Broad Scope, Restrained Scrutiny: Interpreting Article 19(2) TEU

Since the establishment of the European Union, Member States do not have true free reign over their legislative activity. The influence from ‘Brussels’ on new national laws has become stronger with the passage of time. Over the years, the Contracting States and the Union legislature have established more and more obligations referring to national legislatures. The most common are the well-known duties to transpose directives into national law. These EU legal acts contain substantive law, rights and/or obligations for individuals, and thus encompass material provisions that can be subject to a transposition process. However, this is not the only way to influence national legal orders. There are also procedural obligations in EU law that do not contain any substantive requirements that national laws ought to foresee. This article deals with the kind of formal obligations that compel Member States to consult EU institutions on draft laws during their national legislative procedures (hereinafter: obligations to consult). These obligations are of a procedural nature, with the outcome of the consultation procedure resulting in substantive law. EU law has always contained provisions like the obligations of Member States to consult EU institutions on their own national legislative procedures. In this regard, EU law shapes national legislative procedures, and the EU institutions influence substantive national law. EU institutions have expertise concerning the impact of new national laws on the internal market, which they can estimate on a Europe-wide scale. A single Member State or its institutions cannot examine the effects of national law on other Member States’ legal orders or on Europe as a whole. That is why it is dependent on the know-how of EU institutions. Their expertise and ability to assess the Europe-wide effect of national law makes up the background of the great impact of those institutions on national draft laws. This article analyses the impact and possible consequences of a Member State’s violations of obligations to consult. It introduces new terms, such as obligations to consult EU institutions on national draft laws and the consultation act, that are necessary in order to reflect the great importance of this category. General comments on obligations to consult refer also to the new mechanism introduced by the Two-Pack Regulation.

Restitution is not referred to directly in the Treaties. The Court of Justice has nonetheless spoken of ‘unjustified enrichment giving rise to restitution’ since the early days of the Coal and Steel Community, and both the Court of Justice and the Court of First Instance—now the General Court—have referred to ‘unjustly enriching the Community contrary to the general principles of Community law’ or to this general principle in similar terms. Perhaps most typically, restitution claims arise when either a Member State via national law or the European Union via secondary legislation levies illegal charges (collected by the Member State), although they are also common in, inter alia, staff cases. In the first kinds of situations, where the claims are made against the Member State, the Court has, from the ruling in San Giorgio on, expressly linked restitution to rights under Union law, by holding that:

Problem setting. The Court of the European Union is a central term, which characterizes the entire court system of the European Union, which, without a doubt, includes three lanes: the Court of Justice, the Zagalny Court and special judges. Such an institute is aimed at accepting new acts of legal form and legal significance, and the very decision, the decision of the institution. The acceptance of such acts is a manifestation of the implementation of the judicial competence of the named institution, however, the link with the system is determined by the following: which may be the reason for the nature of precedent practice; both the established stench for the use of the Court itself by the Court of Justice itself, as well as by the other institutions, which have been approved by Article 13 of the Treaty on the European Union; what is the decision of the Court EU norms of law EU. Analysis of the meaningful nutrition is the subject of a complete dosage. Analysis of recent researches and publications. The legal meaning of the decision to the Court of the European Union and the possibility of implementing such decisions before the legislation of Ukraine. Target of research is to examine the status of decisions of the Court of Justice of the European Union as a precedent. Article’s main body. The research is devoted to the analysis of the legal significance of the decisions of the Court of Justice of the European Union on the application of acts of the legislation of the Energy Community in the field of energy by the courts of Ukraine in resolving relevant disputes. It is noted that the Court of Justice of the EU is a judicial institution of another legal order, an international organization – the European Union, whose practice is fundamental to the development of the rule of law in the European Union. However, it is stated that the national courts of the EU member states are tasked with the daily application of EU law in accordance with the principles of supremacy, direct action and responsibility of member states for compliance with EU law. It is established that the legal basis for the functioning of the electricity market is the Constitution of Ukraine, special laws, international treaties of Ukraine, approved by the Verkhovna Rada of Ukraine, and other legislation of Ukraine, according to which the subjects of power and courts In applying the provisions of this Law, the law enforcement practice of the Energy Community and the European Union shall be taken into account, in particular decisions of the Court of Justice of the European Union (European Court of Justice, General Court), the European Commission and the Energy Community Secretariat. Conclusions and prospects for the development. A systematic analysis of the norms of national and international law allows us to conclude that the provisions of the Association Agreement between Ukraine and the EU are part of the national legislation of Ukraine, its provisions are mandatory and binding throughout Ukraine. Therefore, the case law of the Court of Justice of the European Union is applicable to the courts of Ukraine in resolving disputes concerning the application of energy legislation in the field of energy by other member states in full in the same manner as for the application of European Court of Human Rights.

