Harmonization of Regulations on Beneficial Ownership in the European Union and Japan: a Comparative Legal Analysis and Implications for Global AML Effectiveness

The comparability analysis plays an important role in the Court of Justice of the European Union (CJEU)’s case law on the fundamental freedoms: if the situations examined are not objectively comparable, a violation of the fundamental freedoms is not possible. However, the CJEU does not follow a clear line in its decisions with regard to the comparability analysis, which makes it difficult to understand the decision-making process. Legal uncertainty is the result. In its last decision, Aures, in which the Court had to deal with a loss utilization rule, it exceptionally denied the comparability of the situations. Due to the increasing significance of losses in international tax law, the authors analyse the different methods of comparability analysis in cross-border loss utilization used by the CJEU and highlight the associated problematic areas. Comparability Analysis; Loss Utilization; Freedom of Establishment; Aures; Discrimination; Fundamental Freedoms; Double Tax Conventions; CJEU; Final Losses; Subject to tax

The interpretation of the concept of ‘beneficial ownership’ in the field of cross-border taxation is the subject of dispute among the international community. From 1977 onwards, a major question is how beneficial ownership should be defined for tax treaty purposes. After the concept of beneficial ownership was included in the EU’s Interest and Royalties Directives, the same question arose for the interpretation of the concept from an EU perspective. The authors examined both the Organisation for Economic Cooperation and Development (OECD) and EU concepts separately from a historical and teleological perspective and attempted to find common grounds for interpretation, especially after the Court of Justice of the EU (CJEU) judgment in the Danish cases. They conclude their research by suggesting potential ways forward for a better alignment of the OECD’s and EU’s interpretation of the beneficial ownership concept. Beneficial ownership, Interest and Royalties Directive, tax treaties, abuse, treaty interpretation, EU, OECD, interest, dividend, royalties.

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

In this work, I analyze the role of comparative law and comparative legal analysis in the area of intellectual property law. Because the protection of intellectual property rights is inextricably connected to international trade, intellectual property law is one of the most internationally and regionally harmonized fields of law, and has been so since the late nineteenth century. Comparative legal analysis has undoubtedly played an important role in this process of harmonization. Intellectual property scholars have traditionally engaged in comparative legal analysis in the areas related to intellectual property law across a variety of jurisdictions. Throughout their comparative scholarship, intellectual property scholars have facilitated the process of international and regional harmonization by clarifying the respective status of national laws, and at times by criticizing the desirability of the proposed international standards. Scholars have additionally engaged in comparative legal analysis to assess the consequences of the adoption of international standards into national laws. Still, despite the existing considerable tomes of comparative legal scholarship, the perceived importance attributed to comparative legal analysis seems to vary among legal scholars also in the area of intellectual property law similar to mainstream comparative law. This may be attributable to cultural or institutional differences among scholars in different countries. My analysis proceeds as follows. In Part II, I provide a general overview of comparative law and of the methodology (or rather the controversy surrounding the methodologies) of comparative legal analysis. Such an overview is in order, as comparative law has traditionally been an area of controversy where debates range from the very recognition of comparative law as an independent legal discipline to the type of methodology that comparative legal analysis should follow. Based upon this premise, I elaborate, in Part III, on the current role of comparative legal analysis in the specific area of intellectual property law. Due to the limited scope of this work, my analysis is not exhaustive. Notably, I emphasize that comparative legal analysis seems to be already a largely used research technique by scholars in this field consistent with the long tradition of international harmonization of intellectual property law. I note, however, that variation exists among intellectual property law scholars with respect to the importance of the role of comparative law and comparative legal analysis. More generally, I highlight the challenges that intellectual property law scholars face while conducting comparative legal analysis. These obstacles are the same obstacles that typically face comparative scholars in any field of legal study, and range from different theoretical frameworks to language barriers, cultural differences, and different national interests. Despite these recognized differences, I argue, such obstacles should not diminish the general benefits that comparative legal analysis can bring to the advancement of the study of intellectual property law (or any field of law) in every country.

he project “Human Rights and Border Policies: A Comparison of Serbia and Austria” (HURIBO) explores the complex relationship between border control and human rights protection, focusing on the practices of an EU Member State, Austria, and EU candidate country, Serbia, situated along a major migration route. In the context of increasing migration pressures and evolving border enforcement strategies, the project critically analyzes how international human rights standards, particularly those relating to non-refoulement, collective expulsion, and access to asylum, are implemented at national borders. Through a comparative legal analysis, HURIBO investigates the compliance of Serbia and Austria with international and EU human rights obligations, particularly in light of the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). Key activities during the first project year included participation in the international scientific conference “Law and Social Conflicts” at the Faculty of Law in Niš, a study visit to Austrian Institute for Human Rights by the Serbian research team. The project has strengthened academic cooperation between the Faculty of Law, University of Niš, and the Austrian Institute for Human Rights, University of Salzburg, laying down the groundwork for joint publication and policy recommendations.

