bluuebunny/crossref_metadata_2025 huggingface dataset:
Does the Protection from Harassment Act 1997 Enable Compensation for Collateral Harassment?
Authors: Barrett Brenda
Published: March 2022

As is well known the Protection from Harassment Act 1997 (hereafter the ‘1997 Act’) was a response to physical stalking after it had been held in Khorasandjian v. Bush [1993] QB 727 that the tort of private nuisance could not provide compensation to a victim who had no interest in premises associated with harassment suffered by stalking. The case which will be discussed in this note shows the extent to which developments, both by amendment of the 1997 Act, and by interpretation in litigation have expanded the circumstances in which compensation may be obtained.
The Shaking-up of International Tax Rules?
Authors: Yeoh Peter
Published: March 2022

Tax planning for global businesses will now need to take into account multilateral guidance and proposed rules for the overhauling of international taxation around the world, and specifically the recent Base Erosion and Profit Shifting (BEPS) action plans launched by the Organisation for Economic Cooperation and Development (OECD). This article examines critically the rationale and justifications for BEPS and in particular the implications for US and UK businesses.
Tie-In Sales: Antitrust Doctrines and a Lack of Respect of Property Rights
Authors: Laskowska Magdalena
Published: March 2022

The purpose of this paper is to argue that any tying is not anticompetitive, and that abolishing the doctrine of anticompetitive tie-in sales is necessary on the exclusive basis of property rights protection: each firm has the exclusive right to dispose of the essence and accessories of its own product or service, and can, therefore, tie or bundle them in any configuration. The respect of this requirement is necessary to protect the property rights of the owner. A travel service contains bundles of trips, cars contain bundles of diverse features, electronic goods contain bundles of components, websites contain bundles of contributions, and this is perfectly legitimate, and must be protected for the sake of the protection of property rights.
The Regulatory Framework of Consumer Over-indebtedness in the UK, Germany, Italy, and Greece: Comparative Profiles of Responsible Credit and Personal Insolvency Law  Part I
Authors: Tsiafoutis Victoras , Ferretti Federico , Salomone Riccardo , Sutschet Holger
Published: March 2022

This is the first part of a two-part article which compares and analyses the regulatory framework addressing consumer overindebtedness in four EU Member States against the policy and law of the European Union. It aims to capture the preventive and the curative measures against overindebtedness in the selected Member States to assess the impact that EU policy and law is having on the internal market and effectively tackle a problem that affects millions of European consumers. Part I first provides the background of EU law and policies, then it investigates the legal framework in the UK and in Germany. In the forthcoming issue, Part II will explore Italy and Greece. It will conclude with a comparative analysis outlining shortcomings and best practices.
Absence Policies and the Duty to Make Reasonable Adjustments
Authors: McGrandle Jennifer
Published: March 2022

The Court of Appeal decision in Griffiths has provided some clarity with regard to the duty to make reasonable adjustments and, in particular, how employers should apply an absence policy to a disabled employee on long-term sick leave.
The Regulatory Framework of Consumer Over-indebtedness in the UK, Germany, Italy, and Greece: Comparative Profiles of Responsible Credit and Personal Insolvency Law  Part II
Authors: Tsiafoutis Victoras , Ferretti Federico , Salomone Riccardo , Sutschet Holger
Published: March 2022

This is the second part of a two-part article which compares and analyses the regulatory framework addressing consumer over-indebtedness in four European Union (EU) Member States against the policy and law of the EU. It aims to capture the preventive and the curative measures against over-indebtedness in the selected Member States to assess the impact that EU policy and law is having on the internal market and effectively tackle a problem that affects millions of European consumers. Part I, which was published in Issue 2, provided the background of EU law and policies, and then investigated the legal framework in the UK and in Germany. Part II explores Italy and Greece. The article concludes with a comparative analysis outlining shortcomings and best practices.
A Comparative Analysis of the Perception Differences between Competition Law and Anti-corruption Law
Authors: Gürkaynak Gönenç , Kama Ç. Olgu , Özkanli Ceren
Published: March 2022

Both anti-corruption law and anti-trust law aim to create a level playing field and they are complementary to each other in support of this aim. Given the indispensable nature of both fields in terms of reaching social welfare, it is striking how differently society reacts to the breaching behaviour of each field. On the one hand, if a company engages in corrupt behaviour, the perpetrator will be shunned from society, its behaviour generating strong moral reactions. Civil society organizations, both global and local, will publicize this corruption. The private and public sector, along with civil society organizations, will come together to find ways to eradicate it. The mood of such collaboration will dictate that the good are fighting the bad when fighting corruption.

