bluuebunny/crossref_metadata_2025 huggingface dataset:
Delivery of Goods to Carriers in International Sales: An Examination of What It Purported to Be in Nigeria
Authors: Abiodun Jacob Osuntogun
Published: March 2022

Summary

 

This article deals with international sales. Specifically, it discusses the question of delivery of goods to the carrier and its implication that it shall be ‘prima facie deemed to be a delivery of the goods to the buyer’. The legal consequences in Nigeria of a contract entered into by parties of different origin with respect to delivery of goods to the carrier are examined. It further discusses how a breach of duties and obligations on the part of the parties can lead to the application of statutory exceptions. It notes that there are two international conventions ratified and domesticated in Nigeria, but one protects the interests of one party more than the other and the other also does the same with the interests of the other party. It considers the application of these international conventions on the issue of delivery of goods to the carrier. Furthermore, it also considers the application of Incoterms in Nigeria to carriage of goods and argues that the controversy generated in the United Kingdom by Vaughan Williams LJ and Buckley LJ, on the one hand, and Hamilton LJ, on the other hand, has reverberated to Nigeria. It points out a misconception in the application of law on this issue which has been accepted as a settled principle of law in Nigeria.
A Fresh Perspective on Hedge Funds: Exploring New Opportunities Post-Brexit
Authors: Domina Repiquet Mariia
Published: March 2022

Hedge funds – rather a financial term than a separate legal category – denote distinct investment funds that use sophisticated investment strategies and are ‘lightly’ regulated as compared to traditional retail-oriented funds. Largely unregulated prior to the 2007/2008 financial crisis, they are now within the tight regulatory perimeter of the Alternative Investment Fund Managers Directive (2011). This article discusses the future of the UK hedge fund industry post- Brexit and explores the opportunities offered by Luxembourg hedge fund legislation. After the exit from the EU, the UK will be considered a ‘third country’ for the purposes of the Directive. Consequently, the UK hedge fund managers will lose the EU passport to manage and market their funds to the EU investors. This article argues that Luxembourg may serve as a jurisdiction of choice for UK hedge fund managers to establish their subsidiaries and act through them to be able to continue offering their units to EU investors. The overview of the recent reforms in both jurisdictions (UK Private Fund Limited Partnership 2017, Luxembourg Reserved Alternative Investment Fund 2016 and Special Limited Partnership 2013) is discussed in terms of their competitiveness post-Brexit.
Corporate Governance of Banks and Financial Stability: Critical Issues and Challenges Ahead
Authors: Bodellini Marco
Published: March 2022

SUMMARY

 Inefficient and/or ineffective corporate governance arrangements of banks can end up endangering financial stability. Therefore, the efficiency of such arrangements is of paramount importance.

To be efficient, corporate governance structures of banks have to put in place mechanisms allowing them to keep risks under control. With these mechanisms, indeed, decision-makers can react when risks overcome the safety thresholds by bringing them back to acceptable levels.

In the aftermath of the global financial crisis of 2007– 2009, the EU legislator, following the recommendations of the Basel Committee on Banking Supervision, has adopted a number of new rules, which look apt to enhance the efficiency of banking corporate governance arrangements.

However, more time is needed to assess in practice whether such new rules are effectively efficient in enabling banks to manage risk.
Crowdfunding in India: A Misnomer?
Authors: Tripathy Atmaja
Published: March 2022

SUMMARY

India continues to be one of the most vibrant and lucrative commercial locations for start-ups.With a steeply rising competitive sphere amongst start-ups in the B2B technology sector, more predominantly in the ecommerce, healthtech, and fintech sectors, India has capped its position as the third largest start-up ecosystem in the world. To keep the steady growth of start-ups, a key parameter, besides the innovative quotient in the scheme, is to strengthen investments into start-ups. For decades, globally, crowdfunding has proved to be a successful tool in pooling resources for innovative start-ups, with a promising future on investments. In India however, the scope and prospects of crowdfunding have been underutilized. The Securities Exchange Board of India, which is the securities market regulator in the country, has yet to recognize the uncompromised benefits that regulated crowdfunding bestows on the innovative endeavours of start-ups.

