Cross-border Situations Research Articles

Atypical work and residence in cross-border situations: The coordination of unemployment benefits

Atypical work and residence in cross-border situations: The coordination of unemployment benefits

Evaluating Preparedness and Overcoming Challenges in Electricity Trading: An In-Depth Analysis Using the Analytic Hierarchy Process and a Case Study Exploration

The economy of South Asia is experiencing growth, yet it faces constraints due to heavy reliance on fossil fuels and frequent power outages. Access to diverse energy sources, particularly electricity, is crucial for sustaining this growth. One feasible solution involves neighbouring countries engaging in the trade of renewable electrical energy. Hydropower stands as one of the many energy sources available in South Asia. However, sectorial constraints pose significant challenges to energy trade initiatives. This study utilises the Analytic Hierarchy Process (AHP) to evaluate Nepal’s readiness and identify obstacles to its cross-border energy trade with India and Bangladesh. A comprehensive analysis of these obstacles is imperative for formulating effective strategies and policies. Additionally, this study offers recommendations for enhancing preparedness and resolving issues related to energy trading, which may apply to similar cross-border situations. This study ranks energy trading obstacles with neighbouring nations using the AHP, offering key insights for stakeholders and policymakers. Using a non-probabilistic purposeful sampling technique, 25 expert respondents from the energy sector and prominent academicians were selected as part of the data collection procedure. At every level of the interview process, their perspectives were invaluable in guaranteeing a thorough and rigorous investigation.

Procedural dilemmas of cybercrimes involving illegal content dissemination in cross-border situations

Aim: The main purpose of this study is to provide a comprehensive overview of the procedural dimensions of the investigation of cybercrimes having an international element. In this context, it highlights the difficulties that can slow down and, in extreme cases, even prevent effective enforcement in two major areas: jurisdiction and mutual legal assistance.Methodology: As the study primarily focuses on legislative approaches, it brings together and comparatively analyses the main EU and international legal sources that regulate cooperation between countries in the field of cybercrime.Findings: Especially in the area of mutual legal assistance, the European Union is actively legislating, and the principle of indirectness, i.e., the possibility for the competent authorities to directly contact intermediary service providers established in another Member State, is increasingly gaining prominence. On one hand, this can speed up procedures, but on the other hand, it entails the risk that the numerous instruments overlap, weakening the effectiveness of enforcement.Value: As some of the legislative procedures are still underway, further research is needed to see how Member States will be able to apply the new instruments in practice.

Procedural dilemmas of cybercrimes involving illegal content dissemination in cross-border situations

Aim: The main purpose of this study is to provide a comprehensive overview of the procedural dimensions of the investigation of cybercrimes having an international element. In this context, it highlights the difficulties that can slow down and, in extreme cases, even prevent effective enforcement in two major areas: jurisdiction and mutual legal assistance.Methodology: As the study primarily focuses on legislative approaches, it brings together and comparatively analyses the main EU and international legal sources that regulate cooperation between countries in the field of cybercrime.Findings: Especially in the area of mutual legal assistance, the European Union is actively legislating, and the principle of indirectness, i.e., the possibility for the competent authorities to directly contact intermediary service providers established in another Member State, is increasingly gaining prominence. On one hand, this can speed up procedures, but on the other hand, it entails the risk that the numerous instruments overlap, weakening the effectiveness of enforcement.Value: As some of the legislative procedures are still underway, further research is needed to see how Member States will be able to apply the new instruments in practice.

Targeted Measures Against Intra-Group Debt Financing: What Needs and Design Options in Light of the ATAD, Transfer Pricing Rules, and Pillar 2?