On the other hand, the fight against anti-competitive behaviour may not always be as outrageous as fighting corruption. As for technocrats, when they encounter anti-competitive behaviour, they will fight such acts, enforce fines on the perpetrators and order them to stop violations. Corporations would attempt to do their best to be careful not to engage in anti-competitive behaviour the next time and the story would generally end there. Because preventing or stopping anti-competitive behaviour may not always demonstrate a direct, immediate and visible effect in the consumers’ eyes in most of the cases, the cries from society, if any, are not as loud as the cries against corruption.

Thus these two regulatory areas, convergent in their aims, are perceived in divergent fashions by society. This essay delves into the reasons behind such divergence and suggests that among the reasons for this differentiation are the premises that these fields also differ in their consequences, in their enforcement styles, leading to different moral perceptions, and in the visibility of their consequences.
Brexit: Is This the End for the General Data Protection Regulation?
Authors: Hendrie Melissa
Published: March 2022

The confirmed exit of the United Kingdom from the European Union (EU) coincides with significant reform of European data protection law. Such reform will arise through the European General Data Protection Regulation (GDPR) which is on course for direct enforcement in all EU Member States as of May 2018. Separation negotiations must be endured before finalization of an EU-UK divorce, the product of which will determine the role of GDPR in Britain’s future.
Why the US Justice Department Must Act Against Moodys Corporation
Authors: Cash Daniel
Published: March 2022

This short note discusses the importance of the decision facing the US Justice Department in the near future regarding whether or not to take action against Moody’s Corp. for its actions in the lead up to the Financial Crisis. Having already fined Standard & Poor’s a record USD 1.375 billion for defrauding investors, the Justice Department faces a much different proposition. This note establishes just some of the reasons why it is imperative that Moody’s is punished, even if ultimately the punishment is less noticeable than that given to Standard & Poor’s.
The Corporate Objective Revisited: Part I
Authors: Yan Min
Published: March 2022

The corporate objective, namely in whose interests should a company be run, is the most important theoretical and practical issue confronting us today, as the core objectives animate or should animate every decision a company makes. Despite decades of debate, there is no consensus regarding what the corporate objective is or ought to be. Contrary to the widely held belief that the corporate objective should be shareholder wealth maximization (SWM), this article seeks to demonstrate that SWM is unsuitable by exploring its main problems. As an antithesis to SWM, the stakeholder theory generally emerges and develops to be an alternative. Justifications will be offered from different aspects. In particular, its advantages in solving short-termism and externalization compared with SWM will be focused on.
Equipping the Use of Equipment in Nigeria: Has the Equipment Leasing Act 2015 Made the Difference?
Authors: Ifebunandu Joseph C.
Published: March 2022

Equipment leasing has become one of the most acceptable methods of acquiring the relevant asset base which businesses and individuals need to function competitively in Nigeria and is widely utilized as a financing method both in the formal and informal sectors of the economy. This has ensured that certain products and services, which were hitherto minimally available or unavailable, have now become steadily and easily accessible.

Today, the practice of leasing in Nigeria has materially evolved in terms of its practice, with increased participation, regulation and also challenges.

This work will show that the equipment leasing laws in Nigeria still remain inadequate to cater to the needs of the growing industry, despite recent strides in boosting regulation. It analyses the legal regime of equipment leasing in Nigeria, the impact of the legal regime on its practice and proposed adjustments in the laws that could enhance the general use and practice of equipment leasing.
Examining the SEBI (Alternative Investment Funds) Regulations 2012: A Capital Market Perspective of Hedge Fund Regulation in India
Authors: Mukhopadhyay Devarshi , Mohanty Rahul
Published: March 2022

As European, American and Asian investment banks continue to deal with the fallout of the worldwide credit and liquidity crunch, it is crucial to appreciate that a significant causal origin of the 2008 crisis was the management of the alternative financial sector and specifically, in the regulation of both domestic and offshore hedge funds. Although the industry has often been beneficial for the financial system, critics believe that these benefits have accrued at a cost. Significant ‘systemic’ risks that have plagued the domestic financial systems as a direct consequence of hedge funds operating both the credit and the market channel (largely on the basis of unlimited leverage), are domino leverage failure, asset price downward spirals and money laundering, among others. Naturally, the need to manage and regulate the industry, and more importantly, how to do so, has gained importance in industry dialogue. Through this paper, the authors seek to design an effective capital markets regulatory design for hedge funds.
WTO Framework on Regional Trade Agreements: A Legal Analysis
Authors: Qtaishat Ali Khaled
Published: March 2022

The global trading eco-system has seen a rapid proliferation of Regional Trade Agreements(RTAs) in recent years. With the ever increasing expansion of RTAs, countries are now witnessing an intensified competitiveness in world markets. While on the one hand, RTAs are seen as providing much better mechanisms for trading access in foreign countries with inbuilt flexibilities in rule formation and compliance, on the other, it is also said to be subverting the authority of the global trading body i.e. the World Trade Organization. The present article aims to analyse the critical legal bases of proliferating RTAs. To this end, it will offer an examination of the scope of RTAs and the key provisions under the WTO, which support the legal edifice of RTAs.
Motor Vehicle Insurance Law: Ignoring the Lessons from King Rex
Authors: Ferris Katy , Marson James
Published: March 2022