In this article, the author analyses the success and effectiveness of equity crowdfunding in building a robust start-up and investment ecosystem in India, by juxtaposing it with the jurisdictions which legally recognize and regulate crowdfunding. In the first segment, the author draws a broad picture of the crowdfunding market. Next, the wavering opinions of the Indian securities market regulator and the unparalleled need to legally recognize equity crowdfunding as a viable investment option are analysed. Towards this objective, the author advocates the creation of a statutory framework which can effectively control and regulate the Indian crowdfunding market.
Why Is the Rule in Foss v. Harbottle Such an Important One?
Authors: Spotorno Agustin Ricardo
Published: March 2022

SUMMARY

The Rule of Foss v. Harbottle has established an elementary principle in the field of company law: the proper plaintiff for a wrong done to a company, is the company itself. This principle together with the ‘Salomon’ principle of separate legal personality of companies have been of invaluable importance for commerce and modern economy. On the flip side of the coin have always lain the minorities, commonly protected by derivative claims and unfair prejudice remedies. After the entering into force of the new statutory derivative actions, many scholars argued that the Rule of Foss was abolished, also that there would be an increase in shareholders’ litigation and have further expressed concerns about overlaps between both derivative actions and unfair prejudice remedies. This article argues that, irrespective of whether the Rule of Foss was amended from its original formulation, its underlying principles are still today of the utmost importance. It also analyses whether or not there has been such increase in litigation, and finally why it is of such relevance to keep the dividing line between derivative claims and unfair prejudice remedies very clearly drawn.
Breaking Badly: Optimizing the Architecture for Joint Venture Arbitrations
Authors: Harris Peter
Published: March 2022

SUMMARY

This article considers legal and practical issues that arise in joint venture disputes that proceed to arbitration. In particular, this article considers problems arising out of (1) not having all parties involved with the joint venture (and therefore potentially involved in the dispute) named as signatories to the arbitration agreement, (2) limitations on the powers of arbitrators appointed to resolve joint venture disputes, and (3) difficulties associated with valuing the joint venture for the purposes of the arbitration. The paper suggests practical steps that can be taken to deal with these problems including at the drafting stage.
Capture of Regulatory Agencies: A Time for Reflection Again
Authors: Yeoh Peter
Published: March 2022

SUMMARY

 

 This article examines the theoretical underpinning for regulatory capture including analysing practical examples from three high-profile industries. Importantly, it traces the main sources of regulatory capture, and suggests why and how these could be curbed through various ways including the use of enlightened regulatory capture.
Brexit and the Boilerplate Clauses in Commercial Contracts
Authors: Kovac Mitja , Aubrecht Paul
Published: March 2022

Business lawyers and commercial contracting have been stressed by political uncertainty over the past two years. The prospect of states withdrawing from the European Union creates questions for business law scholarship and practitioners. Lawyers drafting contracts for firms conducting business across borders in different jurisdictions have found new ways to address these risks in their contracts using the so-called ‘Quitaly’ or ‘Brexit’ clauses. Yet, the question imposed on business law scholarship is whether the existence of these clauses materially changes the options available to the contracting parties, or are they simply an extension of other types of clauses, such as a force majeure clause, or other contracting principles, such as the concept of material change of circumstances found within the Contracts for the International Sale of Goods (CISG)? If existing legal norms are incapable of dealing with the Brexit, are we seeing an emergence of a new legal paradigm? Considering the aforementioned issues, this article seeks to address the issues of whether private contracting is adequately addressing the legal risks of potential devolution and whether current contracting approaches to these risks are adequate and effective.
The Case for Public Enforcement of Directors’ Duties: An Australian Case Study and Application to Nigeria
Authors: Akanmidu Oludara
Published: March 2022

Like many other common law countries, Nigeria imposes statutory, duties on its companies’ directors. Breaches of these duties, are expected to be enforced ‘privately’ by the company, its, shareholders or any other proper person. Despite this, evidence, suggests that in Nigeria there has been little enforcement of, directors’ duties. Consequently, this article examines whether, there is a place for public enforcement of directors’ duties. It, questions whether the failings of the private enforcement regime, necessitate a complementary enforcement regime. To address this, question, it draws on a theoretical framework, the deterrence, theory, in exploring whether public enforcement offers superior, deterrence over private enforcement. It also examines Australia, as a case study of a jurisdiction that has effectively used the, public enforcement regime for breaches of directors’ duties., Overall, it argues that to enhance enforcement, Nigeria ought, to introduce a public enforcement regime for breaches of directors’, duties.

enforcement, directors’ duties, deterrence, Australia, Nigeria
New Decade: New Privacy Cases
Authors: Flint David
Published: March 2022

January 2020 saw the release of a number of important Opinions by the Advocate General of the European Court of Justice in several referrals for a Preliminary Ruling in which the question of retention and transmission of personal data were to the fore. Clearly, the Court will not be bound to follow these Opinions, but they do give an insight into the direction that the Court may take.
Security Review in the Evolution of Foreign Investment Law with Chinese Characteristics: Part I
Authors: Liu Ziyu
Published: March 2022

When the Foreign Investment Law of China was adopted on 15 March 2019, security review was emphasized as an essential layer governing inward foreign investments, which had evolved from national security concerns embedded at market access review for foreign-invested enterprises (FIEs) and projects, security review for mergers and acquisitions. This article studies the evolution of China’s security review in foreign investment and finds that both changing focuses on identifying national security in China’s socialist market economy and the institutional struggle in certain central ministries addressed by the Chinese Communist Party (CCP) have in fact affected the evolution of security review in the Foreign Investment Law (FIL) with Chinese characteristics.

