice of forum, european citizenship, and fundamental rights
Authors: Michiel Luchtman
Published: March 2021

The Court of Justice has stated that ‘the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals’. The wording highlights the differences between the European legal order (the European Union (EU) and its Member States) and the international legal order. Whereas international law is regarded as a matter between states, the Court’s characterisation of the European Union expressly makes room for individuals, EU citizens to be more precise. In line with this, Article 3(2) of the Treaty on European Union (TEU) states that the EU shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, and the prevention and combating of crime.
History and Typology
Authors: Craig Paul
Published: March 2021

This book is concerned with EU administrative law, which includes analysis of the main forms of administration through which policy is delivered, as well as the principles of judicial review. This is the rationale for the heading ‘Administration and Law’, which covers Chapters 1–8. The starting point in each chapter is to understand the particular form of EU administration, and appreciate the relevant political and legal issues. The chapters thereafter deal with ‘Law and Administration’, where the primary focus is on the principles of judicial review as they are applied to EU administration and national administration when it falls within the ambit of EU law.
Centralized Management
Authors: Craig Paul
Published: March 2021

The previous chapter charted the reforms made in the aftermath of the fall of the Santer Commission, including the emergence of a constitutional framework for Union administration embodied in the Financial Regulation 2002. The divide between centralized and shared administration was central to the reform initiatives and also to the structure of the Financial Regulation 2002, now contained in the Financial Regulation 2012. This chapter will take the story forward by considering the regime that governs centralized EU administration.
Proportionality II: Member States
Authors: Craig Paul
Published: March 2021

The discussion in the previous chapter was concerned with proportionality and EU action. We now consider proportionality and the legality of Member State action. The discussion begins with positive law and analysis of the principal areas in which proportionality is used to contest the legality of Member State action. The application of proportionality and the four freedoms will be considered, followed by examination of the case law on proportionality and equality, with the focus then shifting to the way in which proportionality constrains Member States’ implementation and application of EU legislation.
Blackstone’s Guide to The Sanctions and Anti-Money Laundering Act
Authors: Lodge Hugo D
Published: March 2021

The Blackstone's Guide Series delivers concise and accessible books covering the latest legislative changes and amendments. Published soon after enactment, they offer expert commentary by leading names on the scope, extent, and effects of the legislation, plus a copy of the Act itself. They offer a cost-effective solution to key information needs and are the perfect companion for any practitioner needing to get up to speed with the latest changes. Following the UK withdrawal from the European Union, the Sanctions and Anti-Money Laundering Act 2018 was enacted to enable the UK to continue to implement a regime originating in the EU. This book covers the implementation of a new system for the enforcement of sanctions, including a new mechanism for an appropriate minister to review listings of designated persons and a mechanism for review of that ministerial decision by the High Court. This guide covers the background and Parliamentary scrutiny through to enactment. It offers an approachable commentary to the statute, enabling practitioners to get to grips with the key provisions and the implications for practice. As with all Blackstone's Guides, this book will be in two parts; the first providing detailed commentary on the effects and scope of the Act and the second providing a full copy of the Act itself.
Review by Appropriate Minister
Authors: Lodge Hugo D
Published: March 2021

The 2018 Act introduces a strictly controlled ministerial review mechanism. The Act prevents designated persons from immediately challenging section 1 regulations before the courts, by way of judicial review. Rather, they must first request either variation or revocation of the designation from the appropriate Minister (at the Treasury or Secretary of State level). Only after that initial stage may a designated person seek judicial review of a sanctions-related decision; see Chapter 9 of this Guide. Thus, those who are subject to financial sanctions can challenge their listing, but financial sanctions will remain in place while the challenge or request is being considered.
A Comparative Perspective
Authors: Young Ernest A.
Published: March 2021