Following a review in 2013, the Motor Insurers’ Bureau (MIB) established the Uninsured Drivers Agreement (UDA) 2015. The aim was to implement aspects of the Motor Vehicle Insurance Directives (MVID). The UDA 2015 contained numerous errors in its drafting and led to widespread criticism due to its incompatibility with EU law and common law principles. In January 2017 the MIB provided its Supplementary UDA. If its aim was to remedy these problems we argue that it has substantially failed. Further, the updated Agreement continues the uncertainty of the law in this area and, with reference to Fuller’s ‘Eight Ways to Fail to Make Law’, we present an argument that the Secretary of State for Transport should again redraft the UDA 2015 and the 2017 Supplement to provide legal certainty, remove the inconsistencies between national and EU law, and provide the protection to which third-party victims of uninsured drivers are entitled under EU law.
Blockchain Technology: Usages and Legal Implications in India
Authors: Loya Akash Santosh
Published: March 2022

Blockchain technology is a distributed ledger technology which helps to store information in a decentralized way. It can be put to use for various purposes ranging from the handling and transaction of virtual currency to maintenance of land registries. The adoption of the technology in India will surely enhance the efficiency and effectiveness of the various sectors. However, certain legal ramifications may arise. The three prominent usages of Blockchain technology are: Bitcoins, Smart Contracts and the Land Registry System. The legal ramifications of all the three usages under various Indian laws have been examined. Further, adoption of Blockchain technology in the Land Registry System will require certain structural changes. Therefore, the said structural changes have been examined and certain suggestions have been made for successful adoption of Blockchain technology in the Land Registry System in India.
Basel IV: International Bank Capital Regulation Solution or the Beginnings of a Solution?
Authors: Yeoh Peter
Published: March 2022

SUMMARY

The BIS claims that the Basel III reforms otherwise known as Basel IV released in December 2017 completes the global reform of the regulatory framework as directed by the G20. This article traces the Basel I to IV journey and assesses its potential implications with focus on the fundamental issue of bank capital requirements.
Corporate Governance Codes in the UK: The Risk of Over-Reliance?
Authors: Yeoh Peter
Published: March 2022

This article looks at how modern corporate governance codes evolved in the UK to the present UK Corporate Governance Code 2018. Major issues and controversies surrounding the most recent reforms are discussed. Particular attention is given to their implications for corporate directors, and whether policymakers, regulators, and market participants are over-relying on them.
To File, or Not to File: That Is the Question. Directors Duties in the Company Crisis
Authors: Wabl Georg
Published: March 2022

SUMMARY

 

This article deals with directors’ duties in the company crisis (representing the period of vicinity of insolvency as well as material insolvency) and compares the UK and Austria as countries with mostly divergent approaches and different legal mentality. In the course of the analysis, the article shows that – especially in the light of the upcoming EU restructuring directive – the question should not be ‘what is the better approach’ but rather ‘how can existing approaches be made fit to reach desired results’ (mainly preserving value and at the same time protecting legitimate interests of creditors and other stakeholders). The hybrid approach proposed at the end of this article should help in pursuing such efforts.
Shell Corporations and Beneficial Owners. Current Criticalities and Future Developments from a Multilevel Perspective
Authors: Ottavi Andrea
Published: March 2022

SUMMARY

 

 

This article takes inspiration from the news leak known as the Panama Papers and focuses on the definition of the beneficial owner clause in both tax and anti-money laundering legislation. Specifically, it analyses the OECD Model Tax Convention, the European Directives and the European Court of Justice case law. This matter is closely linked to the use of offshore corporate vehicles for criminal purposes and the main purpose of the article is to concentrate on the existing gaps in these topics, and to propose effective solutions to combat abusive practices.
Quasi-Public Place-Governance: An Exploration of Shopping Centres
Authors: Dickinson Jill
Published: March 2022

SUMMARY

 

 

Shopping centres face multiple issues arising from their status as quasi-public Third Places. Such challenges are compounded by the enduring, difficult retail environment. Against this backdrop, the research explores how a legally pluralistic understanding of place-governance could inform future strategies for securing shopping centres’ roles within the community.

This UK-based, bistage, multi-case study draws on various data sources collected from seven shopping centres across Northern England. It adopts both thematic analysis and cross-case synthesis to generate rich findings.

The data analysis identified three key themes: the diverse shopping centre population, internally generated norms and externally developed law.

