bluuebunny/crossref_metadata_2025 huggingface dataset:
Article 58 Powers
Authors: Georgieva Ludmila , Schmidl Matthias
Published: March 2021

Article 4(21) (Definition of a supervisory authority); Article 36 (Advisory and other powers concerning prior consultation, national legislative measures and mandatory prior consultation or authorisation) (see too recital 94); Article 50 (Supervisory authorities to take steps to provide international mutual assistance in enforcement, including through investigative assistance) (see too recital 116); Article 52 (Exercise of powers with complete independence) (see too recital 117); Article 55 (Competence with regard to the exercise of powers, competence over public bodies) (see too recitals 122, 128 and 131); Article 57 (Tasks of supervisory authorities) (see too recitals 122, 123, 132 and 133); Articles 60(2) and 61 (Mutual assistance) (see too recital 133); Article 62 (Joint operations of supervisory authorities, including joint investigations and conferring of powers) (see too recitals 130 and 134); Article 90 (Possibility for Member States to adopt specific rules to set out supervisory authorities’ powers) (see too recital 164).
Article 64 Opinion of the Board
Authors: Van Eecke Patrick , Šimkus Anrijs
Published: March 2021

Article 61 (Mutual assistance) (see too recitals 123 and 133); Article 62 (Joint operations of supervisory authorities) (see too recital 134); Article 63 (Aim of consistency mechanism); Article 65 (Procedure for the consistency mechanism where Article 64 is not complied with); Article 67 (Information exchange arrangements for the standardised format under Article 64(4)); Article 70(1) (Tasks of the Board) (see too recitals 136 and 139).
Article 80 Representation of data subjects
Authors: Fuster Gloria González
Published: March 2021

Article 57(1)(f) (Tasks of supervisory authorities); Article 77 (Right to lodge a complaint with a supervisory authority); Article 78 (Right to an effective judicial remedy against a supervisory authority); Article 79 (Right to an effective judicial remedy against a controller or processor); Article 82 (Right to compensation and liability).
Article 88 Processing in the context of employment
Authors: Van Eecke Patrick , Šimkus Anrijs
Published: March 2021

Article 4 (Definition of consent) (see too recital 42); Article 7 (Conditions for consent) (see too recital 43); Article 9 (Processing of special categories of personal data in the context of employment) (see too recital 52); Article 83 (Fines for breaches of any obligations pursuant to Member State law adopted under Article 88) (see too recital 148).
Article 97 Commission reports
Authors: Zerdick Thomas
Published: March 2021

By 25 May 2020 and every four years thereafter, the Commission shall submit a report on the evaluation and review of this Regulation to the European Parliament and to the Council. The reports shall be made public.
Article 99 Entry into force and application
Authors: Moore Dominique
Published: March 2021

The GDPR was published in the EU Official Journal on 4 May 2016. The two-year period from the entry into force of the GDPR on 24 May 2016 (as provided by Article 99(1)) until its application starting on 25 May 2018 (as provided by Article 99(2)), and the concomitant repeal of the DPD under Article 94, was intended to allow sufficient time for all concerned to prepare sufficiently for the important changes to be brought about by the new legal regime of the GDPR. This two-year period is longer than the norm for EU legislation.
Report on The Field Research at Eurojust, February 2015
Authors: Marletta Angelo
Published: March 2021

Eurojust contributed to the three-​year project entitled ‘Prevention and Settlement of Conflicts of Exercise of Jurisdiction in Criminal Law’, led by the University of Luxembourg. In this context, Dr Angelo Marletta also interviewed representatives from the Eurojust National Desks and the Secretary to the European Judicial Network, all of whom volunteered. These interviews took place in February 2015. The report is a summary of the field research, which is based on the interview transcripts. The transcripts should be considered raw material, neither verified nor edited, and not reflecting a Eurojust position. Also to be noted is that the Eurojust document, ‘Guidelines for deciding “Which jurisdiction should prosecute?” ’, which was revised by Eurojust in 2016, after the interviews took place, is not reflected in the report.
Fundamental Rights Protection between Strasbourg and Luxembourg
Authors: Ligeti Katalin
Published: March 2021

Since long before the entry into force of the Charter of Fundamental Rights of the European Union (CFREU), the two highest courts in Europe, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have sought to develop their respective jurisprudence in such a way as to ensure a strong protection of individual rights, whilst avoiding clashes between the decisions taken in Luxembourg and Strasbourg. An important statement in this regard is provided by the Bosphorus judgment, in which the Grand Chamber of the ECtHR recognised the existence of a presumption of equivalent protection of fundamental rights under EU law. The presumption is rebuttable, but expresses the trustful attitude (and a certain degree of deference) of Strasbourg towards the ability of EU law (and of the CJEU) to protect Convention rights.
Mutual recognition, choice of forum, and lis pendens A Civil Law Threesome Transposed
Authors: van Hoek Aukje
Published: March 2021

