Prohibition of Abuse of Law

A New General Principle of EU Law?

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Author: Rita de la Feria,Stefan Vogenauer

Publisher: Bloomsbury Publishing

ISBN: 1847316565

Category: Law

Page: 662

View: 4120

The Court of Justice has been alluding to 'abuse and abusive practices' for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation. In this book, academics and practitioners from all over Europe discuss the development of the Court's approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated 'principle of prohibition of abuse of law' for the development of the laws of the EU and those of the Member States.

Abuse of EU Law and Regulation of the Internal Market

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Author: Alexandre Saydé

Publisher: Bloomsbury Publishing

ISBN: 178225403X

Category: Law

Page: 496

View: 3288

How can the concept of abuse of European Union law ? which can be defined as undesirable choice of law artificially made by a private citizen ? generate so much disagreement among equally intelligent individuals? Seeking to transcend the classical debate between its supporters and adversaries, the present study submits that the concept of abuse of EU law is located on three major fault-lines of EU law, which accounts for the well-established controversies in the field. The first fault-line, which is common to all legal orders, opposes legal congruence (the tendency to yield equitable legal outcomes) to legal certainty (the tendency to yield predictable legal outcomes). Partisans of legal congruence tend to advocate the prohibition of abuses of law, whereas partisans of legal certainty tend to oppose it. The second fault-line is specific to EU law and divides two conceptions of the regulation of the internal market. If economic integration is conceived as the promotion of cross-border competition among private businesses (the paradigm of 'regulatory neutrality'), choices of law must be proscribed as abusive, for they distort business competition. But if economic integration is intended to promote competition among Member States (the paradigm of 'regulatory competition'), choices of law by EU citizens represent a desirable process of arbitrage among national laws. The third and final fault-line corresponds to the tension between two orientations of the economic constitution of the European Union, namely the fear of private power and the fear of public power. Those who fear private power most tend to endorse the prohibition of abuses of law, whereas those who fear public power most tend to reject it. Seen in this way, the concept of abuse of EU law offers a forum in which fundamental questions about the nature and function of EU law can be confronted and examined in a new light. In May 2013, the thesis that this book was based on won the First Edition of the European Law Faculties Association Award for Outstanding Doctoral Thesis.

Freedom of Establishment and Private International Law for Corporations

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Author: Paschalis Paschalidis

Publisher: OUP Oxford

ISBN: 0191638137

Category: Law

Page: 328

View: 4230

Freedom of establishment is one of the four fundamental freedoms of the European Union. The principle is that natural persons who are European Union Citizens, and legal entities formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the EU, may take up economic activity in any Member State in a stable and continuous form regardless of nationality or mode of incorporation. This book examines the way in which EU law has influenced how national courts in Europe assert jurisdiction in cross-border corporate disputes and insolvencies, and the mechanism which allows them to decide which national law should apply to the substance of the dispute. The book also considers the potential for EU Member States to compete for devising national corporate and insolvency legislation that will attract incorporations or insolvencies. Central to the book is the concept of national choice of law. In considering the impact of freedom of establishment on private international law for corporations, the book uniquely analyses both corporate and insolvency law together, presenting the topic in the broadest possible sense. Importantly, the doctrine of abuse in corporate and insolvency law is covered, raising the question of 'forum shopping' and regulatory competition which underpins the intersection between freedom of establishment and private international law. Through examination of the most recent and leading judgments of the European Court of Justice in Centros and Cadbury Schweppes, the book derives certain conclusions as to the operation of the doctrine of abuse and the limits thereof in the context of freedom of establishment. Being the first in the field to examine the leading ECJ cases of Inspire Art, Sevic and Cartesio regarding the real seat doctrine, the book makes the judgment that there is no incompatibility as such between the doctrine and the freedom of establishment. Ultimately, the book analyses to what extent diversity in the corporate and insolvency laws of the Member States should be preserved, so as to encourage competition between jurisdictions in Europe.

