The Application of Art. 31 of Regulation (EU) 2015/848 to Cross-Border Triangular Payments. A Critical Appraisal, a Comment on the Van Buggenhout Case (C‑251/12) and a Proposal for a Better Regulation

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Why are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’.The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.

Why are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’. The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.

Why are there Advocates General in the Court of Justice of the European Union? A standard answer to this question is likely to be either a simple textual reference (because the Treaty provides for them); or an appeal to authority (because the original framers of the Treaties put them there, inspired by the French legal system); or a rather pragmatic appeal to their on-going utility (because they assist the Court and they do a great job); or any combination of these three. All of these explanations are valid. This contribution, however, attempts to go a little deeper in discerning what may be the ideological justification for Advocates General in the Court of Justice. It does so by carrying out a historical and comparative study concerning their origins and systemic justification from the vantage point of a national lawyer coming from a Member State that does not know any type of a ‘fourth in the court’. The first part of the contribution explains which factors have considerably eroded the position of Advocates General in the course of the last decade and why questions concerning their role and its justification became topical. Second, the commonly invoked reference to the French inspiration for introducing Advocates General is critically examined. It is suggested that justifications once provided with respect to the office of commissaire du gouvernement in the Conseil d’État can hardly be used on the European level with respect to Advocates General. Third, possibilities of internal justification of the role of Advocates General are examined: are Advocates General providing any unique assistance to the Court of Justice, which could not be provided for in different ways? With a negative answer to the latter question, the last part of the argument offers a simple yet solid overreaching justification as to why there should be Advocates General in the Court of Justice.

A short few days in September 2020 saw an extraordinary turn of events. The Member States of the European Union used the withdrawal of a Member State from the European Union (EU) as a pretext to dismiss a sitting Advocate General (AG) of the Court of Justice of the European Union (CJEU) before the expiration of the duration of her mandate provided for in primary law. The Member States replaced her with another nominee in the absence of a vacancy. This occurred in direct violation of EU primary law, including the cardinal principles of security of tenure and judicial independence. The CJEU had the opportunity to prevent this from occurring; yet did absolutely nothing to prevent it. Instead, the CJEU went out of its way to facilitate the appointment of Mr. Athanasios Rantos in place of AG Eleanor Sharpston. The drama in Three Acts, involving numerous elements – hints of lawlessness; signs of complicity between the Member States and the CJEU; confirmation of the lack of structural independence of the CJEU – has ultimately raised doubts whether the CJEU is legally composed. These September 2020 developments resulted in the dismissal of a member of the Court that the Member States did not want, no matter what the law said. In this article, these cumulative events are analyzed systematically through a legal lens, regrettably confirming a startling omission in the EU legal order – that the EU lacks a structurally independent court of law sitting at its apex, and that the EU legal system is not immune to ultra vires Member State interventions. Notwithstanding these developments and a severe pounding to the credibility of the CJEU, there remains a possibility for this deficiency in the EU legal order to be rectified. The CJEU will have to state at some future juncture that decisions within the sphere of Article 253 TFEU are subject to judicial review for procedural irregularities, thus ensuring that the EU is truly a complete system of legal remedies and procedures. In the meantime, questions do linger about the lawful composition of the CJEU with the position of ‘AG’ Rantos in situ, which the CJEU should and must address.

The present study aimed to shed a light on commercial and civil insolvency under the provisions of the Jordanian insolvency law No. 21 of 2018. It aimed to explore the meaning and procedures of insolvency under the latter law. Under the latter law, the commercial insolvency is governed by the provisions of the insolvent debtor. Under the latter law, there are two types only of insolvency; imminent and actual insolvency. Under the latter law, the ones entitled to lodge an insolvency petition are: the creditor, debtor and the officer acting on behalf of the companies control department. Contrary to that, under the repealed provisions of the Jordanian commercial law, the ones entitled to lodge a bankruptcy petition are: the creditor, debtor, the court, and the public prosecution department. Several recommendations are suggested. For instance, the researcher recommends adjusting the criteria adopted by the Jordanian legislator for identifying the ones considered insolvent debtors to include more categories. Such criteria must include greater categories, such as: banks and insurance companies. He also recommends adjusting the latter criteria in order to exclude the ones who do not meet such criteria. He recommends authorizing the court to declare the insolvent debtor by itself as officially insolvent. He believes that such a power mustn’t be limited to debtors, creditors and the officer acting on behalf of the companies control department only. He recommends granting the power of lodging an insolvency petition to the court and the public prosecution department.

This paper investigates whether members of the European Court of Justice (ECJ), as is often assumed, behave in accordance with legalistic models of judge behavior. So far, different from courts in the U.S. And elsewhere, there is no conclusive evidence that the background of individual judges influence the decision-making of the Court. There are two possible explanations for this. First, it seems possible that the unique institutional culture at the Court has created an environment which minimizes the influence of such factors. Second, it seems possible that these effects exist, but that they have so far gone largely unnoticed, because the non-disclosure of individual votes and non-random case assignment pose great challenges to any attempt to identify them. This paper focuses on the impact of the political preferences of Member State governments on the decision-making of the Advocates General, who are judge-like members of the ECJ. I develop a formal test to answer whether a relationship exists between the policy preferences of EU Member State governments with regard to European integration, and the decision behavior of Advocates General appointed by these governments. This test formalizes the intuition that, if one Advocate General shows a high probability of deviating from a certain chamber in an integration-friendly direction, while another Advocate General shows a high probability of deviating in an integration-critical direction from decisions by the same chamber, one can infer that the decision standard applied by the first Advocate General is more integration-friendly than that of the second Advocate General. I find that Advocates General appointed by governments with prointegration preferences are on average more likely to deviate from the Court in a pro-integration direction.