The draft proposals make a bold attempt to address a pressing and controversial issue in international criminal law. The recognition of multiple grounds of jurisdiction—​and the recent expansion thereof with regard to specific crimes—​creates a situation in which more than one country can legitimately claim jurisdiction over a specific crime or set of acts. Unlike the situation in civil procedure, there is currently no European system to coordinate criminal jurisdiction within the area of freedom of justice, and hence the international grounds of jurisdiction are also applied in full to intra-​EU cases. This creates ample possibilities for a positive conflict of jurisdiction in which more than one state may start investigations, prosecution, and/​or criminal adjudication with regard to a similar or identical set of criminal facts. As the Working Group rightly stresses, this may lead to ‘efforts and resources being wasted and potentially to arbitrary outcomes’.
EU Administrative Law
Authors: Craig Paul
Published: March 2021

The third edition of EU Administrative Law provides comprehensive coverage of the administrative system in the EU and the principles of judicial review that apply in this area. This revised edition provides important updates on each area covered, including new case law; institutional developments; and EU legislation. These changes are located within the framework of broader developments in the EU. The chapters in the first half of the book deal with all the principal variants of the EU administrative regime. Thus there are chapters dealing with the history and taxonomy of the EU administrative regime; direct administration; shared administration; comitology; agencies; social partners; and the open method of coordination. The coverage throughout focuses on the legal regime that governs the particular form of administration and broader issues of accountability, drawing on literature from political science as well as law. The focus in the second part of the book shifts to judicial review. There are detailed chapters covering all principles of judicial review and the discussion of the law throughout is analytical and contextual. It begins with the principles that have informed the development of EU judicial review. This is followed by a chapter dealing with the judicial system and the way in which reform could impact on the subject matter of the book. There are then chapters dealing with competence; access; transparency; process; law, fact and discretion; rights; equality; legitimate expectations; two chapters on proportionality; the precautionary principle; two chapters on remedies; and the Ombudsman.
Shared Management
Authors: Craig Paul
Published: March 2021

Shared management has been central to the implementation of EU policy. This includes areas where the EU expends funds, such as the Common Agricultural Policy (CAP) and the Structural Funds, and areas where the EU intervenes through regulatory policy such as utilities, financial services, and consumer protection. The Financial Regulation contains provisions dealing with shared management, as well as centralized management. There are, nonetheless, many issues posed by shared management that are not touched by the 2002 reforms. It would clearly be impossible in the course of this chapter to deal with all the main areas where shared administration applies. That would require a book in itself.
Process
Authors: Craig Paul
Published: March 2021

This chapter is concerned with process rights, and should be read in conjunction with the previous chapter on access. The sources of process rights are, as will become clear from the subsequent discussion, eclectic. Treaty articles, EU legislation, the Union Courts, the European Ombudsman, and the Commission have all contributed towards the enumeration of such process rights, drawing inspiration from national legal systems. The discussion that follows takes a broad view of process and addresses the topic from three perspectives.
Precautionary Principle
Authors: Craig Paul
Published: March 2021

Many of the principles of administrative law discussed previously will be familiar to scholars from their domestic jurisprudence. The precautionary principle differs in this respect. While it is found in some legal systems, such as Germany, it is nonetheless relatively novel as a precept of administrative law. It has, however, become of increased importance in EU law.
Sham Trusts and Reserved Powers
Authors: Kosky Jeremy , Mossman Maxine , Buncher Nicole
Published: March 2021

The concept of sham came to prominence in England in the late 1960s in a contractual context. The classic articulation is said to be in Snook v London and West Riding Investments Limited, a case about a hire-purchase agreement: … it means acts done or documents executed by the parties to the ‘sham’, which are intended by them to give to third parties or to the Court, the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create.
Setting Aside Trusts, Undue Influence and Capacity
Authors: Exton Emily , Harvey Roberta
Published: March 2021

Under English law the validity of a trust depends on three essential conditions being met.
Appeals
Authors: Angus Tracey
Published: March 2021

Appeals may arise in trust litigation in a number of different contexts. The most obvious is where a final decision has been made by the court which one party considers is wrong. However, there may be decisions made during the course of the litigation with regard to case management, injunctions, or other interim orders, with which one of the parties is aggrieved and they too can often be appealed.
Isle Of Man
Authors: Rimmer John
Published: March 2021

The Isle of Man is a British Crown Dependency but does not form (and has never formed) part of the territory of the United Kingdom or its constituent members. Neither is the Isle of Man a part of the European Union. It is in a common customs and immigration area with the United Kingdom, which can lead to the local application of relevant legislation.
Switzerland
Authors: Wüstemann Tina , Frigg Marco
Published: March 2021

