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7719 results in Intersentia

Page 226 of 386

  • Chapter 8 - International Cooperation in the Area of Confiscation

  • from Part III - The Legal Framework for International Cooperation
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 225-236

  • Summary

    INTRODUCTION

    Obviously, close international cooperation is a fundamental key to a successful policy of asset recovery, as strong national powers of confiscation are significantly weakened if they cannot be enforced abroad. Technological developments (for example instant electronic transactions and banking) and the increasing internationalisation of society in general, render it absolute necessary that law enforcement agencies may investigate and search for assets across borders in an efficient and speedy way. The EU area is in this respect particularly vulnerable against the background of the free movement and the abolishment of internal border controls. Consequently, it is relatively easy for criminals to transfer and hide illegal proceeds in other Member States.

    Various instruments on international cooperation in criminal matters have been adopted over the years. Some of them generally regulate the area of requests for legal assistance, whereas others are specifically drafted with respect to cooperation within asset recovery or regarding certain types of criminality. Traditionally, international cooperation in criminal matters is built upon the system of mutual legal assistance (“MLA”). Hereby a requesting State sends a formal request for legal assistance to a requested State, which will decide whether such a measure may be executed on the behalf of another State. It is based on reciprocity. Common grounds for refusal of such requests are, for example, a lack of double criminality, ordre public or exceptions for fiscal and political offences. Generally speaking, the regime of MLA is considered to be slow and cumbersome, as requests usually go through diplomatic channels or central authorities (often the Ministry of Justice). Even if there have been improvements in this area in recent years to facilitate the execution of requests and provide for faster procedures, many difficulties remain. Within the EU, some legal instruments have therefore been adopted in order to provide for improved and more advanced forms of MLA between the Member States. The international and EU instruments on MLA which may be applied for requests in the area of asset recovery will be described in Section 8.2.

  • Chapter 9 - Cross-Border Asset Tracing and Exchange of Information

  • from Part III - The Legal Framework for International Cooperation
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 237-262

  • Summary

    THE LEGAL FRAMEWORK

    REQUESTS WITHIN THE FRAMEWORK OF INTERNATIONAL POLICE COOPERATION

    During the investigative stage any assets must be identified, searched for, located and documented. This is a multifaceted activity with overlapping objectives as criminal assets must not only be found, but it may also be necessary to acquire sufficient evidence to link the asset to an unlawful activity or to the criminal offence. A request for assistance at the investigative stage may be of varied character, but common requests concern for example:

  • – to obtain information on whether any assets are present in another State,

  • – to trace and search for specific assets abroad, and/or

  • – to gather evidence needed to support a confiscation order.

    • The tracing of criminal assets is not an easy task in itself, and there is a significant need for specialised and trained units:

    the multiple forms assets can take means that investigators must have an understanding of a wide range of spheres, including financial markets, corporate and commercial structures, banking practices, property and insolvency law, and online currencies in order to successfully trace the path of a converted asset.

    Financial investigations are conducted by different authorities, for example police forces, prosecutors or investigating magistrates. These authorities may need access to different types of information regarding property, for example land registers, company registers, records on vehicles and data from insurance companies or tax authorities. Transnational exchange of information or intelligence in confiscation cases may take place in many different ways, but a significant part of the initial investigation takes place within the framework of international cooperation between police forces. Often it is possible to directly share intelligence or data which is legally available to the agencies through domestic databases. There are currently numerous channels for informal and formal police-cooperation, which may be used in order to search for assets abroad. Examples are liaison officers, Europol, Interpol or the CARIN network. The specialised framework of the national asset recovery offices set up by the FD on Asset Recovery Offices is also an important cooperation channel.

  • Chapter 2 - The Impact of Free Movement of Goods and Services on Private Law Rights and Remedies

    • By Paul Verbruggen, Assistant Professor of Global and Comparative Private Law, Tilburg University, the Netherlands
  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 47-92

  • Summary

    INTRODUCTION

    The free movement of goods and services are central to the functioning of the internal market of the European Union (EU). The provisions of the Treaty on the Functioning of the European Union (TFEU) governing the free movement of goods (Article 28 et seq TFEU) and services (Article 56 et seq TFEU) principally address Member States, though may under certain circumstances also extend to private actors. While many scholars have devoted their attention to analysing those circumstances and the way in which they have been articulated in the case law of the European Court of Justice (‘Court of Justice’), considerably less attention has been paid to the exact consequences in private law of the application of the free movement of goods and services. Does such application to private law relationships create, modify or extinguish rights and obligations, does it affect existing private law remedies, and if so, how? Not surprisingly, EU lawyers do not regard these consequences as part of their core business, yet scholars of private law, and national courts dealing with civil matters in particular, grapple with the questions that follow from the application of the free movement of goods and services to private law disputes.