Purpose - The purpose of this paper is to review the statutory framework and Court of Justice of the European Union (CJEU) case law concerning the extraordinary circumstances under EC 261/2004 Regulation (the Regulation). This paper also conducts an examination of the compensation liability system of air carriers within the context of Korean aviation transportation laws.
 Design/Methodology/Approach - This paper studies the scopes, application, and requirements of the extraordinary circumstances in EC 261/2004 Regulation by analyzing cases of CJEU. It seeks to conduct a detailed analysis of extraordinary circumstances in the Korean Aviation Business Act, and contains a comparative analysis between the Regulation and the stance of Korean law.
 Findings - This paper confirms that previous CJEU cases have taken a stringent and passive stance in recognizing extraordinary circumstances that exempt carriers from compensation liability. Also, it presents some critical views against CJEU perspectives and offers several implications for Korean law in its conclusion.
 Research Implications - This paper sheds light on legal issues surrounding applications of the extraordinary circumstances in EC 261/2004 Regulation via case law review. In conclusion, it emphasizes the need for amending the Regulation by explicitly specifying the criteria for the application of extraordinary circumstances to better ensure the appropriate fulfillment of air passenger rights protection. This suggests that it is essential to establish uniform legal standards for procedures related to compensation for air passengers in cases of denied boarding, flight cancellation, or flight delays, rather than solely relying on the flight compensation terms and conditions in Korea.

Focusing on the construction of exclusive rights under copyright and related rights, Chapter 5 shows how the application, by the Court of Justice of the European Union (CJEU), of the standards discussed in Chapter 2 has led to common approaches—and overall broad scope—of the rights harmonized under the InfoSoc Directive (reproduction, communication/making available to the public and distribution). The analysis considers, first, the right of reproduction of authors and other rightholders. Then the discussion moves on to review the right of communication/making available to the public having regard to its constitutive requirements, as well as its application to linking and internet platform operators. Insofar as the latter is concerned, an analysis is also undertaken of the nature of Article 17 of the DSM Directive. After that, the right of distribution—including the vexed issue of its exhaustion in a digital/online context and the now different treatment of software vis-à-vis InfoSoc works—is reviewed. Given the abundance of CJEU case law on database and software, the final part of this chapter also details relevant decisions in these areas.

By ratifying the Aarhus Convention in 2005 the EU committed itself to guaranteeing broad access to justice in environmental matters both at the national and the EU level. Yet, in spite of the clear-cut obligations incumbent upon the EU, EU courts have consistently rebuked pleas for a softening of the standing requirements in the context of direct actions against EU acts that might have an impact on the environment and/or public health. In addition, the internal review procedure set out by the 2006 Aarhus Regulation has been interpreted so restrictively by the EU institutions that that its added value in the stride toward better access to courts in environmental matters remains ephemeral at best. This led the General Court to finding that the Aarhus Regulation, by excluding general EU acts from the scope of internal review, was in breach of Article 9(3) of the Aarhus Convention. In its recent rulings of 13 January 2015, however, the Court of Justice of the EU (CJEU) overruled the General Court by holding that the Aarhus Regulation could not be reviewed in light of the Aarhus Convention. With its refusal to use Article 9(3) of the Aarhus Convention as a reference criterion for the purpose of reviewing the EU’s compliance with the Aarhus Convention’s obligations, the CJEU avoided tackling the unsatisfactory level of judicial protection in environmental cases at the EU level. This paper argues that the rulings of the CJEU are to be qualified as a significant step backwards for judicial protection in environmental matters at the EU level. It is established that, instead of addressing the current failings of the EU with respect to access to justice in environmental cases, the CJEU’s hands-off approach paves the way for yet another decade of non-compliance by the EU in the realm of access to justice in environmental cases.

This article analyses the role of comparative analysis in free movement judgments of the Court of Justice of the European Union (CJEU). It argues that comparative analysis plays an important role in how the CJEU decides the outcome of free movement cases and that free movement law should thus be characterised as a comparative law method. The argument is developed in three steps. First, comparative analysis takes place in all structural parts of free movement cases. It is not exclusively or even primarily limited to the proportionality test. Second, the role of comparative analysis is directly linked to the effective application of the free movement provisions. This means that comparative analysis is not only relied on to engage in standard-setting (‘calibration’) in free movement cases—it is also used to determine which cases should fall within the scope of application of the free movement provisions (‘demarcation’). Third, because of the close relationship between comparative analysis and the effective application of the free movement provisions, it is possible to characterise negative integration as a comparative law method. Although one component of this method is based on the traditional functional method in comparative law, the main comparative method in free movement law is closely linked to cosmopolitan pluralism, because negative integration provides a ‘frame’ or structure through which Member States are required to investigate and respond to the national laws of other Member States. This method can be described as ‘the law of differentiation’, because it identifies, analyses the extent and assesses the legitimacy of differences in national laws in the context of the internal market.