This article makes a bifold contribution to the literature. First, it commingles and develops theories of legal geography and legal pluralism to introduce a new tripartite lens for exploring place-governance, which comprises black-letter, policy and cultural elements. Secondly, it utilizes this model to generate empirically based findings about shopping centre place-governance from the insider perspectives of centre management, centre operatives and tenants.
The Dynamics of Evolution of the Corporate Governance of Chinese State-Controlled Listed Companies
Authors: Zhang Lin
Published: March 2022

The wave of reforming corporate governance has been increasingly, strong worldwide since the devastating 2008 financial, crisis. The existing theories by corporate lawyers have offered, two distinct paths for the reform. The convergence theory argues, that with the force of competition, commercial jurisdictions in the, globe will automatically converge towards a single optimal model, of corporate governance sooner or later that is featured with the, shareholder-oriented principle. On the contrary, the divergence, theory insists that the effect of path dependence, especially the, idiosyncratic political traditions or influences, is the key dynamic, force to push the evolution of corporate governance in a certain, commercial jurisdiction. With the proofs of Chinese state-controlled, listed companies (SCLCs), it is demonstrated that the, divergence theory is more convincing and pragmatic. One of the, most important implications of this understanding is that the, improvement of the corporate governance of the SCLCs relies on, the Chinese political reform to a large degree.

Convergence, Divergence, Dynamics, Corporate Governance, SCLCs.
The Case of Judicialization of Corporate Social Responsibility in China
Authors: Yan Min , Xu Xiaofeng
Published: March 2022

With the increasing popularity of contemporary corporate social, responsibility (CSR), this article takes a perspective of judicialization, of CSR, namely how the judicial means can be, employed for addressing CSR-related issues in contrast to the, conventional wisdom on enhanced disclosure and market force., In order to have a comprehensive picture, this article examines, Chinese judicial judgment practice in the context of the broad, interpretation of CSR, which includes economic and legal, responsibility, and case studies in the context of narrow interpretation, of CSR, which only includes responsibility over and, beyond economic and legal requirements. This article then, identifies the main challenges and problems of CSR in China, together with the unique situation in China. It concludes by, recommending more substantial and enforceable contents for the, CSR provisions in order to provide both courts and claimants, with more guidelines to exercise judicial means for addressing, core issues involved in CSR.

Judicialization, CSR, enforcement, corporate irresponsibility, China.
UCP 600 Thirteen Years On: Is the Compliance Standard Working?
Authors: Aladwan Zaid
Published: March 2022

On 1 July 2007, changes to the Uniform Customs and Practice for Documentary Credits (UCP) 600 came into effect which emphasized that documents need not be absolutely consistent or mirror images of each other (the ‘strict approach’), merely that they must not be inconsistent (the ‘substantial approach’). In this article, the author considers how both the strict and substantial approaches have worked in practice and suggests a new basis for the proper compliance standard.

Letters of Credit, UCP 600, Article 14, Article 15, Compliance Standard
Undue Interference of Governments and the Dysfunctional Legal Regime for Safeguarding Investors in China
Authors: Zhang Lin
Published: March 2022

The Chinese authorities always purport that they aim to purify the Chinese securities market and enhance the legal protection for investors, but the reality is bleak and disappointing. Confronted with the torrent of corporate scandals, legal scholars have already contributed abundant intellectual products on improving the investors’ protection in Chinese state-controlled listed companies. However, the majority of these contributions focus on the refinement of relevant legal institutions on safeguarding investors in Chinese law, or the transplantation of new ones from major commercial jurisdictions. Few of them pay attention to the link between undue government interference and the malfunction of existing investor-oriented mechanisms of the Chinese legal system. This article demonstrates that apart from legal defects, undue governmental interference which disrupts the functioning of investor-friendly legal institutions in place is another non-negligible factor, or even the most fundamental one in the context of China, to explain the porous investor protection in Chinese state-controlled listed companies. Therefore, in order to improve investor protection in Chinese statecontrolled listed companies, the political reform on the establishment of a public servant government, which has been underway in China must be continued.

Chinese securities market, legal protection for investors, state-owned enterprises (SOEs), corporate governance framework; China, Government, Interference, Law, Investors.
Intelligence: The Artificial Way
Authors: Flint David
Published: March 2022

With much of the world in lockdown, and politicians (and others) claiming that they must rely on the common sense (or intelligence) of the public to ensure that we emerge from the current restrictions with some economy remaining, I thought I would look this month at three patent law decisions – one from the UK Intellectual Property office, one from the European Patent Office and one from the United States Patent and Trademark Office (USPTO), all dealing with the same issue – an invention purportedly made by an Artificial Intelligence (AI) machine (DABUS) and all reaching broadly similar conclusions.
An Analysis of Board of Director Appraisal Disclosures in Australia and the United States
Authors: Ramsay Ian , Upadhyaya Mihika
Published: March 2022