The European Private Company (SPE): Uniformity, Flexibility, Competition and the Persistence of National Laws

This chapter seeks to make a modest contribution to analytical thought on interplay between, on one hand, Member States' (MS') policy objectives regarding status of non-European Union (EU) migrants and evolution of MS' nationality Law; and, on other, principles underlying MS' nationality Law and its compatibility with a reconceptualised EU citizenship. It discusses two principles of nationality law: principle of nationality restitution and that of immigrants' integration. The principle of immigrant integration is aimed at facilitating immigrants' access to naturalization and at finding formulas for granting nationality to second generations of immigrants so as to contribute to their integration into national/ EU society. In Davies' view, since Rottmann several aspects of national citizenship come under authority of Court of Justice; the Court has announced that it is now supreme adjudicator on acceptable content of national citizenship law. Keywords: European Union (EU) citizenship; immigrant integration; Member States (MS') nationality; nationality restitution

The Shareholderss Duty Not to Abuse Rights

With its judgment in Engie, the CJEU has annulled yet another Commission decision on the state aid compatibility of Member States’ tax rulings. The Grand Chamber found that the Commission and the General Court had incorrectly identified the reference system of taxation made up of the ordinarily applicable national law of Luxembourg. When it comes to the interpretation of national law in the state aid procedure, the interpretation provided by the Member State is generally decisive. A high evidentiary threshold applies if the Commission wants to depart from this interpretation. This holds all the more true for Member States’ General Anti-Abuse Rules (GAARs), which are by their very nature general. The judgment could have wide-reaching implications for the enforcement of state aid law by the Commission regarding all types of cases where the interpretation of national law is not altogether clear. For example, the interpretation of national law is a key point in the UK Controlled Foreign Company (CFC) case, which is why AG Medina in her conclusions draws heavily on the Engie judgment. As a result, the Commission will probably lose the UK CFC case.

The hierarchical theory of norms, which is attributed to Kelsen and his pupil Merkl, states that all legal orders share the same, pyramid like structure, with constitutional law on top and individual legal acts on the bottom. Merkl differentiates two basic hierarchical structure models – hierarchy according to the conditions of law-making and hierarchy according to the derogatory power. In the international law theory, Kelsen preferred monism to explain the relationship between national and international law as opposed to dualism. Yet, when confronted with the hierarchical theory, dualism appears to be the better fit, since national and interna- tional law arise from different sources and even though they are certainly connected in many ways, neither has direct derogatory power over the other, nor constitutes a direct condition of the existence or applicability of the other. However, the above cannot be used to explain the relationship between European and national law – upon viewing the relationship from the hierarchical theory point of view, we come to the conclusion that even though European and national law are not part of the same hierarchical structure according to the conditions of law making, European law has the superior position in the hierarchy according to the derogatory power. This unique position is further supported by the fact that European law is primarily applied by the member states and their bodies, which gives the member states’ courts a certain measure of control. The hierarchical theory therefore proves that European law does truly represent ‘a new legal order of international law’, as the European Court of Justice states.