    It is argued in this chapter that the impact of the free movement of goods and services on private law rights and remedies, and the underlying relationships that are governed by them, is pervasive and multi-faceted, yet not well understood in legal scholarship and practice. EU lawyers conceptualise – and do so rightly – the cases brought before the Court of Justice on free movement of goods and services, as cases of internal market law. However, if we remember that trade in goods and services typically takes place based on private law arrangements, namely contracts, we must admit that the decisions rendered by the Court will also have an impact on underlying contracts and related private law rights and obligations of individuals. Even if a contractual relationship is absent in the context, it was at least the potential of a private party to engage in a contractual relationship with a party based in another Member State that was at stake, and thus led to the decision by the Court.

  • Preface

  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp v-vi

  • Summary

    The EC Treaty, so the European Court of Justice found in its judgment in Costa v ENEL, created its own legal order which has been integrated into the legal systems of the Member States and which their courts are bound to apply. This legal system is binding on both the Member States and their citizens. In Van Gend en Loos the Court of Justice expressly took the ground that EU law can have direct effect. Independently of the legislation of Member States it not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way on individuals as well as upon the Member States and upon the institutions of the Community. In subsequent judgments the Court made it clear that this includes rights and obligations of a private law nature.

    This volume has for its theme the interplay and influence exerted on approaches and legal concepts of private law, including property rights law, by primary EU law, particularly internal market law. The starting hypothesis is that the Court of Justice (also, the Court) has developed concepts in private law cases which are different in substance from the concepts which exist in the private law systems of the Member States. The project aims to present developments in current law of which EU lawyers and private lawyers generally are unaware. This book offers ground-breaking analyses of the main private law concepts (the person, property, contract and tort, and remedies) as they are used, created or adjusted by the Court. Each analysis results from insights obtained into the substantive meaning of the concepts deployed in the Court's case law, disconnected from national meanings of such concepts. The direction of this analysis is from the cases to the concepts, not the other way around: the cases and the facts behind the cases are the starting point. In this ways the analyses aim to avoid preconceptions based on national private law systems.

  • Chapter 4 - The Impact of Competition Law on the Private Law Concepts of Nullity and Damages

    • By Iris Benohr, Lecturer in Law, Queen Mary University of London, United Kingdom
  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 133-164

  • Summary

    INTRODUCTION

    Competition law and contract law have been traditionally regarded as independent areas, with limited interactions. While sharing some common objectives and functions such as promoting economic freedom, the two areas fulfil different roles in regulating commercial activity and the behaviour of market actors. However, in practice EU competition law seems to have an increasingly major impact on private law, as a number of key cases of the European Court of Justice (‘Court of Justice’) have indicated. This influence may sometimes conflict with national principles, creating tensions which are in turn stimulating new legal developments.

    This chapter analyses the intersections between EU competition law and contract law, focusing mainly on Article 101 of the Treaty on the Functioning of the European Union (TFEU), which has a private law dimension and can directly affect the validity of anti-competitive agreements. A number of key competition law cases will be assessed to explore how recent court rulings have influenced and shaped private law concepts, such as nullity of unlawful contracts, damages and the protection of the weaker contractual party.

    This chapter first examines cases where the court clarified the notion of contractual nullity in competition law disputes. While nullity is an important remedy in competition law, a comprehensive analysis of its influence on national law, which takes into account the intricate relationship between effective competition and contractual freedom, is still lacking. This chapter aims to shed some light on this issue, assessing the concept of nullity developed by the Court of Justice and its effects on national law.

    A second topic treated in this chapter is the right to claim damages and the principle of effective protection in EU case law. Particular attention will be given to the multi-party dimension in the seminal Courage and Manfredi cases and the impact of these cases on national law, assessing new legislative developments.

    The chapter concludes by arguing that the Court of Justice has actively shaped the concepts of nullity and damages in competition law disputes, leaving it to Member States to determine the consequences of unlawful contracts within the realm of Article 101 TFEU. As a result, the effects of invalid contracts differ considerably depending on the jurisdiction and the particular circumstances of the case.