Security review, Foreign Investment Law, institutional struggle, Chinese Communist Party, institutional reform, market access review, mergers and acquisitions, M&A security review, leadership
Right to Work at the Theatre of Discrimination in a Resource- Dependent Country: Opera Employers’ Market
Authors: Adetoro David O. , H. Adetoro Sylvia
Published: March 2022

The past few decades have seen the political class in Nigeria use a commitment to providing employment for the populace and incentivizing possible employers as a marketing tool to gain popularity and acceptance in the race to power.Without an apparatus in place to compel these promises, and with a downturn in the economy, the employment market appears to be under the full control of employers and their agents. Setting age barriers, particularly limiting the upper age limit for most advertised positions. has now become a common feature in a large number of employment advertisements. Job applicants have become vulnerable in the hands of employers, creating a platform for tacit discrimination against anyone who is above the expected age limit; this is without regard to their qualifications and experience. The employment market in Nigeria has fast become a theatre of discrimination, where securing an entrance ticket is based on a precondition outside the control of these vulnerables. This seems to be in clear disregard to extant laws and especially Nigeria’s obligations under international labour standards and a sense of dignity of the applicants. Amongst other things, this article aims to examine this development and its implications for employment relations in Nigeria.

age-discrimination, young adult, recruitment vulnerables, resource-dependent
The Insolvency and Bankruptcy Framework and Principle of Business Efficacy across Different Jurisdictions in the COVID Era
Authors: Doshi Hetal , Jain Yashasvi
Published: March 2022

The famous phrase from the Darwinian evolutionary theory, ‘survival of the fittest’ seems to be true in the backdrop of the current global economy. The Coronavirus (‘Covid-19’) crisis has compressed this concept into six months or for as long as this pandemic remains. While the spread of this virus is one of the biggest human tragedies, it has been nothing less than a catastrophe for the global economy, leading to the disruption of viability of businesses at a global level. This has prompted the business community all over the world to seek relief from their governments on debts and appeal for various other safety net measures to ensure the continuity of their businesses amidst, and after, this pandemic. Most of the governments have proactively introduced unprecedented measures to safeguard the businesses from going under insolvency and to ensure that not only the fittest companies but all survive this pandemic. This article explores these measures adopted in a few common law (UK and India) and civil law countries (France and Germany) and analyses their possible impact on the parties involved in the short as well as the long term.

Insolvency, Covid-19, Moratorium, Temporary Relief, UK, India, France, and Germany
Enhancing Corporate Transparency in the United Kingdom: Compelling Identity Verification of People with Significant Control
Authors: Shan Ho John Kong
Published: March 2022

In 2015/2016 the United Kingdom (UK) became the first country to implement the People with Significant Control (PSC) regime which requires disclosure of beneficial ownership of companies. With relative success in the implementation of such regime, the UK authorities have decided to further enhance it by making the identity verification of PSC compulsory and placing the responsibility on PSCs themselves to verify their identity with Companies House. This article examines the background of introducing such a regime in the UK and explores the recent proposal in its further enhancement. It is ultimately argued that it was correct for the UK to enact such a regime back in 2016 and why making the identity verification of PSC compulsory is the right step in enhancing corporate transparency and is beneficial to its economic competitiveness.

Corporate law, Corporate disclosure and transparency, Beneficial ownership, PSC regime, United Kingdom
Data Protection: A Review
Authors: Flint David
Published: March 2022

Director’s duty towards creditors, safe harbour approach, India, Insolvency & Bankruptcy Code, 2016, corporate insolvency
The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations
Authors: Ramsay Ian , Freeburn Lloyd
Published: March 2022

When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.
The Failures of the Insolvency Provisions: A Road to Establishing the Pertinence of Veil Piercing?
Authors: Abdul Sola
Published: March 2022

This article explores the pertinence of ‘piercing’ for fraudulent trading. It considers the failures of the insolvency provisions and examines the failures through the lens of the evasion principle for piercing. The article argues that the piercing doctrine does not prove to be an effective remedy of last resort. Despite this, the article argues against the abolition of veil piercing, as this would leave the law in a state of vacuity and concludes by suggesting methods of reform that could improve the doctrine.