Swiss law does not recognize the concept of trusts (although it does recognize trusts created under foreign law). Hence a trust cannot be governed by Swiss law. Yet, Switzerland is seen by many foreigners as an attractive place to live and trusts are often imported by settlors relocating to Switzerland. Switzerland’s popularity as a hub for trust administration and related services has risen during the last years and so has the number of litigation matters involving trust structures. Trustees have become increasingly involved in Swiss proceedings and are frequently parties to complex cross-border disputes; the trustees become a target for aggrieved beneficiaries and family members or ex-spouses.
Class Meetings and Class Consents
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

It is legitimate for the issued share capital of a company to be divided into shares of different classes, for example, the share capital may include deferred shares, preference shares or redeemable shares as well as ordinary shares. The reasons for such a subdivision of a company’s share capital may be many and arise in a variety of different situations. Where the issued share capital of a company is so divided it may be necessary from time to time to convene separate class meetings when such a course is required by statute or under the terms of a company’s articles of association. Provided that there is due and proper compliance with the legislation and with any applicable provisions in a company’s articles or shareholders’ agreement it is possible for members of a company to vary the rights that may be attached to a particular class of shares. This power must not be abused and the court has specific jurisdiction under CA 2006, s 633 to protect a minority of the members of a class of shares provided that they constitute not less than 15% of the issued shares of the class. Such persons may apply to the court to have
Annotation of 1985 Table A Regulations Relating to Meetings and Decisions of Members and Proceedings and Decisions of Directors
Authors: Kosmin Leslie , Roberts Catherine
Published: March 2021

In addition to the statutory provisions regulating the proceedings of meetings of members and of directors, a company’s articles of association will contain rules and regulations governing these types of meeting. Plainly, where the legislation prescribes minimum requirements a company is not entitled to have provisions in its articles of association that depart or derogate from these basic rules. For a long time as an adjunct to the statutory provisions relating to meetings there have been articles of association in what may be called a ‘standard form’. Companies may choose to adopt these standard form provisions in their entirety, or with certain amendments, modifications and exclusions. In this part of the book the familiar provisions relating to meetings and decisions of members and of directors that are contained in the Companies (Tables A to F) Regulations 1985 (SI 1985/805) (1985 Table A) are considered and analysed. Many companies on the register of companies retain as their articles the 1985 Table A with various additions, modifications or exclusions.
Benin
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

The Republic of Benin in West Africa is bordered by Togo, Nigeria, Burkina Faso, and Niger. It has an area of 114,763 square kilometres (km) and has a population of 11.4 million. Its capital is Porto-Novo, although the seat of the government and the largest city in Benin is Cotonou. Cotonou is also home to the autonomous port of Cotonou and to the international airport Cardinal Bernardin Gantin de Cadjéhoun, the primary entry point to the country by air. The government of Benin has agreed to the construction of a petroleum, ore, and commercial port in Sèmè-Podji, which should complement the port of Cotonou. In 2020, the current international airport Cardinal Bernardin Gantin de Cadjéhoun will be replaced by the international airport of Glo-Djigbé, found 20 km from Cotonou.
Cape Verde
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Cape Verde (officially known as the Republic of Cabo Verde) is a group of sub-tropical and volcanic islands in the north Atlantic Ocean off the west coast of Africa, approximately 664 kilometres (km) from Dakar, Senegal. The islands were first colonized by the Portuguese in 1462 and were an important part of the transatlantic slave route, where slaves were brought to the islands from West Africa, until the abolishment of the slave trade in 1876. Until 1879, Cape Verde was part of Portuguese Guinea (now Guinea-Bissau) and was incorporated as an overseas department of Portugal in 1951. The islands continued to campaign for independence which was peacefully achieved in 1975. Since the early 1990s, Cape Verde has been a stable representative democracy and remains one of the most developed and democratic countries in Africa.
Djibouti
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

One of the smallest countries in Africa with a total area of 23,200 square kilometres (km) and a population of 956,000 in 2017, Djibouti is located in the Horn of Africa. It borders Eritrea, Ethiopia, Somalia, the Red Sea, and the Gulf of Aden. This strategic location makes it a bridge between the Middle East and Africa. Its capital and largest city is Djibouti city. It is the cultural and economic heart of the country. Around two-thirds of the population live in Djibouti city.
Sierra Leone
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Sierra Leone is located on the west coast of Africa, with an area of 71,740 square kilometres (km), bordered by Guinea, Liberia, and a coast line on the Atlantic Ocean of 402 km. The capital of Sierra Leone is the coastal city of Freetown and commands one of the world’s largest natural harbours. It has a population of 7.557 million (2017). The Western Area Urban District, which includes the capital city of Freetown, has a population density of 1,224 people per square kilometre. Formerly a British colony, Sierra Leone became an independent state within the Commonwealth of Nations in 1961 and attained republican status on 19 April 1971. The Sierra Leone civil war took place from 1991 until 2002, a war which had a devastating effect on the country and its economy. Since 2002. Sierra Leone has been in the process of rebuilding and regeneration following the civil war. Official business hours are from Monday to Friday from 0800 to 1700. The currency of Sierra Leone is the Leone (Le).
South Africa
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

