Draft Directive Research Articles

The European Research and Bolar Exemptions ‒ Background, Status Quo and a Look at the Agreement on a Unified Patent Court (UPCA) and the EU Commission’s New Draft Directive for the Reform of Pharmaceutical Legislation

The European Research and Bolar Exemptions ‒ Background, Status Quo and a Look at the Agreement on a Unified Patent Court (UPCA) and the EU Commission’s New Draft Directive for the Reform of Pharmaceutical Legislation

BEFIT: A Blast From the Past or a Modernized Approach to Tax Simplification?

In this note, the author discusses the Draft “Business in Europe: Framework for Income Taxation (BEFIT)” proposal and its mechanics. Apart from providing an overview of how the draft Directive is expected to operate, attention is given to the regime applicable to cross-border tax loss relief and the differences and potential similarities between BEFIT and prior similar attempts of the European Commission – namely the Common (Consolidated) Corporate Tax Base proposals.

Strategic Lawsuits against Public Participation (SLAPPs), the Governance of Historical Memory in the Rule of Law Crisis, and the EU Anti-SLAPP Directive

Strategic Lawsuits against Public Participation (SLAPPs) – the rule of law backsliding – governance of historical memory – academic freedom – EU Draft Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings

Minimum Wage Fixing Mechanisms in the EU Member States: A Comparative Overview in the Light of the Draft Directive on Adequate Minimum Wages

This paper focuses on a comparative legal overview of the minimum wage in Austria, France, Germany, Italy, Poland, Portugal, Romania and Spain. The author uses this context to discuss the significance of constitutions, statutes and collective bargaining agreements. Attention is drawn to the amount of detail in relevant constitutional provisions, the reasons for the discrepancies, as well as to the correlation between the way in which the minimum wage is regulated in the constitution and the way it is regulated by way of statute or collective bargaining agreement. The influence of international and European legal acts on the norms adopted in particular states is also assessed. Next, the structure of various national minimum wage fixing mechanisms is analysed in an attempt to indicate regularities in their formation. The paper refers to the draft Directive on adequate minimum wages in the European Union and provides an assessment of its potential impact on domestic legal systems. Further, the article evaluates national minimum wage fixing mechanisms from the perspective of their compatibility with the requirements introduced by the draft Directive.

Initiative for Minimum Salary Regulation of the European Union - Opportunities and Challenges

The purpose of this article is to examine the issue connected with the European proposal to regulate minimum wages in the EU. In October 2020, the European Commission presented a draft directive on the EU minimum wage, which aims to ensure decent wages for workers. The article’s tasks are to assess the current situation with the minimum wage in the EU, the expected effects of the directive and the main challenges related to its implementation. The methodology includes comparative analysis, statistical analysis, induction and deduction. The main results include an analysis of the proposal for regulation, presentation of different approaches for defining the minimum wage, and forecasts for the effect of its implementation.

Regulating Algorithmic Management: An Assessment Of The EC’s Draft Directive On Improving Working Conditions In Platform Work

Regulating Algorithmic Management: An Assessment Of The EC’s Draft Directive On Improving Working Conditions In Platform Work

Measures taken in the European Union to protect workers during the pandemic

This article examines EU initiatives prompted by the need to protect the labor market and working citizens in member states, and measures taken at the national level in Germany and France. The EU’s involvement in ensuring protection of workers’ rights in pandemic circumstances has been limited to formulating recommendations to countries and financial assis-tance, as well as prioritizing the social element in European Union policies. This paper examines the Support to mitigate Unemployment Risks in an Emergency instrument developed by the EU in 2020 and the draft directive on an adequate minimum wage in the EU published at the height of the pandemic in autumn 2020. A review of measures in Germany and France focuses on a mechanism to reduce working hours during the period of economic activity restrictions by placing most costs on the state. In Germany, this is the Kurzarbeit (reduced working hours) program. In France, this is the transfer to reduced working hours with the permission of the administrative authority, in the case of lost wages caused by the temporary closure of the company or part of it, or reduction of working hours below the statutory working hours. The author concludes that the rapid economic and labor market recovery in these countries is, among other things, due to the financing of the wages lost due to wage restraint from the state budget. It is of interest to further study the foreign experience of implementing reduced working hours programs for possible use in Russia.