Piercing the Corporate Veil, the Fraudulent Trading Provision, the Wrongful Trading Provision, the Insolvency Act 1986, Prest v. Petrodel Resources Ltd, Morphitis v. Bernasconi
Changes and Challenges of the Role of a Trustee in a Commercial Context: Does this Separate Commercial Trusts from Trusts?
Authors: Zhang Ruiqiao
Published: March 2022

As well as acting as a guardian of family assets, trusts have increasingly become a commercial device to manage portfolios of financial assets. One of the most dramatic transformations of a role that has accompanied the evolution of trusts has been that of the trustee. The objective of this article is to examine the key changes and challenges that the commercial use of trusts has brought to the trustee’s role and to answer whether or not those changes or challenges suggest the separation of commercial trusts from trusts. I argue that the role of a trustee in a commercial context has developed in various ways from that of a traditional family trust so that it accommodates the complex commercial uses of trusts; however, the fundamental rules of trusts and the essential duties of trustees have remained the same, and the trust law itself has continually developed to resolve problems that arise in the commercial uses of trusts. Thus, it is neither correct nor necessary to separate a commercial trust from a traditional trust in order for it to be an independent legal vehicle; this would consequently require the establishment of a new set of rules.

Trust law, commercial trust, evolution of the role of a trustee, rule of law, whether a commercial trust is in the essence of a trust
Tax abuse and EC law
Authors: Blumenberg Jens , Rädler Albert J. , Lausterer Martin
Published: March 2022

Does the general application of the German Anti-abuse Rule under section 42 of the German General Tax Act to German participations in Irish IFSC subsidiaries infringe community law?
Ex officio Application of EC Law by National Courts of Law in Tax Cases, Discretionary Authority or an Obligation?
Authors: van Dam J.J. , van Eijsden J.A.R.
Published: March 2022

Individual taxpayers can make a direct appeal to EC law which is sufficiently precise and unconditional for national courts of law. However, if a taxpayer fails to make an appeal to a clear infringement of EC law during a court procedure, the question arises whether a national court is authorized, or even obliged, to consider of its own motion whether a domestic tax provision is incompatible with EC law. In this article the applicable Community procedural framework as developed by the ECJ is depicted, which framework can be considered as a minimum harmonization of the national procedural law provisions of the various Member States. Subsequently, the conditions under which a domestic court is obliged to apply EC law of its own initiative are discussed. For illustration purposes the Dutch procedural rules in tax cases are assessed within the Community procedural framework.
Treatment of Losses in an EU Corporate Tax Group: Ending a Series of Unfortunate Events
Authors: Dwi Nugroho Adrianto
Published: March 2022

This article elaborates on how losses shall be treated in the absence of the CCCTB. Three questions are to be answered by this article. First, how should a corporate tax group be defined in the EU? Second, in the lack of purview on the (upstream and horizontal) profits shifting (which would deploy transfer pricing regulations), how should intra–group crossborder offset of losses (with the possibility of double dip of losses) within an EU corporate tax group be justified? Finally, how should the treatment of losses in an EU corporate tax group be harmonized? In order to obtain the answers to those questions, this paper will analyze four domestic tax laws of Member States related to those issues, as well as the European Commission documents on corporate taxation.
Deduction for Export Activities in Spain’s Corporation Tax: Present and Future
Authors: Magraner Moreno Francisco J.
Published: March 2022

The European Commission, in its Recommendation of 22 March 2006, considered that the deduction for export activities in Spanish corporation tax constituted a State aid incompatible with the single market under Article 87(1) of the EC Treaty. This pronouncement clearly shows how community legislation as regards State aids emerges as an important constraint on the tax sovereignty of Member States and, more specifically, on the use of taxes for extra–tax purposes. This paper examines the regulation of the deduction for export activities in Spain’s corporation tax before and after the Commission?s mentioned Recommendation.
ECJ Rules on Compatibility of Belgian Participation Exemption Regime with EC Parent-Subsidiary Directive
Authors: Peeters Bruno , Peeters Bruno
Published: March 2022

This contribution deals with two judgments the European Court of Justice (ECJ) recently has issued regarding the conformity of the Belgian participation exemption with the EC Parent-Subsidiary Directive. The case Belgian State v. Les Vergers du Vieux Tauves SA of 22 December 2008 clarifies the personal scope of application of the Directive. A usufructuary cannot be deemed to have a holding in the capital since from a civil law perspective it derives its right to receive profit distribution from its sufructuary rights and not from a holding in the capital. In the Belgische Staat v. NV Cobelfret case of 12 February 2009, the ECJ again rules that a Member State cannot apply unilateral conditions not provided for in the Directive. This case concerns the condition under Belgian domestic law according to which a parent company must have a positive taxable basis in order to benefit from the participation exemption.
Abuse of Tax Law across Europe (Part Two)
Authors: Manzitti Andrea , Durand Pierre-Henri , de Monès Sébastien , Mandelbaum Jean-Florent , Klein Martin , Niemann Alice , Lasarte Guillermo Canalejo , Benítez Gloria Marín , Airs Graham J. , Prat Bredin , Mueller Hengeler , Pappalardo Bonelli Erede , Menéndez Uría
Published: March 2022