The Republic of South Africa, known as South Africa, occupies the most southern tip of Africa with a coastline stretching from the border of Namibia on the Atlantic Ocean (south-west coast) of Africa, down to the tip of Africa and then north along the south-east coast to the border of Mozambique on the Indian Ocean. South Africa is bordered by Namibia, Botswana, Zimbabwe, Eswatini (formerly Swaziland), and Mozambique and surrounds the small landlocked Kingdom of Lesotho in the east-central region of South Africa. The total area of South Africa is approximately 1.22 million square kilometres (km), with a population of an estimated 58.78 million (2019). The country is divided into nine provinces, Western Cape, Eastern Cape, Northern Cape, Free State, Kwa-Zulu Natal, Northwest, Gauteng, Mpumalanga, and Limpopo. Gauteng Province is the most densely populated province with approximately 809.6 people per square kilometre, Kwa-Zulu Natal being the second most densely populated at 120.7 people per square kilometre, with Western and Eastern Cape following substantially behind at 59.1 and 51.1 people per kilometres respectively. There are three capitals in South Africa: Pretoria in the Gauteng province (administrative), Cape Town in the Western Cape (Legislative), and Bloemfontein in the Free State (Judicial). The
Tunisia
Authors: Schneider Marius , Ferguson Vanessa
Published: March 2021

Found in North Africa, Tunisia borders Algeria, Libya, and the Mediterranean Sea. It is the northernmost country of Africa. The country is divided by the Atlas Mountain range: the northern area is predominantly forest and agricultural land while the southern part is semi-arid desert (Sahara Desert). In 2017, its population numbered 11.5 million people in an area of 165,000 square kilometres (km). The capital, Tunis, is the largest city of Tunisia and the centre of the political, administrative, commercial, and cultural life of the country.
Online Courts and the Future of Justice
Authors: Susskind Richard
Published: March 2021

In Online Courts and the Future of Justice, Richard Susskind, the world’s most cited author on the future of legal services, shows how litigation will be transformed by technology and proposes a solution to the global access-to-justice problem. In most advanced legal systems, the resolution of civil disputes takes too long, costs too much, and the process is not just antiquated; it is unintelligible to ordinary mortals. The courts of some jurisdictions are labouring under staggering backlogs - 100 million cases in Brazil, 30 million in India. More people in the world now have internet access than access to justice. Drawing on almost 40 years in the fields of legal technology and jurisprudence, Susskind shows how we can use the remarkable reach of the internet (more than half of humanity is now online) to help people understand and enforce their legal rights. Online courts provide 'online judging' - the determination of cases by human judges but not in physical courtrooms. Instead, evidence and arguments are submitted through online platforms through which judges also deliver their decisions. Online courts also use technology to enable courts to deliver more than judicial decisions. These 'extended courts' provide tools to help users understand relevant law and available options, and to formulate arguments and assemble evidence. They offer non-judicial settlements such as negotiation and early neutral evaluation, not as an alternative to the public court system but as part of it. A pioneer of online courts, Susskind maintains that they will displace much conventional litigation. He rigorously assesses the benefits and drawbacks, and looks ahead, predicting how AI, machine learning, and virtual reality will likely come to dominate court service.
Physical, Virtual, Online
Authors: Susskind Richard
Published: March 2021

Modern court systems can be traced directly to bodies that came into being around 900 years ago. There were of course much earlier courts (for example, the rabbinical courts known as ‘Sanhedrin’, in the first century BC) and certainly there were people in antiquity performing decision-making roles that we would recognize today as judicial in nature (in the works of Aristotle, for instance, and the magistrates and jurists of classical Roman Law). But today’s judges in England and Wales descend more directly from their predecessors of the twelfth century who, in the first instance, were court officials charged with the responsibility of advising the King on the resolution of disputes. Henry II (1154– 89) formalized proceedings and laid the foundations for the modern justice system by establishing an assembly of twelve local knights to settle disagreements over the ownership of land.
The Vision
Authors: Susskind Richard
Published: March 2021