Онлайн-посреднические платформы: обсуждаемые подходы и отечественная система правового регулирования

This article provides an analysis of topical issues related to the individual and legal regulation of the activities of online intermediary platforms (owners of information aggregators of goods and services), the author’s translation of some of the most interesting provisions of the draft Directive of the European Union “On Online Intermediary Platforms”, as well as in addition to the translation is provided with author’s comments aimed at analysing the proposed provisions and comparing them with the norms in the national legislation of the Russian Federation, as well as with existing judicial practice.

Much ado about little: The Commission proposal for a Directive on adequate wages

The European Commission recently presented a proposal for a Directive on the topic of adequate minimum wages. The purpose of the directive is to prompt an upward convergence of national minimum wages, so as to ensure their adequacy in all EU countries. This article aims to analyze the actions included in the draft Directive and evaluate the adequacy of its legal basis, eventually drawing some critical conclusions.

Exploring health workforce regulation practices and gaps in Ethiopia: a national cross-sectional study

BackgroundHealth workforce regulation plays key roles in ensuring the availability of competent health workers and improving performance of the health system. In 2010, Ethiopia established a national authority aiming to ensure competence and ethics of health professionals. Subsequently, subnational regulators were established and regulatory frameworks were developed. Although there were anecdotal reports of implementation gaps, there was lack of empirical evidence to corroborate the reports. We conducted a national study to explore health professional regulation practices and gaps focusing on registration, licensing, ethics, scope of practice, and continuing professional development.MethodsWe conducted a mixed methods cross-sectional survey using structured interview with a national representative sample of health professionals and key informant interviews with health regulators and managers. We used two stage stratified cluster sampling to select health professionals. The quantitative data were subjected to descriptive and multivariable logistic regression analysis. We conducted thematic analysis of the qualitative data.ResultsWe interviewed 554 health professionals in the quantitative survey. And 31 key informants participated in the qualitative part. Nearly one third of the respondents (32.5%) were not registered. Many of them (72.8%) did not renew their licenses. About one fifth of them (19.7%) did nothing against ethical breaches encountered during their clinical practices. Significant of them ever practiced beyond their scope limits (22.0%); and didn’t engage in CPD in the past 1 year (40.8%). Majority of them (97.8%) never identified their own CPD needs. Health regulators and managers stressed that regulatory bodies had shortage of skilled staff, budget and infrastructure to enforce regulation. Regulatory frameworks were not fully implemented.ConclusionsHealth professionals were not regulated well due to limited capacity of regulators. This might have affected quality of patient care. To ensure effective implementation of health professional regulation, legislations should be translated into actions. Draft guidelines, directives and tools should be finalized and endorsed. Capacity of the regulators and health facilities needs to be built. Reinstituting health professionals’ council and regulation enforcement strategies require attention. Future studies are recommended for assessing effects and costs of weak regulation.

Best Practices in European Restructuring - Contractualised Distress Resolution in the Shadow of the Law

The general trend away from traditional, formal insolvency proceedings opens up a vast area to private ordering, with all the associated opportunities and risks. The transition can be less costly if the resulting uncertainty is reduced to a minimum. This presents national legislators with a delicate challenge. They should not be overly prescriptive and should effectively delegate decision-making to stakeholders and expert professionals, who are likely to be better informed and better incentivised. At the same time, the law must provide for information to flow where needed and for the creation of optimal incentives. Against this background, guidance on best practices can be of great value. It may assist policymaking in one jurisdiction by drawing attention to successes and failures in others, and it may allow professionals, advisors, debtors, creditors and courts to find common ground in the formulation of high-quality distress resolution plans and in distinguishing viable and non-viable distressed debtors. Based on extensive empirical research in four European Union states, this book takes up the challenge of unearthing and crystallising some of the most critical best practices in the various stages of a distress resolution process. Drawing on these best practices, it provides lawmakers with several ‘Policy Recommendations’, and other key stakeholders with a set of ‘Guidelines’. Of particular interest will be development of a relative priority rule (recently recommended by the European Council for incorporation in the draft directive on preventive restructuring); and discussion of the utility of a duty to file versus one to avoid wrongful trading; crisis events and early warning indicators; fairness in plan formulation, voting, examination, and confirmation; class formation and ‘cram-down’ issues; the goals, contents, and structure of high-quality plans; the role of professional advisors; negotiation best practices; the impact of prudential rules on NPLs on banks’ behaviour in corporate workouts; and plan implementation and monitoring. Special attention is given to the particular needs of micro, small, and medium enterprises.