Abuse of tax law is both a complex and ambiguous concept per se. Added to the fact that each country has its own approach, which entails differing consequences as regards domestic, European community and international tax law, abuse of tax law across Europe may become a real puzzle. A thorough analysis of such concept requires both to bring out common features, shared by all domestic approaches of the countries at stake – i.e., France, Germany, Italy, Spain, and the UK – but also to describe the theoretical and practical specificities of each approach. The second part of this article, which apprehends the Italian, Spanish and British approaches, completes the first scan of the similarities and dissimilarities of the same concept, viewed through varied domestic prisms (for the French and German approaches, see EC Tax Review 2010-2). For example, on the one hand, Italy, Spain and the UK all have a prior ruling procedure, and apply no specific penalty to abusive schemes – as France does for example. On the other hand however, their approaches differ on a certain number of topics: the obligation of disclosure, for example, is compulsory in some cases in the UK whereas there is no such obligation in Italy or in Spain.
Distinction between State Aid and General Tax Measures
Authors: Rydelski Michael Sánchez
Published: March 2022

The application of tax measures may have effects that could bring them within the scope of the State aid provision of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU). However, only selective measures, that is, measures that favour certain undertakings or the production of certain goods, may constitute State aid within the meaning of Article 107(1) TFEU. General measures that benefit all undertakings in a Member State do not qualify as State aid. How wide has the circle of beneficiaries to be in order to escape the State aid notion? This article will try to shed some light on the question on where the Commission has drawn the line between State aid measures and general measures in the area of taxation. So far, the Commission has only adopted a handful of decisions in which it took the view that the tax measures at stake qualified as general measures and consequently did not constitute State aid. The threshold of convincing the Commission that a certain tax measure qualifies as general measures is very high. However, recent Commission decisions indicate that the Commission might now take a more flexible approach on this issue. These recent Commission decisions are summarized in this article.
Limiting Benefit Shopping: Measures of Four Large EU Member States to Counter Erosion of Their Dividend Tax
Authors: de Graaf Arnaud
Published: March 2022

Triptych: Shopping for tax advantages: what can (and cannot) be done to prevent it. This article forms part of a triptych, each panel of which is independent of but also complements the other two. The theme of the triptych is what measures are possible – and impossible – in combating conduit arrangements under EU law. The first panel was published in EC Tax Review 2009/6 and deals with the issue of when Member States – specifically in their capacity as source state – can deny advantages to conduit companies under EU law. In this second panel, we outline the measures that four large Member States have introduced in order to combat dividend tax-saving arrangements involving conduit companies. In the third and final panel to be published in EC Tax Review 2010/6, the authors will make recommendations to the Member States as regards the tools that they can use to combat conduit arrangements.
The Impact of European Law on Domestic Procedural Tax Law: Wrongfully Underestimated?
Authors: van Eijsden Arjo
Published: March 2022

CJ case law reveals that European law is having an increasing influence on procedural tax law. In this article, an overview of the influence of European law on procedural tax law will be depicted. Procedural tax law is here defined as the totality of rules regarding the manner in which material tax liabilities should be expressed in the actual payment of tax. The authors will describe the above-mentioned influence in two articles. In part 1, the authors first outline the European law framework against which domestic procedural tax law should be tested. Subsequently, they discuss in more detail the notable influence of European Community (EC) law to several specific domestic rules and concepts of procedural tax law, such as entitlement to compensation for EC infringements, unlawful administration of justice, rules of evidence, and fixed payment of procedural costs. In part 2, the authors discuss whether national time limits, the impossibilities for an administrative body to re-examine an earlier decision, procedural legal effect, and the principle of res judicata, are compatible with European law.
Compatibility of Exit Taxes and Community Law
Authors: Kok Reinout
Published: March 2022