‘Vision without execution is hallucination.’ It is not entirely clear who first said this, but it is an aphorism that is usually attributed to Thomas Edison, of lightbulb fame. And it is an invaluable insight. We can talk endlessly about a newly imagined world but unless we know how we can get there, it is daydreaming. Accordingly, in this part of the book, after setting out my vision for online courts, I go on to propose an architecture for these systems. My hope is that this provides practical guidance to those who want to implement operational systems. The vision that I share in this chapter was developed in collaboration with others in 2014 and 2015. I tell the story here of its evolution and then build on this early thinking. Underlying the vision is a basic question. Is court a service or a place? When people and organizations are in dispute and call upon the state to settle their differences, must they congregate in physical courtrooms? The vision introduced here suggests not.
Law and Code
Authors: Susskind Richard
Published: March 2021

Online courts raise a whole host of thorny problems. In this chapter, I explore one of the trickiest, which is partly legal and partly technical. My aim is to contribute to an ongoing discussion about the nature of the rules that should underlie online courts and especially those that, for the convenience of users, are embedded within the systems. At the heart of this issue is the relationship between ‘law’ and what is often referred to as ‘code’ (very broadly speaking, software). The distinctions peppered across this chapter may seem arcane at first sight. But the issues involved are complex and require careful analysis. They should trouble not only policy-makers and legal theorists but all who are concerned about the integrity and provenance of online courts.
A Jurisprudential Miscellany
Authors: Susskind Richard
Published: March 2021

Online courts give rise to a daunting array of jurisprudential con¬cerns. By ‘jurisprudential’, I mean theoretical and philosophical questions that arise in relation to the law. In this chapter, I pick off a few issues that I regard as especially pressing. These relate to the separation of powers and the independence of the judiciary, the difference between adversarial and inquisitorial approaches to dispute resolution, litigants without representation, and the sustainability of the common law system. These are all supertanker topics in their own right that I cannot resolve here in full. But I offer initial answers that I hope will be useful. I conclude by identifying a new job for jurisprudence.
Magistrates and their Courts
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

The office of justice of the peace, or magistrate, is an ancient one first mentioned in 1264. As early as 1361 the Justices of the Peace Act provided for the appointment in each county of ‘one lord and three or four of the most worthy in the county with some learned in the law’ whose duty it would be to ‘pursue, arrest … and chastise’ offenders and rioters, and take surety of good behaviour ‘towards the King and his people’ from those who were not ‘of good fame’. The magistrates retain their original function of assisting in the keeping of the peace, and, to further that end, can still bind a person over to keep the peace or be of good behaviour even though no offence has been proved against him.
Mode of Trial
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

An offence is either summary or indictable (see 1.07 to 1.09). An indictable offence is one for which an adult either must or may be tried on indictment; a summary offence is one which must be tried summarily: Interpretation Act 1978, Sch 1. As the definition of indictable offence implies, some are only triable on indictment and some may be tried either on indictment or summarily. The latter are known as offences triable either way.
Appeals from the Magistrates’ Courts
Authors: Sprack John , Engelhardt–Sprack Michael
Published: March 2021

Appeal to the Crown Court is only by a person convicted. The other two procedures are available to any person aggrieved by a magistrates’ court decision, which includes both a convicted accused and an unsuccessful prosecutor. Decisions of the Crown Court, not made in connection with its jurisdiction over trials on indictment, may also be challenged through a case stated for the opinion of the High Court or an application for judicial review.
Introduction
Authors: Lodge Hugo D
Published: March 2021

Without the Sanctions and Anti-Money Laundering Act 2018 (‘the 2018 Act’), the UK would not meet its international obligations post Brexit. Further, the 2018 Act gives the UK the means to take a different course from the EU on sanctions policy. Early signs are that the UK is determined to diverge, at least in respect of freezing the assets of Russian citizens, amongst others, whom the UK holds responsible for human rights abuses.
Financial Sanctions
Authors: Lodge Hugo D
Published: March 2021

Recent UK practice has seen the development of financial sanctions in the form of asset freezes, restrictions on access to financial services and assets, and at its most draconian, directions to cease all manner of business.
An Historical Perspective I
Authors: Goebel Roger
Published: March 2021

The European Community (EC), now absorbed into the European Union (EU), has achieved extraordinary results in economic, political, social, and legal integration. The initial European Economic Community’s purpose was to achieve an integrated economic market for the benefit of business and financial enterprises, while bringing to the population as a whole a higher standard of living. Although principally designed to serve economic ends, the Community soon acquired political, social, and cultural dimensions.
The European Parliament
Authors: Bradley Kieran
Published: March 2021