Research Handbook on the Economics of Corporate Law

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Author: Claire A. Hill,James L. Krusemark,Brett H. McDonnell,Solly Robbins

Publisher: Edward Elgar Publishing

ISBN: 1781005214

Category: Law

Page: 496

View: 6865

Comprising essays specially commissioned for the volume, leading scholars who have shaped the field of corporate law and governance explore and critique developments in this vibrant and expanding area and offer possible directions for future research. This important addition to the Research Handbooks in Law and Economics series provides insights into subjects such as the role of directors, shareholders, creditors and employees; empirical studies of litigation and shareholder activism; executive compensation; corporate gatekeepers; comparative law; and behavioral approaches to law and finance. Topics are organized within five sections: corporate constituencies, insider governance, gatekeepers, jurisdiction, and new theory. Taken as a whole, the volume serves as an introduction for those new to the field and as a reference for those unfamiliar with some of the topics discussed. Authoritative and accessible, the Research Handbook on the Economics of Corporate Law will be a valuable resource for students, scholars, and practitioners of corporate law and economics.

The Principle of Mutual Recognition in EU Law

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Author: Christine Janssens

Publisher: Oxford University Press

ISBN: 0199673039

Category: Law

Page: 358

View: 5389

Based on author's dissertation (doctoral)--Universiteit Antwerpen, 2011, under title: The Principle of Mutual Recognition in the EU Internal Market and the EU Criminal Justice Area

The Interface between Competition and the Internal Market

Market Separation under Article 102 TFEU

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Author: Vasiliki Brisimi

Publisher: Bloomsbury Publishing

ISBN: 1782254498

Category: Law

Page: 273

View: 7802

This book explores the interface between competition law and market integration in the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU), focusing on the notion of 'market separation'-namely conduct that may hinder cross-border trade. The discussion reviews, among other things, the treatment of geographic price discrimination and exclusionary abuse, by which out-of-state competitors are affected. 'Market separation' cases are treated in the book as a case study for appraising the interface between competition and the Internal Market. On this basis, the book provides a comparative analysis of the Treaty requirements under Article 102 TFEU when applied in 'market separation' cases and the Treaty requirements under the free movement provisions. In addition, it utilises 'market separation' cases as a springboard for advancing an informed reformulation of the application of Article 102 TFEU when state action comes into play. All in all, the analysis presented in the book deconstructs the elements for establishing 'market separation' as an abuse of the dominant position. It shows that there is nothing that would justify a distinctive treatment of 'market separation' under Article 102 TFEU, other than a principled understanding of Internal Market law as a whole: whatever understanding one reaches about the proper shape of the Internal Market, interrogation of the proper application of competition law comes after that and thus should be informed by this understanding.

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

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Author: Charles T. Kotuby, Jr.,Luke A. Sobota,Center for International Legal Education (CILE) University of Pittsburgh School of Law

Publisher: Oxford University Press

ISBN: 0190642726

Category: Law

Page: 288

View: 7133

Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars. The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years. General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.

General Principles of Law

European and Comparative Perspectives

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Author: Stefan Vogenauer,Stephen Weatherill

Publisher: Bloomsbury Publishing

ISBN: 1509910697

Category: Law

Page: 432

View: 330

Examining general principles of law provides one of the most instructive examples of the intersection between EU law and comparative law. This collection draws on the expertise of high-profile and distinguished scholars to provide a critical examination of this interaction. It shows how general principles of EU law need to be responsive to national laws. In addition, it is clear that the laws of the Member States have no choice but to be responsive to the general principles which are developed through EU law. Viewed through the perspective of proportionality, legal certainty, and fundamental rights, the dynamic relationship between the ingenuity of the Court of Justice, the legislative process and the process of Treaty revision is comprehensively illustrated.

Competition Law of the EU and UK

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Author: Sandra Marco Colino

Publisher: Oxford University Press

ISBN: 0199587329

Category: Law

Page: 476

View: 3448

This student-friendly and engaging textbook is an excellent introduction to competition law. With a comparative approach, it gives clarity to the differences and similarities between EU and UK systems. Providing up-to-date coverage of cases and legislative changes, it explains the fundamental economic concepts of this area of the law.