Appraisals of boards of directors are now well established and viewed as important contributors to the effectiveness of boards. Because board appraisal practices vary between companies and the benefits of an appraisal will only be obtained where an appropriate practice is followed, there is significant interest in the board appraisal practices adopted by companies. The authors first outline the benefits and challenges of board appraisals and identify the key features of an effective board appraisal. They then present the results of their study of how board appraisals are conducted in Australia in relation to large and small listed companies and compare the findings with the board appraisal practices of US Fortune 100 companies.
Force Majeure and COVID-19
Authors: Meng Tim
Published: March 2022

Force majeure, Covid 19, pandemic, contract provisions, performance, direct causal link, China
OECD Anti-Bribery Convention. Implications on Corporate Criminal Liability in Latin America
Authors: Solange Screpante Mirna
Published: March 2022

This article analyses the impact on corporate legal liability legislation in Latin America as a result of the celebration of the OECD Anti-Bribery Convention in 1997, which established legally binding standards to criminalize bribery of foreign public officials in international business transactions. For that purpose, the legal background for liability of legal persons will be examined and the nature of corporate legal liability in each of the jurisdictions under analysis (Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Peru). It also explores whether there have been any sanctions imposed on legal persons and individuals as a consequence of the modifications introduced in the domestic legislations as a response to the recommendations made by the Convention.

OECD Anti-Bribery Convention, Corporate Criminal Liability, Latin America, bribery, sanctions
The Legal Measures for Promotion and Protection of Investments in Nigeria
Authors: Nwafor Ndubuisi , Nwafor Morning-Glory , Edeh Kingsley N. , Nwafor Kanayo P.
Published: March 2022

The promotion and protection of investors have over the years suffered policy and developmental drive. The Nigerian system is characterized by inconsistent policies of governments in investments growth. The country has a high desire for economic development. This article begins with an introduction, followed by the historical development of investors’ protection in Nigeria, the agencies created for investment protection, such as the Nigerian Investment and Promotion Commission (NIPC) and the Investment Promotion and Protection Agreement (IPPA), the factors that militate against investment growth in Nigeria, the legal methods by which investment disputes could be settled and concludes that if the recommendations given in this article are implemented, that Nigeria shall become one of the greatest economies in the World.

Investment protection, investment growth, Nigeria, foreign investment, litigation, arbitration
The Pro-Patent Holder Approach in Unwired V. Huawei in Interpreting the ‘Fair, Reasonable and Non- Discriminatory’ Rule for the Licensing of Standard Essential Patents
Authors: Kwan Martin
Published: March 2022

The English Supreme Court case of Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd demonstrated a pro-patent holder approach when interpreting the ‘fair, reasonable and non-discriminatory’ (‘FRAND’) rule/ undertaking. This article argues that this is a welcomed decision, because this approach pays due regard to commercial reality and the commercial needs of the patent holder. Understanding this approach is very important, because it helps in applying the rule. This approach also vitally provides more certainty by supplementing the existing, yet limited and vague, guidance on the interpretation of this rule. Furthermore, this comment rebuts the concern that the Court may have demoted the usefulness of the ‘non-discriminatory’ limb by allowing differential pricing. It is argued that this approach is both legally correct and makes practical sense. The impact of differential pricing to prospective licensees should not be over-exaggerated.

English Supreme Court case, Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd, patents
To Boldly Go: An Analysis of Luxembourg Space Resources Law in Light of the EU Treaty
Authors: Bergstresser John
Published: March 2022

In 2017, the Grand Duchy of Luxembourg passed a law permitting ownership over asteroids for the purposes of exploration and commercial exploitation. This Paper focuses on whether such a law is permissible under the Outer Space Treaty, European Union laws, and potential implications it has on the internal market.

Space resources, exploration, exploitation, commercial Space, international Law
Taking Directors Seriously: A Silver Bullet for Triggering the Creditors’ Interest Duty—Part II
Authors: Coumas Michael
Published: March 2022

Directors of solvent companies owe a fiduciary duty to shareholders qua the company. If a company becomes technically insolvent, the duty switches to the company’s creditors. This is uncontroversial. However, the duty is also said to switch some point before, i.e., in the ‘vicinity of insolvency’. Therefore, directors must be able to make decisions which do not prejudice shareholders, in a way that is free from exposure to claims by creditors. This uncertainty stems from the case law, where the rules of company law have been confused with the policies underlying insolvency law. The two bodies should be considered separately despite their interrelationship in practice. Doing so reveals the proper and fair function of the duty. Its application should be limited to cases of technical insolvency only. While special cases may be made for irresponsible or negligent risktaking by directors, this should be the exception – not the rule. This article is the second of two parts examining this issue, focussing on the current trigger for the duty and exploring possible solutions.