The European Parliament is the first of the Union institutions listed in Article 13(1) TEU. As an ‘institution’, it enjoys a certain number of rights, prerogatives, and privileges, and is subject to a certain number of obligations. Thus, for example, in its decision-making, Parliament must ‘promote the Union’s values, advance its objectives, serve its interests and those of its citizens and … Member States’; it must also ‘ensure constant respect for the principles of subsidiarity and proportionality’, ‘act within the limits of the powers conferred on it in the Treaties’, and comply with any international agreements concluded by the Union. It must maintain a dialogue with civil society, conduct its work as openly as possible, grant citizens a right of access to documents it holds, and protect the personal data of individuals in its procession. Parliament may participate as of right in most types of proceedings before the Court of Justice of the European Union (CJEU) and enjoys legal capacity in the Member States in respect of matters concerning its own functioning. It is also subject to the auditing authority of the Court of Auditors and the jurisdiction of the European Ombudsman as regards allegations or investigations of maladministration. More
The Commission
Authors: Oliver Peter , Martenczuk Bernd
Published: March 2021

The European Commission is the executive of the European Union and one of its institutions. Its seat is in Brussels, although some of its departments are located in Luxembourg. The provisions relating to its composition and role and to the duties of Commissioners are to be found first and foremost in Article 17 TEU and Articles 244 to 250 TFEU.
The European Central Bank
Authors: Zilioli Chiara , Athanassiou Phoebus
Published: March 2021

The provisions on Monetary Union (MU), of the Treaty on the functioning of the European Union (TFEU or the Treaty), as well as the Statute of the European System of Central Banks and of the European Central Bank (the Statute), are important in their own right, and are amongst those from which any student of the European Union (EU) can learn a great deal with regard to the EU.
Supranational Differentiation and Enhanced Cooperation
Authors: Thym Daniel
Published: March 2021

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where the Court stated that ‘the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty’. Unilateral national deviations could not be tolerated without the common rules ‘being deprived of their character as Community law and without the legal basis of the Community itself being called into question’. Other expressions of the ‘unity dogma’ include the principle of non-discrimination or the uniform composition of EU institutions. This contribution demonstrates that the asymmetric non-participation of some Member States in selected policy areas can be embedded into the supranational legal order. The main danger seems to be a structural weakening of political legitimacy.
Enforcement Actions
Authors: Prete Luca
Published: March 2021

The enforcement of EU law on non-compliant national authorities has, at its heart, infringement proceedings brought pursuant to Articles 258 to 260 TFEU. That focus is embedded in the scheme of the EU Treaties. In that regard, infringement proceedings are a particular feature of the EU legal order. As the Court of Justice stated in one of its first cases, ‘it is a procedure far exceeding the rules heretofore recognized in classical international law, to ensure that obligations of States are fulfilled’. Indeed, under the rules of public international law, there is no obligation to settle disputes or to establish formal and legal procedures for dispute resolution, which, where they exist, always depend on the consent of the parties concerned. By contrast, the jurisdiction of the Court in cases of EU law infringements by Member States is compulsory and constitutes a corollary to membership in the European Union.
Announcement and the Offer Dance
Authors: Kershaw David
Published: March 2021

This Chapter considers the Code’s regulation of the pre-offer period. It considers both the regulation of the provision of information to shareholders and to the market about the possibility that an offer may be made and the regulation of the courtship period prior to the offer where the bidder attempts to persuade the target board and the target shareholders to be receptive to the offer (the “pre-bid dance”). More precisely, it considers the disclosures that any shareholder must make when specified ownership thresholds are crossed and the circumstances in which the Code requires an announcement about the possibility of an offer. The Chapter critiques the Code’s strict approach to the suggested terms included in a possible offer announcement, questioning whether its restriction on amendment in the absence of reservations significantly reduces the unavoidable uncertainty surrounding a possible offer. The Chapter is also critical of the Panel’s approach to requests to amend terms when no reservations to suggested terms are included in the announcement. In this regard, it shows how the Hearings Committee’s reasoning supporting its very strict approach in the Kalahari Minerals case is unpersuasive. The Chapter then considers the regulation of the pre-bid dance including the put-up or shut up rule and the Panel’s post-Cadbury difficulties in regulating statements of future intention, which initially led to expansive and unthought-through regulation of intention statements and then to recent Code amendments providing for Post-Offer Undertakings and Post-Offer intention statements. This section concludes by arguing that although several of Code pre-bid rules and rulings are difficult to make sense of on their stated terms, they can be made sense of in terms of attempts to shift the structural pro-bidder power balance of the Code back towards the target board. They demonstrate that the Code does not, as it purports to do, take a neutral position between facilitating and impeding takeovers and that the structural power balance, generated most importantly by the non-frustration rule, distorts rule-making in other areas of the Code. Finally, the Chapter considers the firm offer announcement and its effects and the Codes share purchase disclosure regime during an offer.
Regulating Timetable and Disclosure
Authors: Kershaw David
Published: March 2021

