Cross-border Situations Research Articles

LAW APPLICABLE FOR THE REPRESENTATIONTO EXERCISE THE CORPORATE RIGHTS OF SHAREHOLDERSIN POLISH COMPANIES

Shareholders of Polish companies dispose of various rights – property as well as corporate. Majority of corporate rights can be exercised by a representative. Representation, in this regard includes two categories: proxy and statutory rep-resentation. Regulations concerning representation vary, depending on kind of company in which they are used (limited liability companies, joint – stock com-panies or public companies, whose regulation is influenced by European law). In current study representation to exercise corporate rights of shareholders will be examined on the meta-law level. Provisions of international private law shall be observed to determine that which country’s legal regime shall be applied to interpret the institution of representation in cross-border situations. Additionally, it is necessary to distinguish the scopes of laws applicable for different issues connected with representation. The dissertation is aimed to address all abovementioned questions with the reference to European and Polish law.

EUROPEJSKI NAKAZ OCHRONY – ISTOTA I ZNACZENIE

EUROPEAN PROTECTION ORDER – ITS ESSENCE AND IMPORTANCESummary The paper analyses provisions of the Directive of the European Parliament and the Council 2011/99/EU of 13 December 2011 on the European protection order. It concludes that European protection order can be not strong enough to protect victims in the cross-border situations. The main reason of its “illness” is a lack of obligation for member states to have (or introduce) in their penal law systems measures of protection of victims, as a basis for the order, like described in Article 5 of the Directive.

Comprehensive Sickness Insurance as a Condition for EU Citizens' Residence in other Member States: A Need for Reform?

Free movement of persons is one of the fundamental freedoms of European integration. It is protected by EU primary law, especially by the TFEU and its provisions on citizen's rights and free movement of workers within the Union. The described freedom is not absolute, however. One of the crucial limitations consists of the economically nonactive EU citizens and their family members having to obtain comprehensive sickness insurance cover in the host Member States in order to enjoy the right of residence for more than three months in those states. The aim of the paper is to analyse the legal framework of the UK, Ireland, Slovenia and Croatia and their implementation of the EU Residence Directive's comprehensive sickness insurance condition for the right of residence in EU Member States and determine whether certain changes to the Residence Directive are needed in order to obtain a clearer regulation of EU citizens' rights in cross-border situations. The analysis has shown that the national autonomy may result in various interpretations, depending on the type of the social security health system the country in question employs. Different interpretations have highlighted the need for a clearer EU-level regulation, to increase clarity and legal certainty for migrants.

BEPS Action 16: The Taxpayers’ Right to an Effective Legal Remedy Under European Law in Cross-Border Situations

This article starts from the reasonable assumption that the implementation of the base erosion and profit shifting (BEPS) project increases legal uncertainty in tax matters. The shift from the isolated and bilateral exercise of taxing jurisdiction to international tax coordination in the framework of the BEPS project is not accompanied by a corresponding global convergence in the exercise of legal remedies, which remain confined to their national boundaries. In line with their previous research, the authors address hereby the right of taxpayers to an effective legal remedy under European tax law, taking into account the dialogue among Courts in respect of legal values contained in national Constitutions of European Union (EU) Member States, the EU Charter of Fundamental Rights and the European Convention on Human Rights. The focus is on the right to an effective legal remedy in cross-border tax procedures, with special emphasis on mutual agreement procedures and mutual assistance. The authors suggest a two-tier mechanism with the involvement of taxpayers and tax authorities, which allows for an effective exercise of the right of defence and does not require major changes in the wording of treaty clauses modelled after Articles 25 and 26 OECD MC. Hopefully, something that other international institutions, including the United Nations, may consider for the future. The authors suggest filling this gap with their proposal for a BEPS Action 16.

Microsoft v. USA: Location of Data and the Law of the Horse

For centuries, private international law, the branch of law concerning conflicts of law across international borders and jurisdictions, established rules based on the location of people, organizations, and activities. These rules should continue to govern cross-border situations in an interconnected world. Replacing them with special law governing data location is effectively opting for a counterproductive "Law of the Horse".