It is easy to be of two minds about Europe. From one perspective, the European Union (EU) enjoys an impressive array of legislative powers, and initiatives from the centre account for a large and apparently increasing proportion of legislation within each Member State. Past efforts to contain the growth of the EU’s authority—such as the principles of conferral and subsidiarity—have been disappointments. If the EU is in fact becoming a federal super-state, then two imperatives logically arise. Those who welcome this ‘ever closer union’ nonetheless worry that it is insufficiently democratic and transparent, and that it lacks a public that identifies as European to hold it to account. And those who do not wish to be part of a European federal super-state start looking for limiting principles—or, as in Britain, for the exits.
The Principle of Proportionality
Authors: Tridimas Takis
Published: March 2021

The principle of proportionality is the most oft-invoked and, in terms of its role in constitutional adjudication, the most influential principle of EU law. The principle was developed in continental legal systems, especially in Germany and France, in the twentieth century. Even at an early stage in the development of EEC law, proportionality had already been pronounced by the Court of Justice to be a fundamental principle deriving from the rule of law and requiring in particular that ‘the individual should not have his freedom of action limited beyond the degree necessary in the public interest’.
The Twin Doctrines of Primacy and Pre-Emption
Authors: Arena Amedeo
Published: March 2021

This is the tale of the twin doctrines of EU primacy and EU pre-emption. Like Herakles and Iphicles, they have had different fortunes: the former has been elevated to immortality by countless scholarly contributions and a myriad of pages of the European Court Reports, the latter—except for its external dimension—still lies in obscurity, largely neglected by legal literature and only as of late mentioned by a few Advocates-General.
The European Union and Fundamental Rights
Authors: Douglas-Scott Sionaidh
Published: March 2021

The twenty-first century European Union proclaims its respect for fundamental rights. Indeed, in an era of concern for human rights, it would seem strange if the European Union (EU) did not engage with them. Yet, the EU’s concern for fundamental rights has at least two very different historical sources. First, the Internal Market project has always lain at the heart of the Union and it requires the removal of national obstacles to integration—even possibly those predicated upon fundamental rights. Consequently, the EU’s own focus on fundamental rights constitutes a response to the thinly veiled threat of national courts invoking their own human rights standards to review EU law. On the other hand, the second source relates to the Union’s earliest days, as the Coal and Steel Community and later the European Economic Community (EEC), and as a clear response to the horrors of the early/mid-twentieth century. The objective from the outset was to stop yet another deadly, destructive war in Europe. As Klaus Günther has written, ‘We realise that the European history of human rights is written in blood. And it goes on …’. But perpetual peace in Europe did not merely entail economic integration as an end to conflict—it
The Union Budget And The Budgetary Procedure
Authors: Fasone Cristina , Lupo Nicola
Published: March 2021

The shape and content of the EU budget define what the EU wants to be, what it can actually do, its nature, and its aspirations. As often happens with the EU, much depends on the terms of comparison: the Union budget, which is slightly higher than 1 per cent of the EU Gross National Income (GNI), is much smaller than the budgets of most Member States but, at the same time, it is three times bigger than that of the United Nations. Its size and, even more so, the EU procedures which set its expenditures—apart from its revenues—reveal that the EU aims to be something different from a mere international organization.
Damages In EU Law
Authors: Biondi Andrea , Farley Martin
Published: March 2021

These are difficult times for the European legal order and its effective enforcement. Despite the positive impact of the Charter of Fundamental Rights, the perils to which the system of judicial protection is subjected is reflected by the debate on how violations of individual rights contained in European Union (EU) law can be adequately sanctioned. The heroic days of historical judgments are after all long gone and many criticisms have been levelled at whether the EU judiciary is still able to deliver an efficient and fair system of protection. It is equally true that supranational judicial protection may no longer be as necessary as it once was owing to the maturity of the EU legal system. The progressive internalization of both the substantive and remedial dimension of EU law has gradually shifted the attention and the question of intensity of protection from the Luxembourg Court—for many years the supreme guardian of EU individual rights—to national authorities and domestic courts.
The Decision-Making Process
Authors: Koutrakos Panos
Published: March 2021