The Singapore Story of Injecting US Chapter 11 into the Commonwealth Scheme

Singapore’s scheme of arrangement was very similar to that found in most Commonwealth countries. Over the last two decades the scheme has become a popular de facto debtor in possession regime in Singapore used to restructure the debts, both financial and trading, of insolvent companies. The courts have taken a leading role in this development. This success story has an unexpected twist recently. As part of its strategy to develop Singapore into an international centre for debt restructuring, the Government accepted the recommendations of a law review committee to bring in significant elements of the US Chapter 11: an automatic, wide-ranging moratorium, cross-class cram down, super priority lien and pre-packaged schemes. It will be argued that due to the significant differences between the insolvency laws of Singapore and US and the different conceptual framework of the scheme and Chapter 11, there will be a period of uncertainty or even instability while the courts work out ways to harmonise the two different bodies of law. This bold experiment has relevance beyond Singapore. It has close parallels in UK’s imminent reforms and, to a lesser extent, the European draft directive on restructuring.

European remedial coherence in the regulation of non-consensual disclosures of sexual images

The non-consensual dissemination of sexually explicit images or videos for no legitimate purpose represents a serious sexual violation by means of breaching an individual's ability to control their own sexual identity. This article argues that the only adequate legal response to this behaviour is targeted criminal regulation, and that action on a regional level is within the European Union's competence by virtue of Article 83(1) TFEU. The approaches of EU Member States to the phenomenon through targeted criminal law are examined in order to extract positive and negative elements of the respective regulatory systems. Drawing on the experiences of these States, as well as on existing EU criminal directives, a draft directive is included to illustrate what form a European regional system of criminal regulation may take.

Tripping the Light Fantastic: A Comparative Analysis of the European Commission's Proposals for New and Interim Financing of Insolvent Businesses

AbstractThe European Commission published a Draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The Draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to ‘keep the lights on’ for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and, where possible, to finance implementation of a restructuring plan, called ‘new financing’ in the Draft Directive. Creating such a financing regime is a complex and difficult issue, as the law's intervention in this area often involves constraints on the rights of existing creditors, requiring that a careful balance is maintained between existing creditors' rights and the rights of the interim financier. This article examines the underlying policy rationale and benefits of having new and interim financing available to financially distressed debtor companies and discusses the risks involved. It examines the EU Commission's proposals in light of the experience of jurisdictions that have already tackled these issues, notably the USA and Canada, or have developed a market‐based solution to this problem, such as the UK. While the European Commission's wish to include such measures in its restructuring proposals is laudable, the measures as drafted raise concerns, particularly regarding risks associated with priority for the grantors of such finance. The authors suggest that there are four fundamental aspects of such financing on which the Directive could give guidance to Member States, namely, effective notice to pre‐filing creditors, thresholds for the debtor to qualify, a menu of relevant criteria to balance benefit and prejudice, and a role for the court in resolving disputes, ensuring fairness to stakeholders, and serving as an accountability check on interim financing arrangements, all aimed at maintaining the integrity of the insolvency process. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.

Opening the Door for the Opportunistic Use of Interim Financing: A Critical Assessment of the EU Draft Directive on Preventive Restructuring Frameworks

AbstractThe European Union Draft Directive on a Preventive Restructuring Framework and Second Chance (the ‘Draft Directive’) provides rules for adopting reorganisation plans in order to avoid insolvency. The Draft Directive also provides rules on the related problem of interim financing. According to the Draft Directive, interim financing should be encouraged and not be made subject to claw back unless parties have committed fraud or acted in bad faith. The Draft Directive thereby fails to recognise that finance transactions are too diverse in nature to provide the company and its financial creditors with a transaction avoidance free period. If the Draft Directive is adopted in its current form, it will open the door for opportunistic use of interim financing by both debtors and professional lenders. It will allow debtors to make final bets with other people's money and will also allow for conduit pipe financing reducing the exposure of existing shareholders. Lenders will also be able to make opportunistic use of the rules, most notably in the form of cross‐collateralisation and aggressive loan‐to‐own strategies under the guise of interim financing.There are several possible solutions to the potential for opportunistic use. The courts could be involved ex ante. This would, however, turn the Draft Directive into a fully fledged court supervised procedure instead of the currently intended preventive restructuring procedure which avoids such court procedures. An alternative would be to simply take out the provisions on interim financing. Another possibility would be to limit the protection offered in the Draft Directive to cases of new security against new money necessary and used for the continuation of the business. Copyright © 2018 The Authors International Insolvency Review published by INSOL International and John Wiley & Sons Ltd.