In 2010, the pressure on exit taxes in the field of corporate income taxation has increased. In this article, it will be investigated which kind of exit taxes exist in the field of corporate income tax. The Dutch corporate income tax will be used as an example. First, the author analyses the exit taxes from a domestic legislation and a tax treaty point of view. Dutch legislation provides for an immediate taxation over the hidden reserves of the assets/liabilities of a company that migrates and, as a result, is no longer effectively taxable in the Netherlands. Subsequently, it is being investigated whether levying an exit tax is a forbidden infringement on the freedoms of the Treaty on the Functioning of the European Union (TFEU). The author comes to the conclusion that the exit tax forms an infringement on the freedom of residence, but that the preservation of the balanced allocation of taxing power forms a justification. However, the exit tax provisions are not proportional: a mechanism with, for example, a preservative assessment would be more proportional. However, because of the unclarity regarding the application of the proportionality principle by the ECJ, it could be that the ECJ will accept an immediate taxation upon exit and will not force the Netherlands to introduce a preservative assessment mechanism in the field of corporate income tax.
New Implementing Regulation 282/2011 for the 2006 VAT Directive
Authors: Lamensch Marie
Published: March 2022

This article seeks to provide a comprehensive summary of Council Regulation 282/2011, which, applicable from 1 July 2011, recasts Council Regulation 1777/2005 and introduces several implementing measures for the 2006 VAT Directive. These are mostly based on guidelines previously agreed by the VAT committee and several relate to the changes introduced by the 2008 VAT package. The new provisions are important and touch upon nearly all areas of the VAT system (scope of application, taxable persons, taxable supplies, place of supply, taxable amount, rates, exemptions, deductions, and taxpayer obligations). As concluding remarks, this article also points at some important weaknesses of the new rules related to the compliance costs, the fixed establishment as paying entity, and the proposed tools that Council Regulation 282/2011 provides to taxable persons in order to implement the new rules governing the place of supply of (electronic) services.
Plea for a Multilateral Approach in the Judgments of the European Court of Justice
Authors: Cougnon Jean M.
Published: March 2022

No clear-cut provision of the Treaty on the Functioning of the European Union (TFEU) provides for a prohibition of double taxation, be it legal or economic. It may, however, be assumed that this prohibition is implicit, as a means to achieve the single market. When it is basically the aim of double tax conventions to prevent double taxation, such Conventions may not cover all possible situations. For these non-envisaged situations, if they entail cross-border aspects within the EU, the European Court of Justice (ECJ) has a mission of guiding the Member States, keeping into mind that their first care will probably be their own national budgets. Different approaches may be discovered in the recent case law of the Court. When some judgments, principally pronounced in the period 2006-2009, were marked by a multilateral approach having regard for the impact in country B of a given levy of tax in country A, other judgments restricted the scope of analyses to a given country, with no consideration for adverse consequences suffered elsewhere by taxpayers. The judgments developing the multilateral approach are interesting particularly for the decisive role they allow to double tax conventions, recognized as integral part of the tax legislation of Member States.
Towards a Modern EU VAT System: Associating VIVAT and Electronic Invoicing
Authors: Aujean Michel
Published: March 2022

In spite of all traditional anti-fraud measures adopted these last few years, the carousel fraud is still there. Moreover, the risk is becoming high for honest traders of being involved in such fraudulent transactions and the consequences can be very damaging for them. Time has come to reconsider solutions that would eliminate what makes such fraud so attractive: breaking the VAT chain by zero-rating intra-EU supplies of goods (i.e., the possibility to buy goods without immediate payment of VAT). Viable Integrated VAT (VIVAT) is such a solution. Under that proposal, a common rate of VAT would apply to all Business-to-business (B2B) transactions within the EU, while Member States would retain the power to fix their VAT rate for final consumption. At the same time, it would offer a general remedy by eliminating differences of treatment of domestic and intra-EU transactions. But VIVAT is not enough to ensure the control of the chain of taxation and deduction, notably in cross-border trade. It should be completed by an extensive use of electronic invoicing and the reorganization of VAT administration and control on that base. This article explores such an approach to a modern VAT system for a trade-integrated area like the EU.
Liechtenstein Tax Treaties: Ramifications on EEA-WHT Reclaims?
Authors: Wohlgemuth Georg , Glewwe Christian , Lindemann Alexander
Published: March 2022

Aim of this article is to examine the possibility for Liechtenstein Investment Funds1 to apply for a refund of discriminatory withholding taxes before tax information exchange agreement (TIEA) or a double tax treaty (DTT) was concluded with the respective EU/EEA Member State. In the light of recent tax treaties such as the DTT with Germany just signed, based on decisions made by the European Court of Justice (ECJ) in the recent past, this article is analysing whether the restriction of capital movement between the EU/EEA Member States can be justified in case of Liechtenstein Investment Funds using a tax evasion argumentation.
The Commissions Proposal for a Common System of Financial Transaction Tax: A Legal Appraisal
Authors: Henkow Oskar
Published: March 2022