One of the cornerstones of the rule of law is an independent, impartial, and high-quality court. It is therefore of the utmost importance that respect for the rule of law in the European Union (inclusive of its member states) be ensured by a court whose members are themselves elected in accordance with the rule of law. This means that, just as for the courts of the Member States, the ideal – which one would hope gets reflected in real-world practice in most cases – is for the Court of Justice of the European Union to be led by independent and impartial judges. Judges who are not only well-versed in their own national law but also fluent in the nuances of European Union law, are oriented toward the global legal world, display an ability to work in an international environment (encompassing several languages, most importantly French as the working language of said court), have an outstanding record of professional and scientific excellence, express themselves clearly and convincingly (both verbally and in writing), and possess impeccable moral and ethical integrity – in short, individuals who are unquestionably leaders in their field and role models for other judges. Indeed, Article 253 (1) of the Treaty on the Functioning of the European Union (TFEU) specifies that the Court of Justice’s judges and Advocates General shall be chosen from among persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are lawyers of recognised competence, with appointment by common accord of the governments of the Member States for a term of six years after consulting with the panel provided for by Article 255 TFEU. Membership of the institution’s General Court is similarly regulated. Accordingly, Europe is looking for super-judges and super-Advocates General for the Court of Justice of the European Union. The article gives an overview of the process involved, focusing in particular on the work of the so-called Article 255 panel.

The European Union (EU) is currently based on two treaties setting out its primary law: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Court of Justice of the European Union was established in 1952. It is the highest judicial authority of the European Union. It has its seat in Luxembourg and consists of three courts: the Court of Justice (CJEU), the General Court (GC), and the Civil Service Tribunal. The CJEU is composed of one Judge per Member State and eight Advocates General. The GC is also made up of at least one Judge from each Member State. Their appointment procedure and terms of office are similar to the Judges of the CJEU. The Civil Service Tribunal is composed of seven Judges appointed by the Council of the Union for a period of six years which may be renewed. Keywords:Civil Service Tribunal; Court of Justice (CJEU); European Union (EU); General Court (GC); Luxembourg

Subject. The principles of subsidiarity proportionality, which serve as the basic principles fordetermining the competence of integration associations, are considered in the article.Aim. The aim of this paper is to analyse the place and the importance of Member States’ obligationsderiving from the EU legal order in order to address the relationships between EU lawand national tax law, as well as to analyse the practice of using of principles of subsidiarity andproportionality by the highest courts of the Russian Federation as a federal state.Methodology. The author uses methods of theoretical analysis, particularly the theory ofintegrative legal consciousness, as well as legal methods, including formal legal method andcomparative law.Results, scope. The exercise of power by the European Union in the areas of shared competencemust respect the principle of subsidiarity. The founding Treaties make clear thatsubsidiarity is a legal enforceable legal principle. However. the case law of the EuropeanCourt of Justice reveals that the enforcement of subsidiarity as a judicial principle has beenineffective.The article examines cross-border loss relief for group companies in the context of EuropeanUnion law and considers how this has affected Member States such as the UK. Thecase law of the Court of Justice is then analysed in an attempt to assess whether some ofthe principles set out in these legislative initiatives found their way to Member State lawsthrough the Court's jurisprudence. Following this, the judicial and legislative response tothe Marks & Spencer judgment in the UK are critically assessed.The practical suggestions are looking at developing EU compatible tax principles to be appliedto cross-border taxation within the EU.Having considered the principles of subsidiarity and proportionality in the context of interactionbetween integration and national tax law, the author suggests directions for improvingthe practice of integration tax law. The supranational judicial authority should dwell onthe position that only those differences that are directly based on the origin of the incomeor nationality of the taxpayer can be justified on the basis of restrictions on fundamentalfreedoms.Conclusions. The author comes to the conclusion that a co-ordinated approach to crossborder tax is essential. The effectiveness of integration tax law will largely depend on how the ratio of the norms of integration and national law in the tax jurisdiction of the Union and member states will be formed. However, historically direct tax has been viewed by Member States as central to national sovereignty.