Proposing policy changes for sewage sludge applications based on zinc within a circular economy perspective

Sewage sludge production has been increased in the last years because the wastewater treatment is mandatory in urban areas with more than 2000 inhabitants since 2005. Most adequate disposal of sewage sludge should be agricultural soils to improve their fertility and fulfill bioeconomy and circular economy requirements. However, the higher level of heavy metals in sludge than in soils makes necessary to consider the inputs of heavy metals in soil as have been done by regulation 86/278/EEC and more recent documents (EU 3rd Draft Directive or the Environmental, economic and social impacts of the use of sewage sludge on land). Sewage sludge application is restricted by the mean amount of heavy metals applied with sewage sludge in soil in a 10-year period and the concentrations of heavy metals in the sludge and soils. The aim of this study was to evaluate the current and foreseeable limits of the application of different types of sewage sludge (anaerobic, pelletised and composted) considering the current and the possible future legislation of the most abundant heavy metal in the sewage sludge, which is Zinc (Zn) and taking into account the existing levels in acid soils in Galicia (NW Spain). Main results highlighted the adequacy of using composted sludge as amendment, while anaerobic and pelletised sludge as fertilisers to reduce future possible soil contamination. Sewage sludge regulations should aim to reach mean values of Zn to ensure soil microbial health and sustainability adequate levels of Zn in crops or pasture. Low quality sewage sludge application should be reduced in frequency or doses, allowing soils to get benefits of increasing soil organic matter without strong changes in Zn soil contents.

Can formula apportionment really prevent multinational enterprises from profit shifting? The role of asset valuation, intragroup debt, and leases

The European Commission has been supporting a transition from a system of separate accounting to formula apportionment. After its 2011 draft directive was rejected by the Council, the Commission presented two new draft directives in October 2016, one stipulating rules for a common tax base and another the terms for consolidation and apportionment. The aspired system of unitary taxation is considered more resistant to profit shifting and assumed to reduce compliance costs. However, there are also doubts about the extent, to which such a system will eradicate tax-planning activities of MNEs. Other concerns have arisen about the practical issue of enforcing uniform rules for asset valuation throughout the member states. We use a dynamic model of tax accounting based on neoclassical investment theory and effective tax rates to determine to what extent formula apportionment mitigates the efficiency of typical profit-shifting strategies. We focus on the roles of transfer pricing and intragroup debt financing (through loans and leases) under both separate accounting and formula apportionment. We also take into account a possible leeway for inconsistent valuation. Our results show that instead of eliminating tax planning strategies, the proposed system might simply induce a shift from manipulating reported profits to influencing the apportionment key. Inside the European Union, the CCCTB may be able to render thin capitalisation rules and transfer pricing documentation redundant. However, formula apportionment invites for new forms of tax planning. It is therefore essential to give credit to these new kinds of tax incentives when implementing a system of unitary taxation.

The EU 2018 Draft Directive on UTPs in B2b Food Supply Chains and the Polish 2016 Act on Combating the Unfair Use of Superior Bargaining Power in the Trade in Agricultural and Food Products

The Polish Act on Counteracting the Unfair Use of Superior Bargaining Power in the Trade in Agricultural and Food Products was adopted on 15 December 2016 and entered into force on 12 July 2017. The new legal framework resembles, in some places, the legal rules contained in the 2007 Act on Competition and Consumer Protection, elsewhere resembles the 1993 Act on Combating Unfair Competition. Therefore, the article reviews the new Polish provisions taking into account the previous system including the prohibition of the abuse of a dominant position and the prohibition of unfair competition. This publication is intended to point out the peculiarities that characterize the new provisions. Readers will find here an assessment of recent Polish developments and suggestions for further development of the Polish legal framework in the EU context. In particular, the review critically analyses some solutions of the 2018 EU draft Directive on unfair trading practices in business-to-business relationships in the food supply chain and shows what amendments to the Polish legal framework will be needed, if the Directive is adopted in the current version