Company law, insolvency law, directors’ duties, fiduciary duties, agency costs
'The Denkavit-Vitic-Voormeer case
Authors: Schelpe Dirk
Published: March 2022

Judgment of the European Court of Justice of 17 October 1996 and its consequences for some anti-abuse provisions introduced in Member States' legislation implementing the Merger Directive (90/434/EEC) and Parent-Subsidiary Directive (90/435/EEC)
Taxation of non-profit organizations and EC law
Authors: Helios Marcus
Published: March 2022

As the growing number of cases before both the European Court of Justice and the European Commission shows, the question whether and to what extent the state aid rules and basic freedoms of services and capital and the freedom of establishment (Arts. 43, 49 and 56 of the EC Treaty) of the EC Treaty apply to non-profit organizations (NPOs) and charities has become increasingly topical. This article attempts to illustrate some central issues of the compatibility of tax incentives for NPOs with the EC Treaty.
Renneberg Endangers the Double Tax Convention System or Can a Second Round Bring Recovery?
Authors: Kemmeren Eric C.C.M.
Published: March 2022

In this article, the author critically discusses the recently decided Renneberg case. In substance, the Court ignored completely the DTC allocation rule, that allocated exclusively income, both positive and negative income, from an owner–occupied dwelling situated in Belgium of a resident in Belgium to Belgium.The author concludes that the Court wrongly treated the negative income from Renneberg’s dwelling situated in Belgium like a personal circumstance.Furthermore he argues that, erroneously, the Court hardly paid any attention to the arguments that this is a case of dislocation of the taxable base. Next to this, the Court misinterpreted the rule for elimination of double taxation. By allocating the negative income at issue to the Netherlands if a non–resident obtains all or almost all of his employment income in the Netherlands, the Court seriously undermines a balanced allocation of the power to impose taxes between the Member States. As result, the Netherlands and Member States in a similar position become a dumping place of losses. The Court’s observation that no possible justification had been put forward is amazing. The Netherlands Hoge Raad could consider clarifying its position to the Court in a second round before deciding the case itself. If no justifications are accepted by the Court, DTCs between Member States should be adjusted: they should include a claw–back mechanism in respect of non–residents if Community law obliges the state of source to take into account negative income from outside that state.
The Gibraltar Judgment and the Point on Selectivity in Fiscal Aids
Authors: Rossi-Maccanico Pierpaolo
Published: March 2022

A recent judgment of the Court of First Instance (CFI) provides the latest interpretation of the controversial notion of selectivity with respect to state–aid review of business tax measures pursuant to Article 87(1) of the European Community Treaty.

Taxation was not the initial focus of the state–aid restrictions, but the European judicature has made it clear in some early judgments that the restriction applies to all forms of public aid including all kinds of relief from taxation normally imposed and that the restriction does not distinguish between measures of state intervention in respect to their causes or their aims but solely to their effects. However, all tax systems provide exceptions and derogations, and the distinction between legitimate or normal tax differentiations and state aids depends on the interpretation of the national framework concerned with the tax rules under examination, which effectively leaves a broad margin of technical appreciation to the Commission and creates greater practical uncertainties for national authorities and taxpayers alike.

The most important statements or findings of the Court with reference to the two issues relating respectively to the notions of geographic and material selectivity are illustrated, followed by a comprehensive review of the controversial notions of selectivity general measure and justification by the nature and scheme of the tax system, under the case law of the Court and the Commission practice.
Recent Case Law of the ECJ in Direct Taxation: Trends, Tensions, and Contradictions
Authors: Lang Michael
Published: March 2022

Recent European Court of Justice (ECJ) case law has caused a lot of uncertainty with regard to direct taxation. It seems that the ECJ has thrown up more questions than it gave answers. Therefore, Michael Lang tries to explain recent trends, tensions, and contradictions in direct taxation resulting from that case law. He thereby focuses on the most recent cases, such as Belgium SPF Finance v. Truck Center SA (hereinafter ‘Truck Center’), Eckelkamp, Orange European Smallcap, and Krankenheim Ruhesitz am Wannsee-Seniorenheimstatt in order to analyze whether the concept of comparability has been developed further by the Court. Furthermore, Michael Lang tries to ascertain which and how many grounds of justifications need to be brought forward at the ECJ in order to successfully defend a tax measure. Finally, he takes a closer look at proportionality.
EC Law and Investment Funds: The Aberdeen Case
Authors: Calisto Pato António , Goes Seize Priscila
Published: March 2022

The present article addresses the issue of discriminatory taxation of investments through investment funds from a source country perspective. It focuses on the pending case of Aberdeen Property Fininvest Alpha Oy and analyzes the recently released opinion of Avocat Général Mzák. The authors defend a specific comparability criterion to be applicable when investment funds are involved, in order to establish whether or not there is a discrimination that hinders the European Community (EC) fundamental freedoms and, if so, which of them.
The Papillon Case: A First Step Toward a New Era in European Tax Treatment of Groups?
Authors: Rutschmann Yves , Durand Pierre-Henri
Published: March 2022