The Chapter considers Code regulation of the bid timetable as well as its regulation of the information provided to shareholders and stakeholders as part of the bid process. With regard to time regulation the Chapter details the Code’s bid timetable for contractual offers and schemes: from the commencement of the offer period, the competing bid timetables, to the payment of consideration. The Chapter explores and challenges the assumptions about investors and market practice on which this time regulation is premised. The Chapter then turns to disclosure. It explores and details the types of disclosure required in relation to the bid itself and of the bidder and target companies, and explores the techniques deployed by the Code to ensure the accuracy, and informativeness, of the disclosures. The Chapter argues that for mandatory takeover bid disclosures to be justified they must be additive, informative in practice and actually used. The Chapter raises questions about whether all Code disclosures comply with these criteria. Particular concerns are raised about predictive information relating to the commercial effects of the business combination as well as the effects on employment and business location. The Chapter submits that practical business considerations and concerns about ex-post reputational damage where reality departs from prediction (as well as concerns about ex-post enforcement action by the Panel, results in disclosures that are often uninformative, benefiting only those who are paid for producing them.
The European Top-Level Domain ‘.eu’
Authors: Bettinger Torsten
Published: March 2021

In February 2000, as part of the eEurope Initiative, the European Commission commenced public consultation on the introduction of a new ccTLD, ‘.eu’. Its aim was to create a clearly recognizable link with the Community, thereby making the internal market more visible on the Internet-based virtual market, and allowing enterprises, organizations, and natural persons within the European Community the opportunity to register their sign or name under a top-level domain that would manifest their European identity.
Belgium (‘.be’)
Authors: Strowel Alain , Docquir Benjamin
Published: March 2021

The trademark owner can also request the President of the Court to appoint a sequestrator or trustee to store the infringing items until the Commercial Court has decided on the merits of the case, and to appoint an expert to create a list of all infringing items, tools used for infringing activities, and relevant business-related data.
Germany (‘.de’)
Authors: Bettinger Torsten
Published: March 2021

Disputes arising under trademark and competition law owing to the registration and use of domain names have become commonplace in German courts. Following a phase of widespread legal uncertainty, in the meantime the core problems of domain names under trademark and competition law have been resolved. There are more than 50 judgments from the German Federal Supreme Court (BGH) and a multitude of decisions from the courts of the lower instances in disputes concerning domain names.
Sweden (‘.se’)
Authors: Rindforth Petter
Published: March 2021

Trademark protection in Sweden can be obtained by use, by a national Swedish trademark registration, by a Madrid Protocol registration covering Sweden, and/or by a Community Trademark registration.
Listed Company Considerations
Authors: O’Dea Geoff , Long Julian , Smyth Alexandra
Published: March 2021

Whilst a scheme of arrangement is a court-sanctioned process, any company that proposes a scheme to its members or creditors or is otherwise involved with the scheme (for example, as a bidder in a takeover offer that is affected by way of a scheme of arrangement) must consider whether the corporate action at the centre of the scheme is governed by other applicable laws and regulations. These laws will include the laws of the country of its incorporation and, where the shares of the company are publicly listed, the rules of the relevant market or markets.
Types of Member Schemes
Authors: O’Dea Geoff , Long Julian , Smyth Alexandra
Published: March 2021

Member schemes implemented pursuant to Part 26 of the Companies Act 2006 can be used to effect a wide variety of compromises and arrangements between a company and its shareholders. As described in Chapter 1, examples of these arrangements include: (i) the takeover of that company; (ii) a demerger of, or involving, that company; (iii) the addition of a new holding company above that company (often used to effect a corporate redomiciliation of the company’s group or to help facilitate making a capital reduction); (iv) a return of capital to shareholders of that company; (v) the removal of minority shareholders of that company; and (vi) group reorganisations combining one or more elements of (ii) to (v).
National Report for Mexico
Authors: y Velasco Carlos Sánchez-Mejorada
Published: March 2021

In civil law systems, such as Mexico, a distinction is made between civil law (‘derecho civil’) and commercial law (‘derecho mercantil’), which can be confusing to persons unfamiliar with the system. As is the case in common law jurisdictions, law in civil law systems can be divided into public law and private law, the latter being those laws that govern relationships between and among private parties, regarding which the state functions more as a ‘supervisor’ or an ‘umpire’ than as an authority. Public law would include constitutional law, administrative law, etc. In turn, private law comprises civil law, ie those rules governing the status, rights, and obligations of the residents of the state as persons, their property, their estates, their obligations, and their contracts; and commercial law, those rules governing all acts of the residents of the state that have a profit motive, which in Mexico—as well as in other jurisdictions—are called ‘acts of commerce’ (‘actos de comercio’).
National Report for Poland
Authors: Porzycki Marek , Rachwał Anna
Published: March 2021