This article examines the current regulation of branches of foreign companies in Union law and in the laws of five Member States. First there is an examination of how the Member States regulate when foreign companies can and must register a branch, and it is shown that the lack of a definition of a ‘branch’ makes it very difficult to implement the Directive correctly and without infringing primary EU law. Next the disclosure requirements of the Directive are examined, and it is concluded that the Eleventh Company Law Directive sets fairly clear standards, so that on this point – with few exceptions – national law seems to implement the Directive correctly. The final part of the article focuses of the regulation of selected areas of the substantive regulation of branches, including the regulation of branch management, accounting documents, bookkeeping, capital requirements and branch names. It is shown that in regulating these topics national company law very often restricts the right of establishment, so it is necessary to test whether the national rules can be justified. This is often very difficult to evaluate and consequently it seems that the right of establishment is often infringed. Another consequence of this uncertainty is that national law on these issues often differs between Member States. To overcome these differences and to offer the Member States better guidelines on how to apply EU law, it may be desirable to extend the harmonisation of the law on branches of foreign companies to cover some of these substantive issues.

Branches of Companies in the EU: Balancing the Eleventh Company Law Directive, National Company Law and the Right of Establishment

National law is affected by a number of different international regulations and agreements. International agreements provide for rules aimed at harmonizing certain requirements and understandings that different countries should follow. In labour relations, international standards are set at two different levels – on the one hand, by the International Labour Organization (ILO), and on the other by regional standards – by the Council of Europe and the directives and regulations adopted by the European Union. All these international rules have important implications for national labour law. However, such international norms do not provide a clear personal scope – that is, it is not clearly defined to whom such international norms apply. Although the various international rules do not directly define the persons to whom those norms apply, – the implementation of international rules remains a matter for national law. Thus, the concept of both employee and employment relationship is shaped by national law. The exception here is the European Union, where the European Court of Justice has given an autonomous meaning to the concept of worker (particularly in the context of freedom of movement for workers). Although the concept of a worker and of an employment relationship has been developed by the Court of Justice of the European Union, Member States retain the right to define the employment relationship in accordance with the law in force in the respective Member State. The main factor in shaping employment relationships is the employee's dependence on the person providing the work, and the person providing the work also has an obligation to pay remuneration for the work performed. Although the scope of those rules is defined differently by different international rules, the characteristics generally applicable to the definition of an employee and the employment relationship are similar to those used in national law.

The issue of whether and to what extent the law of copyright should provide exemptions in order to facilitate access to published works by the blind, visually impaired and print disabled is complex and emotive, integrating a variety of areas of law, most notably intellectual property and human rights law. The issue has recently been debated on the international stage in the drawing up of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (WIPO Doc VIP/DC/8, hereinafter: the Marrakesh Treaty). The Treaty aims to facilitate the availability of published works in accessible format copies by requiring Member States to provide a limitation or exception in their national copyright laws permitting authorized entities to reproduce a published work in an accessible format, and distribute it without the authorization of the copyright holder to persons who are blind, visually impaired or experiencing other print disabilities. However, the journey to passing the Marrakesh Treaty was by no means linear and involved the expression of often divergent views by the member countries in the international context. This divergence of opinion is reflected in the vastly varying levels of support for related copyright exceptions and limitations provided in the laws of nations around the world. The Marrakesh Treaty was adopted at the World Intellectual Property Organization (WIPO) diplomatic conference on 27 June 2013. It is, however, pertinent to note that this treaty will not enter into force until it has received 20 ratifications (Art. 18.). As attention now moves to ratification and implementation of the treaty by Member States, it will be useful to examine the nature of the gap that presently exists between national laws and the standards required by the treaty, and to thereby evaluate whether and to what extent the provisions of the treaty are likely to be implemented in the domestic laws of the Member States. To this end, this article begins by providing a global overview of the copyright exemptions presently in operation in various nations. Thereafter, some specific issues concerning the treaties reflected in the drafts proposed by different countries will be discussed. These issues will be the subject of the first two parts of the discussion. The third part outlines the ambit of the Marrakesh Treaty and points out issues needing further clarification. The conclusion analyzes the prospects of final ratification by reference to the willingness of Member States to adapt their national copyright laws to the Marrakesh Treaty – a willingness that may be indicated by their current legal practices and their contributions to the treaty.