The Commission's proposal for a Directive on a common system of financial transaction tax (FTT) is the first EU proposal for a broadbased FTT. It is proposed to be implemented in the EU by 1 January 2014. The FTT is to be applied to financial transactions with financial instruments where a financial institution is party to the transaction. In this legal appraisal of the proposal, key issues arising in the proposal are discussed, foremost concerning the scope of the tax. The proposal is benchmarked against key design features identified by commentators - the susceptibility to migration to financial transactions not covered by the FTT and to foreign territories. It is concluded that the scope is broad enough with regard to the coverage of financial transactions and that the definition of financial institutions is almost too broad. Migration to other territories will be possible but not as easy to realize as under the abolished Swedish FTT. It is also concluded that there are a number of legal uncertainties in the proposal that need to be clarified.
VAT Pitfalls in Intra-EU Commodity Trade
Authors: Wolf Redmar
Published: March 2022

In this article, the author addresses case law of the ECJ concerning the VAT aspects of the intra-community trade in goods. This trade falls under the provisions of the transitional VAT regime, a regime that has by now acquired a permanent status. In recent judgments, the ECJ filled in some voids left by the EU legislature. That the VAT treatment of, for instance, triangular sales is now harmonized, is good news. It can be doubted, however, whether the regime as devised by the ECJ will help trade. It leads to legal uncertainty, especially for intra-community supplies where the customer arranges the transport.
EU Review of Direct Tax Measures: Interplay between Fundamental Freedoms and State Aid Control
Authors: Rossi-Maccanico Pierpaolo
Published: March 2022

The State aid review of business tax measures under Article 108 TFEU (Treaty on the Functioning of the European Union) essentially concerns tax advantages which favour certain undertakings or productions, without there being a justification from the nature or scheme of the system. The presence of unjustified discriminations caused by national tax measures affecting the functioning of the Internal Market is also the condition for the Commission to promote infringement procedures, pursuant to Article 258 TFEU.

The case law relating to the joined review of national tax measures both under the application of State aid and the elimination of discriminations contrary to other Treaty rules is scarce but significant. Typically, the review of State aids and discriminatory tax measures is disjoined because the incompatibility of the latter measures, unlike State aids, is directly enforceable by national courts. Moreover, not all forms of discriminatory taxation are also State aid and the Commission has exclusive competence to review the compatibility of State aids, including fiscal aids.

However, the State aid review can sometimes lead to contextually determine, besides the selective nature of a tax advantage in favour of certain undertakings, the presence of additional market effects of a discriminatory tax system measure, without prejudice however to the separate examination of its justification for overriding reasons of public interest which can only take place in the framework of the more protective procedure pursuant to Article 258 TFEU. The assessment of the selective nature of a tax measure under State aid rules remains, however, separate from the one to ascertain possible tax restrictions or discriminations.

A Joint review provides for a complex framework by which when an aid measure is also discriminatory in a sense prohibited by other Treaty rules, the existence of a link between the discrimination and aid under review obliges the Commission to take into account the ulterior effects of the measure in assessing its compatibility with the Internal Market.
The Interaction between the Interpretation of Article 24 OECD MC and the Non-discrimination Standard Developed by the CJEU
Authors: Bammens Niels
Published: March 2022

This article discusses whether national courts in EU Member States, when interpreting tax treaty non-discrimination provisions, are influenced by the CJEU's case law on the fundamental freedoms. Because these non-discrimination standards are very similar, and because there is a perception that the non-discrimination standard developed by the CJEU outperforms the tax treaty nondiscrimination standard, those national courts could be tempted to draw inspiration from the CJEU's case law. However, this article concludes that, even though some examples are apparent in a number of recent cases, such an influence is currently not widespread in the reported case law.

In addition, this article considers whether European law requires national courts of EU Member States to draw inspiration from the case law of the CJEU. In this regard, the article concludes that the principle of legal certainty requires tax treaty non-discrimination provisions to be interpreted uniformly by all national courts, without any influence from specific legal instruments aimed at regional market integration.
Has the French 3% Contribution Become Compatible with EU Law and Tax Treaties?
Authors: van Nus Frank , Philibert Cédric
Published: March 2022

As a first act of tax legislation under the presidency of François Hollande, the French government introduced an additional contribution to the French corporate income tax (CIT) equaling 3% of profit distributions and profit repatriations made by companies subject to French CIT. The contribution first applied on profit distributions and profit repatriations made on or after 17 August 2012. Given the economic similarity of the contribution to a regular dividend withholding tax, one can question the compatibility of the contribution with primary and secondary European Union (EU) law and French tax treaties. On 10 April 2013, the French Tax Authorities issued official guidelines, limiting the scope of the contribution. But did this limitation sufficiently address all doubts one can have about compatibility of the contribution with EU law and French tax treaties? One year after its introduction, the authors still find reason to shed a critical light on the contribution.
FII 2 and the Applicable Freedoms of Movement in Third Country Situations
Authors: Nijkeuter Erwin , de Wilde Maarten F.
Published: March 2022