The Expanding Circle of Contract Law

People and corporations are increasingly held liable in private law for the external effects of their actions, in particular in cases that involve some fundamental aspect of “justice” such as severe violations of labour standards or threats to the environment. These public interests are traditionally guarded by the state, but are now increasingly enforced by private individuals, in particular in cross-border situations where the injustice takes place in a “far-away” country. This contribution explores what is the potential of contract law in dealing with “private law justice across borders.” It asks whether the doctrine of privity of contract should be traded in for an approach that better takes the externalities of contracts into account. It is argued that current contract law is ill-suited to deal with this challenge and should adopt new techniques to expand the circle of people contract law seeks to protect.

Tax Residence of Individuals within the European Union: Finding New Solutions to Old Problems

The productive and intense discussion on how to tackle tax avoidance and double non-taxation is casting a shadow over a very relevant and still unresolved issue within the European Union: double taxation. The latter is an obstacle that can hamper the effectiveness of the internal market and create tax injustice and, therefore, it should be considered as important as double non-taxation. In this context, when individuals want to exercise their fundamental freedoms in cross-border situations within the European Union, one of the elements that can easily cause double (or multiple) taxation is the concept of tax residence. Against this background, this article is aimed at analysing the obstacles caused by tax residence conflicts concerning individuals within the European Union and at outlining possible solutions to these conflicts. Two solutions are proposed. The first solution is a common definition of tax residence of individuals within the European Union that takes into account either the place from which an individual derives the major part of his income or the place in which the individual spends more than 183 days. The second solution is aimed at accelerating dispute resolution within the European Union: setting up an ad hoc joint commission that would be obliged to solve the problems caused by double or multiple tax residence within a reasonable time frame. The author points out that the latter solution is the most appropriate one in a context that wants to keep relying on the concept of tax residence as a genuine link to exercise the power to tax.

Cross-border collaboration for neglected tropical disease efforts-Lessons learned from onchocerciasis control and elimination in the Mano River Union (West Africa).

Diseases don’t respect borders, so efforts to control and eliminate diseases must also be flexible and adaptable enough to effectively reach the populations that live in the areas around national frontiers. Onchocerciasis, commonly known as river blindness is a tropical disease that has historically affected millions of people in 35 countries in Africa and Latin America. In Africa, programs and partnerships to address river blindness through mass drug administration have been active for more than 25 years. While in many cases the disease is found in isolated foci that fall entirely within national boundaries, the geographic scope of many affected areas crosses country borders. National river blindness programs are the responsibility of each nation’s Ministry of Health, so in cross-border situations there is a need for effective country-country collaboration. Cross-border collaboration for onchocerciasis control efforts in the countries of the Mano River Basin illustrates the positive impact of a creative model, and offers lessons for expanded application for onchocerciasis elimination as well as other neglected tropical disease (NTD) control and elimination programs.

Groupe Steria: A Threat to Group Taxation Regimes?

On 2 September 2015, the CJEU issued its judgment in the Groupe Steria case. According to the CJEU, the French group consolidation regime is incompatible with EU law. General tax law provisions that are equally applicable to domestic and cross-border situations are, as a consequence of the scope of the consolidation regime that is limited to domestic groups, more advantageous to these domestic groups. The CJEU in this case determined that also combinations of legal provisions cause incompatibilities with EU law. The author examines the place of this judgment within EU law and especially in relation to the neutrality principle.

The Principle of Mutual Recognition in the European Internal Market With Special Regard to the Cross-Border Mobility of Companies

Several rulings of the ECJ regarding the cross-border mobility of companies, from Daily Mail to Vale and National Grid Indus, have inspired numerous authors from throughout the European Union to discuss these judgments' justification and relevance with regard to international corporate law and its dichotomy between the incorporation and the real seat theory. This approach fails to understand that the Court deduces a principle of mutual recognition from the European fundamental freedoms which, albeit originally developed for the freedom to move goods, also applies to the freedom of establishment for companies. This principle grants the Member States autonomy in defining qualification standards in their capacity as country of origin, while at the same time obliging them to recognize as functionally equivalent other Member States' qualification standards once they become the host State for a foreign corporation. The fundamental freedoms thus allocate competences in cross-border situations by assigning the country of origin the competence to define and enforce qualification standards and the host State the authority to define and enforce framework conditions. Companies can consequently choose the country of origin within the common market whose qualification standards they wish to fulfil and can then operate throughout the common market under these laws. The article therefore demonstrates how European corporate cross-border mobility is not a question of the interaction of national laws, but part and parcel of the overall European order of fundamental freedoms and the obligations these create.