The question whether political preferences of EU Member States play a role in the decision-making of the members of the European Court of Justice (ECJ) has so far gone largely unanswered in the literature. This paper formally tests the hypothesis that the political preferences of Member State governments are reflected in the decisions of the Advocates General, who are judge-like members of the ECJ. The empirical analysis is motivated by a novel model of the interaction between the Advocate General and the judicial panel. Based on this model, the paper develops a formal test to answer whether there is a relationship between the policy preferences of EU Member State governments with regard to European integration and the decision behavior of Advocates General appointed by these governments. It then tests this hypothesis using a newly assembled dataset combining information on agreements and disagreements between the opinions issued by the Advocates General and the ensuing judgments of the ECJ in preliminary ruling proceedings with information on political preferences of Member State governments obtained from party manifesto data. The results of this test suggest that the votes of Advocates General reflect the political preferences of the appointing governmentsvis-à-visEuropean integration.

Brüstle Decision Is Unhelpful, but Not Catastrophic

The Advocate General (AG) has been a permanent feature of the European Union judicial order since 1957. From two Advocates General (AGs) in a Community of six Member States and Court of seven judges, their number has risen to eight in a Union of 27 Member States, three courts and 61 judges. Their task under the Treaty has remained the same, as has their mode of recruitment. The Lisbon Treaty has, however, assigned a new task to the collective judiciary of the Union—under Article 13 TEU, it is to ‘serve’ the citizens of the EU. What does this mean, and in particular what does it mean for the AG—has the task of these non-decision making officers also changed? This chapter suggests that the objective of this new duty is to manufacture trust in the Court of Justice and argues that this requires more transparency at the CJEU and thus a new role for the Advocate General.

The Advocate General (AG) has been a permanent feature of the European Union judicial order since 1957. From two Advocates General (AGs) in a Community of six Member States and Court of seven judges, their number has risen to eight in a Union of 27 Member States, three courts and 61 judges. Their task under the Treaty has remained the same, as has their mode of recruitment. The Lisbon Treaty has, however, assigned a new task to the collective judiciary of the Union—under Article 13 TEU, it is to ‘serve’ the citizens of the EU. What does this mean, and in particular what does it mean for the AG—has the task of these non-decision making officers also changed? This chapter suggests that the objective of this new duty is to manufacture trust in the Court of Justice and argues that this requires more transparency at the CJEU and thus a new role for the Advocate General.

The judgment of the European Court of Justice in Eurofood IFSC Ltd., C-341/04, explores several key provisions of the European Insolvency Regulation (Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings), notably Articles 3(1), 16(1) and 26. The Court interpreted Article 3(1) on the basis of Recital 13 and held that the presumption whereby the centre of main interests (COMI) of a company is situated in the Member State where its registered office is situated can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which locating at that registered office is deemed to reflect. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption. In this context the Court reminded the national courts that it is inherent in the principle of mutual trust that the court of a Member State hearing an application for the opening of main insolvency proceedings checks that it has jurisdiction having regard to Article 3(1), i.e. examines whether the COMI is situated in that Member State. On Article 16(1) the Court held the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State. The Court gave an autonomous interpretation to the words “judgment opening insolvency proceedings” in Article 16(1) as meaning every decision handed down by a court of a Member State, based on the debtor's insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation, irrespective of whether that decision was regarded as “opening” the insolvency proceedings under the national law. Finally, the Court held that under Article 26 a Member State may refuse to recognise insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned by such proceedings enjoys. The article gives a critical assessment of the decision, noting in particular the dangers of allowing Member States to open insolvency proceedings on the basis of ex parte applications for provisional measures.

This chapter asks whether the Advocates General have been instrumental in persuading the Court to interpret the citizenship provisions of the Treaty in a more radical way than previously thought possible. Or, have the Advocates General sought to act as a restraining influence, reminding the Court of the difficult genesis of these provisions and the reluctance of Member States to agree to any but the most skeletal of provisions? The chapter examines some cases in which the Court was asked to interpret Articles 17 and 18 EC3, seeking to examine what influence Advocates General had on the Court. It argues that it is possible for an Advocate General to have a major impact on the thinking of the Court in a particular area of Community law. It concludes the Advocate General can assist the Court best when he is able to take existing authorities and apply them logically, clearly and succinctly to the questions referred to the Court by the national judge.

The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.

South African Insolvency law provides for voluntary surrender and compulsory sequestration. The Insolvency Act requires the insolvent debtor to satisfy the court that sequestration will be to the advantage of his or her creditors. Many insolvent debtors face a challenge to prove advantage of creditors as they do not have sufficient assets in their estates. For a creditor to succeed in sequestrating the insolvent estate, he or she must obtain both provisional and final sequestration orders. In granting a provisional sequestration order, the court must be of the opinion that prima facie there is reason to believe that it will be to the advantage of creditors of the debtor if his or her estate is sequestrated. Concerning a final sequestration order, the sequestrating creditor must satisfy the court that there is reason to believe that it will be to the advantage of the creditors of the debtor if his or her estate is sequestrated. The court has a duty to carefully scrutinise friendly sequestrations in order to protect the interest of creditors. At least the court must be satisfied that there are assets for the creditors to obtain a not negligible dividend. Even if there are no assets, the court can still grant the sequestration order, as the investigation and interrogation provided under Insolvency Act may reveal some assets. Poor debtors do not obtain sequestration orders as they cannot prove advantage to creditors if their estates are sequestrated. Society should assist individuals who use their talents and create jobs, even if they fail in the process. It is recommended that advantage to creditors should not be a requirement for sequestration. DOI: 10.5901/mjss.2013.v4n13p19