A main feature of the European Union’s constitutional arrangements, as laid down in the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), is the organization of the rules governing external policies around the theme of integration. This is illustrated in different ways. First, the external policies of the Union are all part of what the Treaties describe as the Union’s ‘external action’. Terms such as ‘external policies’ or ‘actions’ are avoided. Instead, the choice of the reference to ‘external action’ signifies the design of the EU’s foreign affairs as a coherent whole.
EU Status In Other International Organizations
Authors: De Baere Geert
Published: March 2021

The present chapter considers the position of the European Union in other international organizations. It is based on the premise that the Union, while arguably also a federal or quasi-federal structure, is legally still itself an international organization. From the perspective of international law, that explains at least partly the complexities involved in an international organization such as the EU acquiring a status in—let alone membership of—another international organization. The term ‘status’ or ‘position’ is understood here as the influence the Union can exercise, either formally or informally, in decision-making processes in other international organizations. As an ever-increasing number of decisions having an impact on the Union’s policies originate in international organizations, its position in such fora matters.
Schemes of Arrangement: Law and Practice
Authors: O’Dea Geoff , Long Julian , Smyth Alexandra
Published: March 2021

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.
Choice of Law Rules
Authors: Fletcher Ian F
Published: March 2021

This chapter outlines the uniform rules of choice of law which are applicable to all proceedings governed by the original EC/EU Regulation on Insolvency Proceedings. It emphasizes Articles 4–15, which contain these rules. The uniform rules indicate, as between various Member States and also in relation to third states whose laws may potentially be applicable in a given situation, which state’s law shall govern. In most cases, the rules contemplate a choice only between the laws of different Member States. Article 4 expresses the basic principle of lex concursus which states that the law of the Member State in which proceedings are opened is to be applied, and shall determine their effects. The Article also states thirteen particular matters which these laws govern. The chapter concludes with a summary of particular changes once the RR comes into effect.
Financial Institutions
Authors: Haentjens Matthias
Published: March 2021

This chapter considers the Insurance Directive and the Solvency II Directive, directives that concern the reorganization and winding-up of insurance undertakings. It examines how European regulation has been adopted so that financial institutions can and must make use of a single authorization granted by the home Member State’s supervisory authority. Both of the Directives apply to insolvency proceedings concerning national and legal persons; however, four categories of financial institutions are excluded: the insurance undertakings; credit institutions; investment firms and other firms, institutions and undertakings to the extent that they are covered by Directive 2001/24/EC of the European Parliament and of the Council; and collective investment undertakings. The chapter also discusses the Settlement Finality and Collateral Directive and the Credit Institutions Directive, where settlement in effect represents the satisfaction or payment of a monetary obligation owed or owing by a counterparty to a financial institution.
Social value orientation modulates fairness processing during social decision-making: evidence from behavior and brain potentials
Authors: Hu Xinmu , Mai Xiaoqin
Published: March 2021

Social value orientation (SVO) characterizes stable individual differences by an inherent sense of fairness in outcome allocations. Using the event-related potential (ERP), this study investigated differences in fairness decision-making behavior and neural bases between individuals with prosocial and proself orientations using the Ultimatum Game (UG). Behavioral results indicated that prosocials were more prone to rejecting unfair offers with stronger negative emotional reactions compared with proselfs. ERP results revealed that prosocials showed a larger P2 when receiving fair offers than unfair ones in a very early processing stage, whereas such effect was absent in proselfs. In later processing stages, although both groups were sensitive to fairness as reflected by an enhanced medial frontal negativity (MFN) for unfair offers and a larger P3 for fair offers, prosocials exhibited a stronger fairness effect on these ERP components relative to proselfs. Furthermore, the fairness effect on the MFN mediated the SVO effect on rejecting unfair offers. Findings regarding emotional experiences, behavioral patterns and ERPs provide compelling evidence that SVO modulates fairness processing in social decision-making, whereas differences in neural responses to unfair vs fair offers as evidenced by the MFN appear to play important roles in the SVO effect on behavioral responses to unfairness.
Greatest changes in objective sleep architecture during COVID-19 lockdown in night owls with increased REM sleep
Authors: Pépin Jean-Louis , Bailly Sébastien , Mordret Ernest , Gaucher Jonathan , Tamisier Renaud , Ben Messaoud Raoua , Arnal Pierrick J , Mignot Emmanuel
Published: March 2021