The treatment of contracts under Polish insolvency law varies depending on the type of insolvency proceedings. Legal relationships between the debtor and other parties are modified to a significant extent in winding-up bankruptcy (‘upadłość likwidacyjna’ or ‘upadłość obejmująca likwidację majątku upadłego’), while most contracts remain unchanged by reorganization bankruptcy (‘upadłość układowa’ or ‘upadłość z możliwością zawarcia układu’). In rarely used rehabilitation proceedings (‘postępowanie naprawcze’), contracts are almost unaffected except for a general ban on performance of obligations. Even though in reorganization bankruptcy there are two distinct possibilities of the debtor remaining in possession of the estate or of the estate being managed by an administrator, this subdivision does not result in any further differences in treatment of contracts.
The Confusion Test in European Trade Mark Law
Authors: Fhima Ilanah , Gangjee Dev S.
Published: March 2021

Historically, likelihood of confusion has been the core infringement test for trade mark law, and it remains the most frequently applied test in infringement actions by far. However, there are noticeable differences in how it is applied by the Court of Justice of the European Union (CJEU), the General Court, and national courts; and questionable outcomes when it is applied in novel situations. This book is the first comprehensive and systematic account of the confusion test within the harmonised European trade mark system. It considers how the test is applied by national trade mark registries across EU member states, by the European Union Intellectual Property Office (EUIPO), by national courts, and by the CJEU. It offers practical guidance, while also evaluating the viability of more recent developments such as initial-interest confusion, post-sale confusion and consumer responses to uses of trade marks on the internet. The book analyses three distinct strata of legal doctrine: the decisions of the CJEU, including the General Court; the extensive body of decisions by EUIPO; and the application of harmonised trade mark law by courts of member states, focusing on leading decisions as well as wayward ones. It also draws upon the legal position in the US to illuminate these issues.
Similarity of Marks
Authors: Fhima Ilanah , Gangjee Dev S.
Published: March 2021

The test for similarity of marks has changed very little since it was laid down by the Court of Justice of the European Union (CJEU) in SABEL v Puma. Given that the court has adopted a strict approach to when marks will be identical, similarity of marks plays a crucial role in ensuring that the interests of trade mark owners are adequately protected. There the court stated that a ‘global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components’ with a view to determining whether the signs in question are similar enough to lead to a likelihood of confusion in the minds of the average consumer of the goods or services in question. It has subsequently been suggested that, where marks have other sensory aspects, as would be the case with, for example, an olfactory mark, these too should be considered. The court also noted that average consumers tend to view marks as a whole, rather than dividing them into their constituent elements.
Non-Traditional Marks and the Likelihood of Confusion
Authors: Fhima Ilanah , Gangjee Dev S.
Published: March 2021

The very label ‘non-traditional’ serves as a reminder that trade mark rules have developed around a traditional core of word and device marks. The likelihood of confusion test has in turn been influenced by this history. This chapter describes the manner in which a test developed around a template of traditional marks can be extended to disputes involving colours, shapes, and other less conventional marks. Such disputes inevitably raise novel issues. For instance, when may the defendant’s use of a colour on their products be construed as trade mark use, instead of merely incidental or decorative use? And how are courts to assess the similarity of colours, bearing in mind that consumers are deemed to have imperfect recollection? More pertinently, can such consumers distinguish between two shades of the same colour? Can two product shapes be sufficiently visually similar to satisfy the test, despite prominent and dissimilar word marks also being present on the products?
Privity of Contract
Authors: Fairgrieve Duncan , Goldberg Richard
Published: March 2021

The first part of this book covers the liability of a seller of goods for misrepresentations and for breaches of the express and implied terms of a contract of sale. Reference is also made to certain analogous transactions such as contracts for the hire-purchase or hire of goods and contracts for work and materials.
The Types of Damage or Loss compensated
Authors: Fairgrieve Duncan , Goldberg Richard
Published: March 2021

There may be major difficulties in determining the types of damage or loss which will be compensated in product liability litigation and this is so whether the claim is based on the strict liability provisions of Pt 1 of the Consumer Protection Act 1987 or the general law of negligence. In some cases it will be clear that the 1987 Act is inapplicable and hence that the standard requirements of the law of negligence must be met or the existence of a contractual claim established. For example, the defendant may not be a person who is potentially subject to liability under s 2 of the Act or the damage may be of a type which the Act does not compensate. Alternatively, a claim under the Act may be barred by virtue of the expiry of a limitation period or, and this is increasingly less likely with the passage of time, because the relevant product was supplied before the Act came into force on 1 March 1988.