The Nation

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Author: N.A

Publisher: N.A

ISBN: N.A

Category: Current events

Page: N.A

View: 6184

European Economic Law

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Author: Hans-W. Micklitz,Stephen Weatherill

Publisher: Dartmouth Publishing Company

ISBN: 9781855215573

Category: Business & Economics

Page: 529

View: 4585

This book examines legal evolution in selected areas affected by the integrative process and provides the reader with relevant sources in European Economic Law. This book investigates the effect of European integration on law and the effect of law on European integration.

The Consistent Application of EU Competition Law

Substantive and Procedural Challenges

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Author: Adriana Almășan,Peter Whelan

Publisher: Springer

ISBN: 3319473824

Category: Law

Page: 285

View: 5999

In recent years, there has been a decentralisation of the enforcement of the EU competition law provisions, Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Consequently, the national application of these provisions has become increasingly more common across the European Union. This national application poses various challenges for those concerned about the consistent application of EU competition law. This edited collection provides an in-depth analysis of the most important limitations of, and the challenges concerning, the applicability of Articles 101 and 102 TFEU at national level. Divided into five parts, the book starts out by examining how the consistent enforcement of Articles 101 and 102 TFEU operates as a general EU competition policy. It then discusses several recent landmark cases of the European Court of Justice on Articles 101 and 102 TFEU, before proceeding to analyse certain additional, unique jurisdictional challenges to the uniform application of the EU competition law provisions. Subsequently, it focuses on one of the most important instruments that can help to achieve the uniform application of EU competition law in cases handled by the national courts: preliminary rulings. Finally, it provides selective examples of how Articles 101 and 102 TFEU are effectively applied at national level, thereby providing additional input into how problematic the issue of consistent application of EU competition law is in practice.

The Law and Economics of Article 102 TFEU

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Author: Robert O'Donoghue,A Jorge Padilla

Publisher: A&C Black

ISBN: 1782251413

Category: Law

Page: 1078

View: 8096

The Law and Economics of Article 102 TFEU is a comprehensive, integrated treatment of the legal and economic principles that underpin the application of Article 102 TFEU to the behaviour of dominant firms. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and unlawful discrimination are treated in detail through a review of the applicable economic principles, the case law and decisional practice and more recent economic and legal writings. In addition, the major constituent elements of Article 102 TFEU, such as market definition, dominance, effect on trade and applicable remedies are considered at length. Jointly authored by a lawyer and an economist, The Law and Economics of Article 102 TFEU contains an integrated approach to the legal and economic principles that frame policy in this major area of competition law. Although written primarily with practitioners and in-house lawyers in mind, it is essential reading for anyone with an interest in competition law enforcement against monopoly behaviour. Reviews of the First Edition: This is a truly outstanding book?With regard to many issues, the authors..achieve an analytical depth which is not even matched by many journal contributions dealing exclusively with those particular subjects?a truly seminal book on Article 82 EC that should and will have a major impact on the further development of this area of EC competition law. The book not only deserves to but certainly also will be widely read by academic and practising lawyers and economists concerned with abuse control. Thomas Eilmansberger Common Market Law Review Vol 44. No 4 Being the first book dedicated to this subject, The Law and Economics of Article 82 EC sets the benchmark very high for any followers?a comprehensive study that adopts a fresh method to the consideration of Art.82 EC?One of the strongest features is perhaps the fact that the economics discussion contains hardly any equations and thus is absolutely accessible to non-economists?The Law and Economics of Article 82 EC can be thought of as saving the reader from having recourse to two separate books by combining the law and economics of Art.82 EC in a coherent framework without leaving anything essential out?a seminal guide for all those interested in Art.82 EC. Pinar Akman The Journal of Business Law March 2007 The text is lucid and there is a wealth of references to economic and legal materials and explanations in careful and substantial footnotes. I found answers to many questions I had not even thought of asking. The work is critical as well as practical?A second edition will be demanded soon after the Commission publishes its intentions next year. This scholarly, practical and very substantial work is warmly welcome. Valentine Korah World Competition Law and Economics Review June 2007 ...this book is one of the best I have come across?the first to thoroughly integrate the economic and legal discussions into a single text?an essential book for any practice dealing in competition law. I would also suggest that it should find its way into university and vocational training law libraries where?a better overall understanding of Art.82 will accrue. Philip Allery European Competition Law Review 2007 This book is an admirable achievement, and the authors are to be congratulated on producing a work of high class and great interest. It is handsomely produced, easy to read, and comprehensive in its scope. Its publication now is timely, as we await the next stage of the Commission's review of Article 82?a first-rate piece of work that will be highly influential in the years ahead and that will be gratefully referred to by everyone interested in this fascinating but difficult topic. It is very highly recommended. Richard Whish Competition Policy International Journal Autumn 2006, Vol. 2, No. 2 La structure de l'ouvrage, qui analyse consécutivement les notions de définition de marché, de position dominante, les différents abus et leurs remà ̈des, est classique. Le contenu, en revanche, est engagé? O'Donoghue et Padilla font ?uvre de décomposition minutieuse et sans réel précédent du droit des pratiques unilatérales. Translation from the French :The structure of the book is classic. It analyses the concepts of definition of the market, of dominant position, of the various abuses and their remedies. The content, on the other hand, is highly original?O'Donoghue and Padilla engage in a searching analysis, one without any real precedent, of the law of unilateral practices. Simon Gen