This article explores the need for interest limitation rules targeting intra-group debt financing, together with certain design options. It is concluded that most issues related to intra-group debt financing are already covered by the anti-tax avoidance directive (ATAD), transfer pricing rules and the Pillar 2 reform. Only the debt/equity balance is not addressed by these rules. Therefore, thin capitalization rules appear to be the most motivated type of targeted rule, if such rules are to be adopted. Other types of targeted rules, such as those taking into account the level of taxation of the recipient or the intention to avoid tax are hardly justified in cases covered by the Pillar 2 reform. In addition, thin capitalization rules can be designed in a manner that does not distinguish between domestic and cross-border situations, hence raising fewer issues of compatibility with the EU fundamental freedoms than other types of targeted rules that rely on the difference in taxation between domestic and cross-border loan transactions. Interest limitation, thin capitalization, ATAD, transfer pricing, GloBE, Pillar 2, BEPS, EU law

Mutual Recognition of Family Relations in the EU. European Court of Justice Case-Law regarding the Children of Rainbow Families

The following study took shape in the context of concerns that exist at the level of the European Union regarding the recognition of filiation in cross-border situations, mainly aimed at the children of same-sex couples. Thus, at the center of the analysis are those established by the Court of Justice of the European Union in case C-490/20, aspects reiterated on the ruling of the Court Order in case C-2/21. The main conclusion refers to ensuring compliance with the best interests of the child by effectively recognizing the freedom of movement and the rights attached to the quality of European citizen, for families with LGBTQ parents.

The Right of a Child to Contact Relatives in Cross-Border Situations – Comments Based on EU Legal Regulations and the Case Law of the CJEU

Abstract The article presents EU legal regulations and decisions of the Court of Justice of the European Union (CJEU) relating to one of the most important rights of children, which is their right to direct contact with their parents and other people close to them. Difficulties may be encountered in cross-border situations when the child moves to another Member State or to a third country. In the first case, EU regulations apply, in particular Art. 24 of the EU Charter of Fundamental Rights and the Council Regulation 2019/1111. They are complemented by the case law of the CJEU, which interprets the terms they contain, e.g. the right to personal contact with the child. Its decisions recognise the best interests of the child as an overriding principle. At the same time, the Court tries to adapt existing EU legal provisions to social realities related not only to increased mobility, but also to changes in the structure of the family itself (patchwork families, single-parent families, etc.).

EU law, In-Work Poverty, and vulnerable workers

AbstractThe focus of the present contribution is the role of European Union (EU) law in shaping the working conditions of four groups of vulnerable workers. It assesses to what extent the impact of EU law favours, on these particular groups, an increased risk of In-Work Poverty (IWP) and explores whether the recent attention to IWP at EU level and the latest initiatives adopted may change the picture in the near future. The purpose is, therefore, to contribute to the debate on the role of EU law and policy in structuring vulnerability from the perspective of IWP. What is commonly known as EU labour law is a fragmentary legal corpus that has grown in a rather patchwork fashion as part of a social dimension of the European project that was, broadly speaking, functional to the logic of market integration. This originates in the early division of competences between the EU and the Member States in the Treaty of Rome, which left labour law and social protection outside the EU sphere of action. It partly explains why the protection of workers, particularly those that do not engage in cross-border situations, does not seem to be the EU’s primary goal, or at least it is not formulated as contrary to other potentially clashing rationales such as market integration, flexibility, enhanced competitiveness and so on. The prevention of IWP was not, in any case, one of the concerns of the original European project. Yet, EU law has produced several pieces of legislation that directly or indirectly contribute to shaping the working conditions of European workers, including those more exposed to IWP. The paper assesses the relevant EU legal framework and discusses its impact on the working conditions of those more at risk of IWP. It concludes by estimating the potential of a series of recent initiatives to enhance the protection of the most vulnerable workers, thus making a positive change.

Article: The Interest Limitation Rule in the Light of European Constitutional Law

At the European level, the Anti-Tax Avoidance Directive (ATAD) introduced an interest limitation rule. The European legislature followed the recommendations of the Organization for Economic Cooperation and Development (OECD), according to which interest limitation rules are a suitable instrument to address schemes that aim to shift profits to other jurisdictions and thereby erode tax bases of Member States. The existing German interest limitation rule and the case law of the European Court of Justice (ECJ) had a tremendous impact on the drafting of the European rule and thus the European legislature decided to expose both cross-border and purely domestic interest payments to the interest barrier. The article shows that the extension of the interest limitation rule to purely domestic situations violates the European principle of equal treatment. Against this background, the article proves that the European internal market allows the application of a European interest limitation rule only in cross-border situations. Interest limitation rule, principle of equal treatment, ATAD, internal market, fundamental freedoms, ability-to-pay principle, market neutrality, economic efficiency, principle of subsidiarity, internal market competence