  • Chapter 5 - The Impact of Article 101(2) TFEU Nullity on Private Law

    • By Caroline Cauffman, Associate Professor of Private Law, Maastricht University, the Netherlands
  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 165-206

  • Summary

    INTRODUCTION

    Article 101(2) is the only provision of the Treaty on the Functioning of the European Union (TFEU) dealing with the private law consequences of conduct by individuals. Article 101(2) TFEU provides that agreements and decisions infringing Article 101(1) and not being exempted under Article 101(3) TFEU are automatically void. Article 101(1) TFEU prohibits ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market’. The voidness or nullity referred to in Article 101(2) is an autonomous concept of EU law. However, the TFEU does not give any further information on the characteristics or the consequences of the automatic voidness under Article 101(2) TFEU.

    The present chapter aims to analyse the case law of the European Court of Justice (‘Court of Justice’) in order to learn more about the nature, the scope of application, the characteristics and the consequences of the Article 101(2) nullity and its impact on the national law of the Member States. Attention will also be paid to the application of Article 101(2) nullity by national courts and to the analysis of the said article in legal scholarship, as well as to the similarities and differences with national concepts of nullity and the concept of non-bindingness that is used in the Unfair Contract Terms Directive (UCTD). No attention will be paid to the so-called theory of provisional validity which applied before the entry into force of Regulation 1/2003, when Article 101(3) was not directly applicable by national courts. Equally, the issue of the impact of the nullity of an agreement or clause for infringement of Article 101(1) TFEU on related contracts will not be addressed.

    First, the character of Article 101(2) nullity as an EU private law sanction will be highlighted. Subsequently, the scope of application of Article 101(2) nullity will be investigated. Then the typical characteristics of Article 101(2) nullity will be further examined: its automatic and absolute character and its retroactive effect. After this, attention will be paid to the impact of the nullity of a clause of an agreement or decision on the remainder of that legal act and to the possibility for national courts to modify void agreements in order to render them valid.

  • Chapter 1 - Primary EU Law and Private Law Concepts

  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 1-46

  • Summary

    INTRODUCTION

    The present chapter provides an explanation of the field of research, its background, the approaches to studying it and its aspirations. On the basis of discussions, exchanges and collaboration with the chapter authors, meetings with the authors, commentators and the editors and past, current and future research of the editors we add observations presented around four important concepts of private law: (i) the person (section 4); (ii) property (section 5); (iii) contract and tort (section 6); and (iv) remedies (section 7). In section 8 we shed light on lines of development and reasoning within current EU private law which to our understanding build an explanatory framework and determine the direction of the debate in the near future. The (no longer surprising) finding is that in issues governed by primary internal market law, internal market interests tend to prevail over other interests. Primary internal market law transforms private law and horizontal legal relationships. This, however, is not the full story. At the same time expectedly and unexpectedly, room is created for further transformation. Once market freedoms become integrated, they open the door to the introduction of fundamental rights issues. In their turn, fundamental rights related interests may be relied upon to open up the market. In intellectual property law, the fundamental right to information of third parties is introduced in order to grant access to the market while it limits the property rights of the intellectual property right-holder. Also for other parts of internal market law, the European Court of Justice (‘Court of Justice’) covers in its reasoning a broad spectrum of interests. The result is, for example, an interaction between the freedom of speech and the freedom of establishment.

    It is crucial to stress the double consequence of the instrumentalisation of private law. The introduction of internal market law in horizontal relationships provides for a chance to introduce fundamental rights issues. The relation to the open market enables judges and parties to review a horizontal relationship against a broad spectrum of interests. Therefore it is possible that interests derived from human rights, including the social, will be (re-)embedded. State aid law provides for another example. EU law requires restoration of state aid illegally granted. It does not require more than restoration.