Approaches towards the Application of Tax Incentives for Cross-Border Philanthropy

Most governments of high income countries stimulate domestic philanthropy. For philanthropy crossing borders, however, governments are less consentient. These varying standpoints are reflected in the tax legislation of countries. In many of the countries concerned, donations to domestic charitable causes are rewarded with a tax incentive. When a donation crosses borders, however, the tax incentive does not always apply. This article examines the different approaches governments hold towards the application of tax incentives in cross-border situations and the underlying rationales. Through the analysis of the relevant tax sources, tax jurisdictions are classified into four common models that summarize the spectrum of different approaches governments hold. They vary from jurisdictions that support cross-border donations with a tax incentive to governments that restrict tax incentives to donations within the country and two models that represent the more moderate approaches between these extremes.

Focus: Last Chance Saloon

Page 8 Volume 23 Issue 2 2016 INTERNATIONAL union rights FOCUS ❐ BREXIT right to take collective action, including the right to strike, is a fundamental right which forms an integral part of the general principles of Community law, the Court went on to conclude that collective actions may – at least in cross-border situations like the once in Laval and Viking – be considered a restriction on the freedom of services and the right to establishment. The result has been that the exercise of trade union rights such as the right to collective action must be justified in light of economic freedoms. This emphasis on the primacy of economic freedoms has created a fundamental in imbalance between the exercise of social rights and economic freedoms. It has had a chilling effect and has left both trade union rights and member states without the necessary tools to properly protect collective agreements. The consequence for workers, in particular posted workers has been unfair competition and exploitation. Addressing the damaging impact of fiscal measures on trade union rights Serious damage has also been done to the European Social Model by measures adopted to comply with EU fiscal rules. Many EU countries have made or have been forced financially to make significant cuts in line with various recommendations made under the framework of EU economic governance, the European Semester process and various ‘Troika’ interventions. Fiscal consolidation has involved tough adjustments aimed at reducing fiscal deficits by lowering public expenditure, raising prices of utilities, freezing or reducing public-sector pay, and capping pension payments and social benefits. Collective bargaining and industrial relations institutions have been damaged. There has been an increase in unfair and insecure working conditions, in-work poverty and in particular youth unemployment. The reduction in coverage of collective agreements , the only real counter to growing wage inequality and to depression in demand, has seen the gap between the highest and lowest paid continue to expand. Quality jobs are being hollowed out and there is an increase in unfair and insecure working conditions incomes are flat and falling. There is every indication that rising inequality is causing social and political instability and workers are losing patience and confidence in the ability of the EU to find ‘social’ solutions. The Lisbon Treaty Reforms have not lived up to expectations The Lisbon Treaty entered into force on 1 December 2009 providing a new legal context and measures for an improved balance between Both EU fiscal policies and rulings of the Court of Justice of the European Union have had a negative impact on the exercise of trade union rights ESTHER LYNCH is Confederal Secretary with the European Trade Union Confederation. Esther was elected in 2015, having previously worked with the Irish Congress of Trade Unions as head of legal affairs. Esther is responsible for developing and negotiating the ETUC priorities for the European Pillar of Social Rights and for ETUC actions in the field of labour law and trade union rights. F ollowing the UK referendum the EU as a whole now faces a very difficult challenge. The anger and disillusionment of working people with the EU is not confined to the UK. Much of the criticism is in response to the measures adopted in Member States to address the economic crisis and their impact on workers’ rights. Not everyone has benefited from EU fiscal policies and much harm has been inflicted. Central to many workers’ concerns is that EU protection of their social rights, in particular their trade union rights, are not being accorded equal weight and emphasis compared with the protection and promotion of employers’ economic freedoms. It is not just fiscal rules that have had a negative impact on the exercise of trade union rights, such as the right to collective bargaining and collective action. The Court of Justice of the European Union (CJEU) has demonstrated a growing preference for promoting the achievement of the single market through negative integration, by removing rules and restricting rights, in particular trade union rights whenever the exercise of these rights can be argued to represent an ‘impediment to the operation of economic freedoms’. But it is not too late to rectify the situation. Social objectives can...

Miljoen, X and Société Générale: The Final Curtain of the Dividend Withholding Tax Saga?