Chapter 2 focuses on the standards that the Court of Justice of the European Union (CJEU) has employed in its case law. It selects and illustrates the content of the policies and principles that the CJEU has used to develop its own understanding of EU copyright directives. The analysis thus considers general and special standards, the former being standards that the Court has applied transversally to different areas of copyright and the latter being relevant to specific areas, eg exclusive rights or exceptions and limitations. General standards include: guarantee of a high level of protection; the need to interpret certain concepts as autonomous concepts of EU law; effectiveness; proportionality; fair balance of different rights and interests; the requirement to interpret provisions in relevant directives in light of their wording and context, as well as the objectives pursed by the directive in question; and interpretation of relevant provisions in light of fundamental rights as also protected in the EU Charter. Special standards include the requirement of interpreting exclusive rights as having preventive nature and exceptions and limitations strictly. The second part of this chapter contains a statistical analysis referred to as ‘data-based case law’ (DBCL). Its main objective is to illustrate relations and correlations between the various standards employed in CJEU case law, considered in pairs. The DBCL may also serve to anticipate types of standards likely to be employed in relation to different areas of copyright in future cases.

On 19 December 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in Case C-65/23, MK v. K GmbH, addressing the processing of employees’ personal data. The decision focuses on the interpretation of Article 88 of the General Data Protection Regulation (GDPR), which allows Member States to adopt ‘more specific rules’ for employment-related data processing, and its interaction with the general principles and requirements of the GDPR, including those in Articles 5, 6, and 9. The judgment clarifies that any national rules or collective agreements adopted under Article 88 must comply not only with the safeguards outlined in Article 88(2) but also with the broader GDPR framework, particularly the principles of necessity, transparency, and proportionality. The CJEU further ruled that while parties to collective agreements may have a margin of discretion in determining the necessity of data processing, this discretion is subject to full judicial review to ensure compliance with GDPR standards. The judgment underscores the importance of maintaining a high level of protection for employees’ personal data and reaffirms the primacy of GDPR principles over national or sector-specific rules.

This Article offers a first comparative analysis of the evolution of U.S. corporate personhood doctrine and the “freedom to conduct a business” under Article 16 of the EU Charter of Fundamental Rights. It argues that, over the past fifty years, the Supreme Court of the United States (SCOTUS) and the Court of Justice of the European Union (CJEU) have both contributed to the rise of neoliberalism by using these legal doctrines to shield market mechanisms from democratic intervention. While SCOTUS has expanded and deepened corporate personhood, granting new and more powerful protections under free speech and religious freedom to corporations, the CJEU has similarly interpreted the “freedom to conduct a business” to weaken labor protections and different market regulations. This unexpected convergence contrasts with the CJEU’s ostensibly social mission and underscores the dangers of an uncritical expansion of Article 16. But despite this shared goal, this Article highlights the divergence in the approaches of SCOTUS and the CJEU through insights from comparative political economy. Differences in legal mobilization, the role of courts in political disputes, and the political economy of industrial relations have shaped each doctrine’s development. These findings are useful for legal reformers developing different strategies to curb corporate power in both jurisdictions.

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, in particular given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction.The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe.

What role does the Court of Justice of the European Union (CJEU) play in holding European Union (EU) regulatory science, ie the science underpinning public regulation, to account for its epistemic quality? Since Pfizer, CJEU case law has strengthened the role of science in both EU risk regulation and litigation, whilst intensifying judicial scrutiny of scientific reasoning based on procedural standards. Scholars often welcome this approach as striking an adequate balance between effective judicial protection and institutional competence. Some praise the Court as an ‘information catalyst’ promoting procedures, in which epistemic quality is ensured through diligent consideration of and deliberation among all relevant voices. These debates, however, overlook the role of economic actors as information providers, in and challengers of EU risk regulation. This paper re-evaluates the modern post-Pfizer approach from a new, socio-legal perspective by studying, for the first time, the interactions between judicial review and the epistemic power of economic actors, ie their relative ability to influence what EU regulators know at the expense of other actors. We combine an epistemologically informed comparative institutional analysis with doctrinal critique of CJEU case law. Our findings show the need to rethink both legal standing and procedural review in EU risk regulation. Instead of catalysing inclusive procedures that open regulatory science to public scrutiny, the modern approach fosters an exclusive bilateral information exchange between the administration and the regulated industry. The Court reduces the function of process values, such as duty of care and reason-giving, to the protection of a small circle of actors, neglecting the public interest dimension of such values. Thus, the modern approach fails to address, and instead further entrenches the epistemic power imbalances inherent in EU risk regulation. We end by sketching out a normative and doctrinally sound vision of how CJEU review could contribute to EU expert accountability in a more publicly oriented way.

A social progress protocol has been suggested and demanded as a way of strengthening the protection of fundamental social rights in the EU Treaties. The jurisprudence of the Court of Justice of the European Union (CJEU) in the Viking and Laval cases provided the impetus for this suggestion. The financial and economic crisis has increased the need for discussion, clarification and development of fundamental values, principles and rules of EU social policy. In light of the crisis, a social protocol should be designed in a comprehensive way. It should reinforce the position of human rights and it should define the model of the European social market economy. A high level of social protection should be stipulated. The draft of the European Trade Union Confederation (ETUC) is an adequate starting point, however, in light of the recent economic and social development a more comprehensive protocol is necessary. Given the different national traditions of social policy, a social protocol needs broad legal and political discussion in order to build the necessary consensus.