Study Objectives

The COVID-19 pandemic has had dramatic effects on society and people’s daily habits. In this observational study, we recorded objective data on sleep macro- and microarchitecture repeatedly over several nights before and during the COVID-19 government-imposed lockdown. The main objective was to evaluate changes in patterns of sleep duration and architecture during home confinement using the pre-confinement period as a control.

Methods

Participants were regular users of a sleep-monitoring headband that records, stores, and automatically analyzes physiological data in real time, equivalent to polysomnography. We measured sleep onset duration, total sleep time, duration of sleep stages (N2, N3, and rapid eye movement [REM]), and sleep continuity. Via the user’s smartphone application, participants filled in questionnaires on how lockdown changed working hours, eating behavior, and daily life at home. They also filled in the Insomnia Severity Index, reduced Morningness–Eveningness Questionnaire, and Hospital Anxiety and Depression Scale questionnaires, allowing us to create selected subgroups.

Results

The 599 participants were mainly men (71%) of median age 47 (interquartile range: 36–59). Compared to before lockdown, during lockdown individuals slept more overall (mean +3·83 min; SD: ±1.3), had less deep sleep (N3), more light sleep (N2), and longer REM sleep (mean +3·74 min; SD: ±0.8). They exhibited less weekend-specific changes, suggesting less sleep restriction during the week. Changes were most pronounced in individuals reporting eveningness preferences, suggesting relative sleep deprivation in this population and exacerbated sensitivity to societal changes.

Conclusion

This unique dataset should help us understand the effects of lockdown on sleep architecture and on our health.
The effect of non-benzodiazepine sedative hypnotics on CPAP adherence in patients with OSA: a systematic review and meta-analysis
Authors: Wang Donghao , Tang Yongkang , Chen Yanghang , Zhang Sun , Ma Danjie , Luo Yateng , Li Shiwei , Su Xiaofen , Wang Xinni , Liu Chunli , Zhang Nuofu
Published: March 2021

Study Objectives

This meta-analysis aimed to explore the effect of non-benzodiazepine sedative hypnotics (NBSH) on continuous positive airway pressure (CPAP) adherence in patients with obstructive sleep apnea (OSA).

Methods

We conducted a systematic search through PubMed, Medline, the Cochrane Library, EMBASE, Scopus and ClinicalTrials (all searched from inception to August 15, 2020). Publications were limited to articles, clinical conferences and letters, including randomized controlled trials and retrospective studies. We used a random-effects model to calculate the odds ratio (OR) and mean difference (MD) with corresponding confidence interval (CI). Subgroup analyses were conducted to analyze the sources of heterogeneity.

Results

Eight studies fulfilled the inclusion and exclusion criteria for patients newly diagnosed with obstructive sleep apnea. Overall, the use of NBSH was associated with increased use of CPAP per night (MD = 0.62 h; 95% CI = 0.26–0.98) and use for more nights (MD = 12.08%; 95% CI = 5.27–18.88). When a study seriously affecting heterogeneity was removed, more patients adhered well with CPAP use (pooled OR = 2.48; 95% CI = 1.75–3.52) with good adherence defined as CPAP use for >4 h/night on >70% of nights. Among prescribed NBSHs, eszopiclone showed the most significant effect on CPAP adherence.

Conclusion

CPAP adherence may increase in OSA patients treated with non-benzodiazepine sedative hypnotics especially eszopiclone. The effect of zolpidem and zaleplon on CPAP adherence requires further investigation by larger scale, randomized, controlled trials.