In many EU Member States, requests for the reimbursement of dividend withholding tax based on EU law- related arguments are pending. Basic argument is that combinations of domestic law provisions result in full neutralization of dividend withholding tax in domestic situations, while this is not always the effect in cross-border situations. Taxpayers and tax authorities, however, seldom agree on what is the comparable domestic situation to determine whether the tax treatment in cross-border infringes EU law. The joint cases Miljoen, X and Société Générale could bring more clarity. On 25 June 2015, AG Jääskinen issued his opinion in these cases.

Tax Treatment of AT1 Capital

The newly introduced article 29a of the Dutch Corporate Income Tax Act 1969 (CITA) deals with the Dutch tax aspects of Additional Tier 1 capital (AT1 capital). The purpose of article 29a CITA is to ensure that payments on AT1 capital are considered tax deductible at the level of the issuing party and that any income derived from AT1 capital will be taxed. The question is whether this classification is correct and whether the classification will hold in cross-border situations. The authors analyse and discuss the Dutch tax classification of AT1 capital issued by banks and insurance companies in the Netherlands.

Growing Impetus for Harmonization of Personal and Family Allowances: Current State of Affairs of the Schumacker-Doctrine after Imfeld and Garcet

By applying the rules of market integration and fundamental freedoms (e.g., the principles of non-discrimination and non-restriction), the CJEU has enforced various elements of the taxpayers’ personal ability to pay taxes that have been denied by Member States in cross-border situations. The CJEU’s Schumacker-doctrine shapes the taking into account of the taxpayer’s personal and family circumstances in the internal market. The article argues that the CJEU’s Schumacker-doctrine still contains a number of inconsistencies and incorrect assumptions, and raises the question whether EU law has to stick to this Schumacker-doctrine or go another way. Whether this issue can be resolved by the CJEU on the basis of existing international tax treaty provisions depends on its case law and the national laws of the Member States, or the possible need for specific EU legislation. The case law of the CJEU in Imfeld and Garcet of 12 December 2013 will be discussed, with an overview of possible tools to refine the taking into account of the taxpayer’s personal and family circumstances. The article concludes that actions on EU level are needed to eliminate double (non-)taking into account of the personal and family circumstances that is the result of the parallel exercises of Member States’ fiscal sovereignty.

VAT on Private Use of Company Cars in Cross-Border Situations: Double or Non-taxation?

Because the Netherlands and Germany approach the taxation of private use of company cars for VAT differently this may result in double or non-taxation. Double taxation in case the employer is a Dutch entrepreneur and the employee lives in Germany. Nontaxation if the employer is a German entrepreneur and the employee lives in the Netherlands. In this article the author seeks the answer to the question which country applies the correct approach. Her conclusion is that the legislation in both countries needs adjustment.

Current questions of EU VAT grouping

EU VAT grouping as an optional provision for the Member States of the European Union gives rise to several questions regarding its interpretation. In the article, the author analyses the current question of the EU VAT grouping notion which either have been controversially discussed throughout academic literature or have been brought up after the recent CJEU case law. While VAT grouping may be a means to facilitate VAT neutrality, the current EU provisions lead to disparities particularly in cross-border situations. Without further harmonisation, the potential of VAT grouping cannot be fully utilised and may lead to the eventual abolishment of VAT grouping.

¿Hacia un nuevo derecho procesal europeo de protección del consumidor?: La nueva iniciativa europea sobre la resolución de litigios de pequeña cuantía

The European Small Claims Procedure was designed by the European legislator to provide consumers with an effective legal instrument to facilitate access to justice and to ensure the exercise of their rights in the cross-border situations. However, despite the benefits this process brings in terms of reducing the costs and time limits in cross-border claims, it is not still well known and remains underutilized several years after the entry into force of Regulation (EC) no. 861/2007. This article analyzes the changes that the Commission intends to make to this Regulation to promote efficiency of justice in the European Union and highlights and shadows.

Ten Years of Dutch Loss Compensation Regime for Holding and Financing Companies

Dutch holding and financing companies are subject to a specific tax loss compensation regime, the so-called holding company loss rule. In short, the purpose of this rule is the prevention of the compensation of losses resulting from holding and financing activities with profits from operational activities. This article concerns an evaluation of the rule from both a policy perspective and a tax-technical perspective. Several imbalances and inadequacies of the rule, in particular with respect to the application of the rule in cross-border situations, are highlighted.

The (Boundaries of) the Instrumentalisation of Private International Law by the European Institutions

The (Boundaries of) the Instrumentalisation of Private International Law by the European Institutions