In a decision rendered on 27 November 2008 (C-418/07, Sté Papillon v. Ministère du Budget), the European Court of Justice ruled that the impossibility – resulting from the rules set forth in the French Tax Code – for a French parent company to include within a French tax consolidation group a French sub-subsidiary held through a subsidiary located in another Member State constitutes a restriction on the freedom of establishment. This decision raises several questions as to the application of domestic tax consolidation rules (as currently applicable in France and in other Member States) in cross-border situations and might be a first step toward a new era in European tax treatment of groups.
Are There Reasons to Convert Reverse Discrimination into a Prohibited Measure?
Authors: Garcia Daniela
Published: March 2022

This article analyses whether reverse discrimination should continue to be allowed under European Law as it currently is or whether there are legal and jurisprudential reasons to reconsider the existence of reverse discrimination inside the Community. The analysis is based mainly in (1) European Court of Justice (ECJ) case law; (2) Citizenship of the Union as established in Articles 17 and 18 of the EC Treaty; and (3) the principle of equality stated in the Human Rights. An interpretation on the provisions of illegal state aid and the approach taken by the Court when analysing cases of indirect discrimination are also made in order to argue the incompatibility of reverse discrimination with the full neutrality that should exist in the European Community.
The Contemporary Meaning of ‘Sovereignty’ in the Supranational Context of the EC as Applied to the Income Tax Case Law of the ECJ
Authors: Isenbaert Mathieu
Published: March 2022

In the more than twenty years that the European Court of Justice (ECJ) has been deciding income tax cases, it has become clear that Community law has had a progressively increasing impact on the direct tax systems of the Member States. On the occasion of several seminal judgments, many legal scholars have raised concerns whether the ECJ was heeding a sufficient amount of respect for the ‘income tax sovereignty’ of the Member States. Especially on the occasion of the Bosal decision of 2003, many tax scholars thought and wrote that the ECJ had started interpreting the internal market freedoms too broadly and that the Court did not give sufficient consideration to the particularities of direct taxation. In light thereof, the present article will address the following three questions:

(1) What significance, if any, does the concept of ‘sovereignty’ have in the contemporary supranational environment of the European Union/European Community?

(2) Within such contemporary meaning, can the quality of ‘sovereignty’ with regard to direct taxation be considered to have remained with the Member States, has it been acquired by the European Union/European Community or has it been shared by the Member States and the Union/Community level?

(3) What are the normative implications of the answer to the previous question and have these normative implications been respected by the states and supra-state actors?

All too often, tax scholars equate ‘sovereignty’ with the concepts of ‘competence’ or of ‘jurisdiction’. With regard to acquiring a thorough understanding of the ‘sovereignty’ concept, however, it is necessary to abolish a tax legal perspective altogether and venture into the field of political sciences. An analysis of the non-legal background of the concept ‘sovereignty’ will show that it is defendable to confer an epistemic and normative significance to the ‘sovereignty’ concept that goes beyond the strictly legal concepts of ‘competence’ or ‘jurisdiction’.
EU VAT Grouping from a Comparative Tax Law Perspective
Authors: Vyncke Dr Kenneth
Published: March 2022

On 2 July 2009, the European Commission adopted a communication calling for a harmonized application of the value-added tax (VAT) grouping rules within the EU. Depending on the reactions of the Council and the European Parliament, the Commission will most probably take further action. In anticipation of the discussions at EU level, this article systematically outlines the (im)possible features of group registration from a comparative tax law perspective, especially taking into account the VAT Directive and the VAT neutrality principle, as well as the sixteen national VAT grouping arrangements in force. At the same time, it provides the Member States with VAT grouping guidelines, allowing them to design, evaluate, and adapt their national arrangement in line with the current Community legal framework.
Freedom of Establishment or Free Movement of Capital: Is There an Order of Priority? Conflicting Visions of National Courts and the ECJ
Authors: Mostafavi Siamak , Rompen Joost , Smet Patrick , De Waele Isabelle , Adfeldt Steffan , Breuninger Gottfried , Ernst Markus , Carpentier Viviane , Hemels Sigrid J.C.
Published: March 2022