Opening the Door for Opportunistic Use of Interim Financing. Critical Assessment of the EU Draft Directive on Preventive Restructuring Frameworks

The draft of the EU Directive on Preventive Restructuring Frameworks and Second Chance (the Directive) provides rules for adopting reorganisation plans in order to avoid insolvency. The draft Directive also provides rules on the related problem of interim financing. According to the draft Directive, interim financing should be encouraged and not be made subject to clawback unless parties have committed fraud or acted in bad faith. The Directive thereby fails to recognise that finance transactions are too diverse in nature to provide the company and its financial creditors with a transaction avoidance free period. If the Directive is adopted in its current form, it will open the door for opportunistic use of interim financing by both debtors and professional lenders. It will allow debtors to make final bets with other people's money and will also allow for conduit pipe financing which will reduce the exposure of existing shareholders. Lenders will also be able to make opportunistic use of the rules, most notably in the form of cross-collateralisation and aggressive loan-to-own strategies under the guise of interim financing. There are several possible solutions to the potential for opportunistic use. The courts could be involved ex ante. This would, however, turn the Directive into a fully-fledged court supervised procedure instead of the currently intended preventive restructuring procedure which avoids such court procedures. An alternative would be to simply take out the provisions on interim financing. Another possibility would be to limit the protection offered in the Directive to cases of new security against new money necessary and used for the continuation of the business.

CC(C)TB and International Taxation

On 25 October 2016, the European Commission released two proposals: one on a Common Corporate Tax Base (COM (2016) 685 Final.) (‘the CCTB Draft’) and one on a Common Consolidated Corporate Tax Base (COM (2016) 683 Final.) (‘the CCCTB Draft’). If these draft directives (‘the CC(C)TB Drafts’) were to be adopted, they would significantly change the tax landscape for companies operating throughout the European Union as well as for companies which are established in a third country but perform activities within the EU. The goal of this article is not to provide for an overall description of the features of the CCTB and the CCCTB Drafts. It is rather to give an overview of the main provisions containing a cross-border element and to assess to what extent these new instruments may possibly collide, not only with EU primary law, but also with bilateral (or even multilateral) conventions on double taxation. As a matter of fact, the CC(C)TB drafts do not only cope with the definition of new base rules for taxation of corporations acting within the European Union. Many corporations established in the European Union have branches and subsidiaries in other EU Member States as well as in third countries. Conversely, many corporations established outside the European Union perform their activities on the European market through branches and subsidiaries. It is therefore clear that by changing the rules applying to the definition of corporate income and to cross-border activities, the CC(C)TB Directives would indirectly impact the tax burden of multinational enterprises. Besides, important provisions contained in the CC(C)TB drafts apply explicitly to income which have their source outside the European Union. The question how these new European territoriality rules will coexist with international tax treaties is therefore crucial to assess the impact of the harmonization process within the European Union. The relationship between CC(C)TB and international taxation is however a very complex matter to study, as it raises both general questions regarding the interaction between different sources of normativity (treaties vs directives; treaties vs fundamental freedoms; directives vs fundamental freedoms) and very technical questions linked to the way the proposed provisions are worded. Potential problems of incompatibility are all the more numerous as one of the major feature of CCTB and CCCTB consists in the enactment of new rules regarding territoriality and tax avoidance, which may worsen the taxpayer’s situation compared to existing rules (even compared with the anti-tax avoidance directive). Provisions affecting international taxation are spread in different sections of the CCTB and CCCTB drafts, with the effect that a coherent vision of the global impact of these drafts on international taxation is not easy to unveil. This complexity of the topic explains why the authors of this article consider that a necessary preliminary step in the study consists in displaying, in a first section, a broad overview of the relationships between the CC(C)TB Drafts and the EU and international legal orders. This will provide an opportunity to assess how these draft directives interact, not only with fundamental freedoms, but also with double taxation treaties. The authors will refer to those principles throughout the article, when potential conflicts are identified. A second section will be devoted to the scope of the CC(C)TB Drafts and to the analysis of their impact on situations involving a third country. The goal of this section will be to determine to what extent corporations which are either established in a third country or perform their activities in such a country are actually covered by the provisions of the draft directives. The third section will provide more details on the territoriality rules which are laid down by