The Protection of Age-related Vulnerable Persons in Criminal Proceedings under German Law – An Examination Measured Against the European Guidelines

Population ageing is a phenomenon that affects our societies, with both the number and proportion of older people growing across Europe. This impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance, in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general. Those needs have been identified by the European Union. On 27 November 2013, the Commission adopted a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.1 The aim of the Recommendation is to encourage Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’). On 27 May 2021, the Council of the European Union invited the Member States to ensure the full implementation of the existing provisions.2 Consideration is being given to whether further action should be taken. This article assesses the extent to which the existing German criminal procedure law currently meets the standards for protecting older suspects and accused persons identified by the Recommendation of the Commission. By establishing minimum rules on the protection of procedural rights of suspects or accused persons in this field, the trust of Member States in criminal justice systems of other Member States can be strengthened and, thus, mutual recognition of decisions in criminal matters can be improved. In order to achieve the establishment of minimum rules, it is necessary to create a common understanding of the systems of the other Member States, which this article seeks to achieve. It also intends to provide insight into the German system that would be needed to decide, together with a consideration of the systems of the other Member States, whether further legislative action at the level of the European Union, in particular in the form of a Directive, is required.

Regulation of financial supervision in the European Union

This contribution offers a broad theory on the regulation of the financial supervisory architecture in the European Union. It discusses the macro- and micro-prudential competences of the specialised agencies that are now ranging from direct supervision of individual financial institutions to the ability to impose market-wide restrictions on financial activities. The regulatory response to the financial crisis of 2007/08 centralised and strengthened the EU competences of monitoring financial markets and enforcing cooperation between the national competent authorities, especially in cross-border situations. It is however observed that – with some notable exceptions – the supervisory model in the European Union remains fragmented. Lack of direct supervisory powers – especially in the securities and payments markets – means that many international institutions remain without appropriate supervision. This results not only in weaker consumer protection and increased systemic risk, but also in jurisdictional arbitrage and, ultimately, damaged competitiveness of the European financial sector.

Highlights and Trends in Global Taxpayers’ Rights 2020

Primarily supported by case law, this article summarizes and analyses three trends in the practical protection of taxpayers’ rights in 2020 arising from IBFD’s Observatory for the Protection of Taxpayers’ Rights, relating to (i) confidentiality, (ii) more intensive audits and criminal and administrative sanctions and (iii) cross-border situations.

Cross-border exchange of tax information upon request and fundamental rights – Can the right balance be struck?: Joined cases C-245/19 and C-246/2019 État luxembourgeois contre B

On 6 October 2020, in joined cases C-245/19 and C-246/19, État luxembourgeois contre B, the Court of Justice delivered a landmark ruling about the fundamental right to a judicial remedy against an information order issued by the national tax authorities of a Member State in the application of Directive 2011/16/EU. The Court ruled that the holders of the taxpayer’s information have the right to directly challenge the request to provide information but, differing from the Opinion of Advocate General Kokott, the Court decided that, when other remedies are available, the taxpayer under tax investigation and other third parties concerned do not have the right to direct judicial remedy against the information order. Likewise, the Court clarified how specific and precise the information requested must be in order to admit that the request for information is foreseeably relevant for the taxation of the concerned taxpayer. Following the Berlioz case, the ruling at hand continues to outline the content, scope and limits of fundamental rights in cross-border exchanges of tax information upon request in the European Union. However, this casuistic approach will not necessarily result in the development of a coherent and general framework of protection, which underlines the need for a common minimum standard to enhance the protection of fundamental rights in cross-border situations.