Where a parent company owns a controlling interest in a subsidiary resident in another Member State the question arises whether Article 43 EC Treaty (the freedom of establishment), Article 56 EC Treaty (the free movement of capital), or both articles may be relied upon by the taxpayer to challenge domestic law for breach of the EC Treaty. That is, is there a mandatory order of priority between these freedoms in such cases? This question has wide relevance since the freedom of establishment cannot be relied upon in third-country situations whereas the free movement of capital can. The European Court of Justice (ECJ) and several national courts have ruled on this question. However, the ECJ case law does not give clear guidance and national courts have come to opposite conclusions. This article gives an overview of the ECJ case law against the background of which the decisions of the national courts are analysed. We come to the conclusion that the question of which freedom takes priority is not an acte clair/acte éclairé. Given the current status of the question of the dominance of the freedoms, with opposite conclusions from national courts and the ECJ having adopted inconsistent approaches in its decisions, national courts should, in our view, no longer decide such questions without seeking a preliminary ruling from the ECJ. We urge the ECJ to deliver clear and consistent rules regarding this question.
Possibilities and Impossibilities for Challenging Final Tax Assessments and Decisions in Tax Cases that Contravene EC Law
Authors: van Eijsden Arjo
Published: March 2022

When tax authorities infringe the European rights of a taxpayer, there is usually the possibility to challenge such infringement by filing an objection or appeal. However, in doing so, the taxpayer typically has to comply with domestic time limitations. Failure to do so will result in the respective decision of the tax authorities becoming final. A decision can also become final if the taxpayer did use the possibility to file an objection and appeal but his case was declined by the national highest court. As a rule, final decisions can no longer be disputed before a national court. It is, however, not uncommon that after a decision has become final, the Court of Justice (CJ) issues a ruling in a particular case, based on which the mentioned final decision turns out to be in conflict with European law. In this respect, the question arises which possibilities does EC law offer to a taxpayer to dispute a final decision of the tax authorities or a national court. In this article, the authors will analyse this question in detail and will describe the options taxpayers have in this regard. This analysis includes the validity of national time limits, obligations for administrative bodies to revisit a final decision, the impact of procedural legal effect of a decision, and the influence of the res judicata principle
Deductibility of Health Insurance and Social Security Contributions
Authors: Wiemann Joachim
Published: March 2022

The article analyses two recent European Court of Justice (ECJ) decisions (C-544/07, Rüffler, and C-314/08, Filipiak) addressing the question of whether a Member State can limit the deductibility of social security or health insurance contributions under income tax law to those paid to a domestic institution. In the first case, the ECJ found a violation of the right to free movement; in the second case, a violation of the freedom of establishment and the freedom to provide services.

The article follows the structure of the ECJ's decisions, providing critical analysis of all steps of the ECJ's reasoning and relating the decisions to established principles of European law on direct taxation. Although agreeing with the outcome of the decisions, the article highlights important issues with regard to EU law requirements on Member State direct taxation regimes that the decisions do not address or do address but not in an entirely convincing way. Focal points of the analysis include the criteria of identity or comparability of the health care and social security systems and contributions, the different possibilities of the allocation of personal deductions to various Member States, and the limitations as to the deductible rate or the deductible amount under EU law (partial deductibility).
Must the Losses of a Merging Company be Deductible in the State of Residence of the Receiving Company in EU?
Authors: Helminen Marjaana
Published: March 2022

The EU Merger Directive is silent on the question of the extent in which the state of residence of the receiving company must allow a deduction of the losses of a merging company in an intra-EU cross-border merger. The extent to which the losses are decutible depends on the domestic tax laws and the freedom of establishment principle of the Treaty on the Functioning of the European Union (TFEU). The Supreme Administrative Court of Finland considers it to be unclear whether the freedom of establishment principle of the TFEU requires Finland to allow a Finnish receiving company to deduct the losses of a Swedish merging company after a merger in which there will be no permanent establishment left in Sweden. As a consequence, the Court decided to refer a case concerning this issue to the European Court of Justice (ECJ). The Court considers that it is also unclear as to whether the deductible amount of the Swedish loss should be determined in accordance with the Swedish laws or the Finnish laws, if the ECJ considers that it has to be deductible. In this article, the author discusses the case referred to the ECJ from the perspective of the freedom of establishment principle and concludes that in the case concerned, a deduction should be allowed.
Energy Taxation at European Level: What does it do for the Environment and Sustainability?
Authors: van Eijndthoven Jolanda
Published: March 2022

After an overview on the history of attempts to introduce an energy tax at European level, this article discusses how successful the current Energy Tax Directive is in respect of its environmental and sustainability objectives. Although the primary focus has been the proper functioning of the internal market, a reference to the EC Treaty requires it to integrate environmental protection requirements with a view to promote sustainable development. This article focuses primarily on the shortcomings of the Directive by discussing the tax treatment of the energy-intensive and cement industries and the transport and agricultural sectors, respectively, as well as the use of gas oil and heat and the derogations present in it.

This article then turns to the new and long-awaited proposal from the Commission, adopted on 13 April 2011, and analyses to what extent the proposal remedies these 'shortcomings', and it discusses some of the new features that are supposed to bring the Directive more in line with the European Union (EU)'s energy and climate change objectives.