In this article, the authors discuss the approach that the Court of Justice of the European Union (CJEU) adopts in deciding which of the European treaty freedoms apply to third country situations. On 13 November 2012 the CJEU delivered a landmark ruling on this matter in the Test Claimants in the FII Group Litigation case. The CJEU observed that if the tax legislation in question is of a general nature then the free movement of capital also applies where European Union (EU) resident entities derive taxable proceeds from majority interests held in companies resident in third countries. In reaching this conclusion, the CJEU adopted an approach that seems to differentiate from that applied in earlier judgments. Moreover, the CJEU's findings clearly differ from the approach taken by the Dutch Supreme Court in various recent judgments. The Dutch Supreme Court considers external cross-border investments in majority shareholding interests as acts of establishment, which are not protected under EU law, because the freedom of establishment does not apply to third country situations. Assessing EU jurisprudence, the authors seek to answer the question which treaty freedom applies in cases involving the direct taxation of proceeds from cross-border third-country corporate shareholding interests and where does the approach adopted by the CJEU differ from that of the Dutch Supreme Court? The authors further address some potential consequences that the CJEU case law on this matter could have on the future interpretation of the freedom of capital.
The Financial Transaction Tax: The Way Forward for the European Union?
Authors: Kaiding Josephine
Published: March 2022

The aftermath of the financial crisis of 2008-2009 has seen considerable pressure for financial sector reform, and thus the European Union has decided to go forward with a financial transaction tax ('the FTT'). As disunity between the Member States resulted in enhanced cooperation being resorted to for the first time in the area of taxation, the measure will be implemented in only eleven Member States. Whilst this article agrees that reform is imperative, it is argued that the proposed FTT is highly unlikely to improve the functioning of the financial sector. Its motivations appear to be primarily political, as the Financial Activities Tax ('the FAT') would have been preferable on legal and economic grounds. The article identifies specific aims for financial sector reform. Thereafter, the traditional dominance of regulation in this field is questioned, and consequently the decision of the EU to adopt a tax instrument is embraced as a step to achieve a combination of regulatory instruments and corrective taxation. However, the decision to go forward with the FTT is criticized, as it appears unable to address the objectives for reform and is likely to adversely impact on financial markets and the prosperity of Europe.
The ECJ on State Aid and Loss Trafficking: A Missed Opportunity?
Authors: Post Dennis
Published: March 2022

On 18 July 2013, the European Court of Justice (ECJ) issued an interesting ruling (P Oy) on the Finnish rules for 'loss trafficking'. In particular, the ruling addresses the question whether the Finnish loss trafficking rules can be considered as either existing or new (presumed) State aid within the meaning of Article 108, paragraphs 1 and 3 of the Treaty on the Functioning of the European Union. In this article, the author discusses the P Oy ruling of the ECJ. Also, a generic overview on the rules for loss trafficking in the Member States in the European Union is provided for the analysis of the potential impact on the P Oy ruling on the loss trafficking rules in other Member States.
The Need to Prevent Abusive Practices and Fraud as a Composite Justification
Authors: Schaper Marcel G.H.
Published: March 2022

This article addresses the relations between justification grounds for direct tax restrictions on freedom of movement and the overlap of the technical requirements of their application as developed by the Court of Justice of the European Union (CJEU). The central point of this article is that the need to prevent abusive practices and fraud can be construed as a composite of the need to safeguard the balanced allocation of taxing powers and the need to ensure effective fiscal supervision. To support this argument, a legal analysis of the case law of the CJEU will be carried out that results in a legal inventory and review of the requirements for each imperative requirement. This article then shows how the requirements for those justifications coincide and the way in which these requirements derive from general principles of European Union (EU) law.
VAT on Private Use of Company Cars in Cross-Border Situations: Double or Non-taxation?
Authors: Merkx Madeleine
Published: March 2022

Because the Netherlands and Germany approach the taxation of private use of company cars for VAT differently this may result in double or non-taxation. Double taxation in case the employer is a Dutch entrepreneur and the employee lives in Germany. Nontaxation if the employer is a German entrepreneur and the employee lives in the Netherlands. In this article the author seeks the answer to the question which country applies the correct approach. Her conclusion is that the legislation in both countries needs adjustment.