Digital Services Tax: Assessing the Policy Reasons for its Introduction in the European Union

This article assesses the related potentially positive and negative implications of the possible introduction of an EU digital levy, as discussed in the February-April 2021 public consultation promoted by the European Commission. In doing so, it engages in an analysis based on broader policy considerations, thereby including interaction with the domestic corporate income tax systems of the Member States, as well as fundamental EU law considerations. On the grounds of such a critical reconstruction and assessment of the proposals under scrutiny, the article also sets forth considerations on possible alternatives and an overall outlook on the future of the taxation of the digitalized economy in the European Union. In particular, with regard to the adoption of an EU digital levy, the article elaborates on the shortcomings of turnover taxation when applied in isolation and the possible approaches to addressing overtaxation in cross-border situations in light of fostering the integration of said levies with income taxes. In doing so, this article is concerned, on one hand, with enhancing the proportionality of the proposed measures, and, on the other hand, with reinstating the need to ensure that the European Union does not lose sight of its originally stated long-term goals in connection with the reform of the taxation of the digitalized economy, not excluding the need to reshape the current nexus rules surrounding the taxation of cross-border business income. In this respect, the authors believe that the European Union could be the right laboratory in which to explore new avenues for steering international tax law development towards internation equity, fairness, simplicity and long-lasting solutions.

The Colony Predation Algorithm

This paper proposes a new stochastic optimizer called the Colony Predation Algorithm (CPA) based on the corporate predation of animals in nature. CPA utilizes a mathematical mapping following the strategies used by animal hunting groups, such as dispersing prey, encircling prey, supporting the most likely successful hunter, and seeking another target. Moreover, the proposed CPA introduces new features of a unique mathematical model that uses a success rate to adjust the strategy and simulate hunting animals’ selective abandonment behavior. This paper also presents a new way to deal with cross-border situations, whereby the optimal position value of a cross-border situation replaces the cross-border value to improve the algorithm’s exploitation ability. The proposed CPA was compared with state-of-the-art metaheuristics on a comprehensive set of benchmark functions for performance verification and on five classical engineering design problems to evaluate the algorithm’s efficacy in optimizing engineering problems. The results show that the proposed algorithm exhibits competitive, superior performance in different search landscapes over the other algorithms. Moreover, the source code of the CPA will be publicly available after publication.

Fundamental Rights and Best Interests of the Child in Transnational Families, by Elisabetta Bergamini and Chiara Ragni

This edited book by Elisabetta Bergamini and Chiara Ragni covers a crucial theme—the implementation of children’s rights and interests in the EU in cross-border situations. Over the course of 16 chapters, highly important topics are covered which demonstrate the current rate of international movement of families, and the accompanying internationalisation of child and family law. Stalford noted in her seminal work ‘Children and the European Union: rights, welfare and accountability’ how the EU has experienced changes to its constitutional, legal, and institutional landscape over the years, and how this has generated new opportunities to engage with a broad range of social and rights related issues relating to children.1 The primary focus of the book—the protection of children in cross-border situations—is therefore a particularly worthy area for examination. Challenging questions are posed in this book, including those relating to the fundamental rights of children in transnational families, what...

VISIÓN GENERAL DE LAS TENDENCIAS GLOBALES EN LA PROTECCIÓN PRÁCTICA DE LOS DERECHOS DE LOS CONTRIBUYENTES PARA 2019, SEGÚN EL OBSERVATORIO PARA LA PROTECCIÓN DE LOS DERECHOS DE LOS CONTRIBUYENTES DEL IBFD (PARTE 1)

El artículo describe las tendencias mundiales en la protección práctica de los derechos de los contribuyentes en lo tocante a (i) confidencialidad de la información del contribuyente en manos de la Administración Tributaria (ii) procedimientos tributarios, tanto administrativos como jurisdiccionales (iii) medios de impugnación; (iv) sanciones penales y administrativas (v) ejecución forzosa de créditos tributarios, y (vi) situaciones transfronterizas, en lo relativo a las salvaguardas para los contribuyentes en el intercambio de información, con base en los datos del Anuario 2019 del Observatorio para la Protección de los Derechos de los Contribuyentes del Buró Internacional de Documentación Fiscal (IBFD, por sus siglas en inglés).