Environmental Integration in Competition and Free-Movement Laws

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Author: Julian Nowag

Publisher: Oxford University Press

ISBN: 0191068292

Category: Law

Page: 250

View: 7627

Environmental Integration in Competition and Free-Movement Laws engages in a comprehensive analysis of the obligation of Article 11 TFEU (integration of environmental protection requirements) in the three core areas of EU internal market law: competition, state aid, and free movement. It develops a theoretical framework for integrating environmental and other policies and compares how environmental integration takes place within competition, state aid, and free movement law. In turn, it paves a way for a more transparent and consistent integration of environment protection in these three core areas of law. Structured in three parts, this volume (I) offers a detailed analysis of the historical development of environmental integration including discussions of the various intergovernmental conferences which led to a number of Treaty changes, shaping the obligation itself. (II) It investigates which provisions and concepts within competition law, state aid law, and the market freedoms can be interpreted in order to provide a clear demarcation of environmental protection and these areas of law. (III) It analyses how competition, state aid, and free movement law allow for a balancing of the environment against restrictions in cases of conflict.

The Encyclopaedia Britanica

A Dictionary of Arts, Sciences, and General Literature. Supplement

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Author: N.A

Publisher: N.A

ISBN: N.A

Category: Encyclopedias and dictionaries

Page: N.A

View: 3576

Stoddart's Encyclopaedia Americana

A Dictionary of Arts, Sciences, and General Literature, and Companion to the Encyclopaedia Britannica

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Author: N.A

Publisher: N.A

ISBN: N.A

Category: Encyclopedias and dictionaries

Page: N.A

View: 4691

EU Prospectus Law

New Perspectives on Regulatory Competition in Securities Markets

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Author: Pierre Schammo

Publisher: Cambridge University Press

ISBN: 1139496328

Category: Law

Page: N.A

View: 5583

Pierre Schammo provides a detailed analysis of EU prospectus law (and the 2010 amendments to the Prospectus Directive) and assesses the new rules governing the European Securities and Markets Authority, including the case law on the delegation of powers to regulatory agencies. In a departure from previous work on securities regulation, the focus is on EU decision-making in the securities field. He examines the EU's approach to prospectus disclosure enforcement and its implementation at Member State level and breaks new ground on regulatory competition in the securities field by providing a 'law-in-context' analysis of the negotiations of the Prospectus Directive.