Problems of legal fictions related to surrogacy in cross-border situations

The core of the study is the latest changes in some legal systems in the field of surrogate motherhood, as well as consequences and problems arising from this in global perspective. The authors indicate significant differences in the admissibility and content of surrogate motherhood and different trends in individual countries (non-recognizing, broadening, limiting, or prohibiting different legal solutions). As a consequence, they also signal the issue of recognizing effects of foreign procedures and registration of civil statuses or refusal of recognition, as well as problematic postulates to create common global regulation at the international level. The introduction of surrogate motherhood procedures in some states (including legal fictions of the child’s origin from the ordering person) may raise legal problems and dilemmas in other coutries, especially in situations of providing the child to personal constellations, in which the child cannot be conceived in genere (e. g. a single man or a homosexual couple). Some discussed legal solutions can be evaluated as implementing a “demand to obtain a child”, which is considered legitimate and binding by the state legal system. The problems from the foreign perspective concern not only the assessment of legal systems that provide for the above solutions, but also effective functioning of different national fundamental legal principles in related situations (in the past or present) with several legal systems (e. g. with a country’s citizens as well as permanent and temporary residents who had previously been abroad and took action on the basis of foreign law). Fundamental doubts may arise abroad as to the functioning of the universal principle of the prohibition of trafficking in human beings, the legal principles of adoption and rules concerning the child’s identity, as well as understanding by the states-parties of the treaties of the principle of the welfare and best interest of the child and the dignity of women (often coming from poor societies). Foreign concerns may also include the future functioning of the adoption system, because the interest in adopting orphans can be significantly less than the competitive ability to order a child via contract (including shaping its future physical characteristics).

Compatibility of a European METR Minimum Tax with EU/EEA Free Movement Guarantees

A group of scholars has recently proposed to implement an international minimum effective tax rate (METR) for multinationals (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3796030). They have conceived the METR as a revised and modified version of the GloBE minimum tax concept currently pursued by the OECD/G20 Inclusive Framework on BEPS. Like GloBE, the METR has been designed to operate as a broad instrument against BEPS. But the international allocation of additional taxing rights regarding profits that have been taxed too low, as well as the calculation of the top-up tax, would differ from the GloBE approach. More specifically, the METR would rely on formulaic apportionment for allocating taxing rights, and it would allow the relevant jurisdictions to levy a proportional top-up tax that corresponds to its own corporate tax. In the preparation of an exchange of views with the EU Commission services, the author of this paper has been asked to provide an external review of the compatibility of the METR concept with EU/EEA free movement rights. The paper arrives at the conclusion that the METR would give less rise to instances of discrimination – as understood in case law of the CJEU – than an unmodified GloBE minimum tax. Moreover, it is possible to adapt the METR rules so as to preserve the core concept whilst ensuring the near complete absence of disadvantageous tax treatment of cross-border situations. The remaining marginal issues would then likely be accepted as justified by the CJEU. An earlier version of this paper was published in Tax Notes International, Volume 102, April 12, 2021.

State Aid: Time to Investigate Informal Capital Rulings

This paper discusses the question of whether the Dutch informal capital scheme constitutes state aid. This scheme endorses tax deductions for payments or charges between group companies, even where such payments are not actually made. Informal capital structures are based on a mismatch between the Dutch corporate tax and the foreign profit tax. The issue of whether the scheme is selective would appear to boil down to the question whether the scheme can be justified by the arm’s-length principle. The objective of the arm’s-length principle purportedly is the allocation of an arm’s-length profit to the Netherlands and nothing more. However, this does not explain why the unilateral downward adjustment is only granted on the condition that the foreign affiliated person who provided the advantage would have been subject to Dutch tax had it been resident in the Netherlands. This condition has the effect that double non-taxation is avoided in domestic but not in cross-border situations and is discriminatory. Therefore, the present author is of the view that the prima facie selectivity of the Dutch informal capital scheme cannot be justified by the arm’s-length principle. Accordingly, the present author submits that European Commission should investigate the Dutch informal capital scheme.