  • Chapter 3 - The Impact of Free Movement of Capital on Private Law

  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 93-132

  • Summary

    INTRODUCTION

    Although the free movement of capital is a relatively young fundamental freedom compared to the other existing freedoms laid down in the Treaty on the Functioning of the European Union (TFEU), it has already proven to have had a remarkable impact on national company law. With regard to the relevance of the open corporation in the EU, this is no surprise: the vast majority of European company law harmonisation measures have been dedicated to this type of company: almost all of the, up to now, 14 company law Directives address the open corporation (some of them even exclusively the public open corporation), for whose functioning the free tradability of shares at a regulated stock market is the essential precondition. Additionally, it is the open corporation that was established as an optional model rule for the internal market, the Societas Europea (SE). The SE has proven to be the most successful European company, whereas the European Economic Interest Grouping (EEIG) never gained particular importance, and the project of the Societas Europea Privata (SPE) Statute (an optional model for a closed company on an EU level) has even been abandoned by the Commission. There is no doubt that capital market freedom is of fundamental importance for those companies whose shares are traded on the stock market. As the ‘big players’ of the economy, the companies that operate on a European and international level are typically organised in that form; it seems to be a logical consequence that the focus of the EU law-making effort has been directed primarily towards the open corporation.

    The development of capital market freedom through the European Court of Justice (‘Court of Justice’) is well in line with this secondary law approach (ie because the free movement of capital is of special interest to those companies that are able to raise capital on capital markets). In contrast to this, the freedom of establishment applies to the company in general, irrespective of the particular form in which it is organised. Article 49 TFEU thus protects (in accordance with Article 54 II TFEU) all companies or firms constituted under civil or commercial law, including cooperative societies and other legal persons governed by public or private law.

  • Chapter 6 - The Impact of EU State Aid Law on National Private Law

    • By Pablo Ibanez Colomo, Department of Law, London School of Economics and Political Science, United Kingdom
  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Book:
    Primary EU Law and Private Law Concepts
    Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017, pp 207-240

  • Summary

    INTRODUCTION

    Articles 107 and 108 of the Treaty on the Functioning of the European Union (TFEU) govern the relationship between the European Commission (‘the Commission’) and EU Member States regarding the award of subsidies and other measures having an equivalent effect. Strictly speaking, EU state aid law is not concerned with relationships between individuals. The recipient of aid, which is oft en a private firm, is not the subject of the obligations stemming from Articles 107 and 108 TFEU. In proceedings before the Commission, the recipient is an ‘interested party’ alongside its rivals and other third parties.

    Pursuant to Article 108(3) TFEU, it is for the Member State to inform the Commission about its plans to implement any measure falling under the scope of Article 107(1) TFEU. By the same token, it is for the Member State to take the necessary measures to recover the aid that has been granted unlawfully, that is, in breach of the notification (or ‘stand-still’) obligation.

    In spite of the above, there are several reasons why EU state aid law has an impact on contractual and non-contractual relationships. The first and most obvious one is economic in nature. One of the objectives of Articles 107 and 108 TFEU is to prevent the distortions of competition that typically result from the award of subsidies and similar measures. At least to some extent, EU state aid law is a complement to Articles 101 and 102 TFEU, which deal with rivalry between firms. The competitors of aid recipients are likely to become involved in proceedings before the Commission, sometimes as complainants, 5 or to seek relief before national courts. For instance, it is possible for competitors to claim damages for a breach of the principles set out in Articles 107 and 108 TFEU. From this perspective, EU state aid law can be seen as a potential source of noncontractual obligations.

    The second reason, of particular relevance for the purposes of this chapter, is that state aid may be awarded by means of a contract or a similar mechanism. An agreement between a public body and a firm may be caught by Article 107(1) TFEU and as such be subject to the principle of incompatibility set out in that provision.

Primary EU Law and Private Law Concepts
  • Edited by Hans-Wolfgang Micklitz, Carla Sieburgh
  • Published by:
    Intersentia
    Published online:
    27 September 2018
    Print publication:
    03 August 2017
  • Primary EU Law and Private Law Concepts starts with the hypothesis that the European Court of Justice has developed concepts in private law cases which differ in substance from the concepts that exist in the private law systems of the Member States. It aims to present developments in the current law of which EU lawyers and private lawyers generally are unaware. It offers ground-breaking analyses of the main private law concepts (the person, property, contract and tort and remedies) as they are used, created or adjusted by the Court. Each analysis results from insights obtained from the substantive meaning of the concepts deployed in the Court's case law, disconnected from the national meanings of such concepts. The direction of this analysis is from the cases to the concepts, not the other way around: the cases and the facts behind the private law relationships are the starting point. In this way the analyses show in detail how primary EU law influences private law relationships.This book will be useful for academics, practitioners and students interested in EU private law.'EU law's very identity is shaped by its conferral of rights and obligations on individuals but it has conventionally been public law, not private law, that has been the main site for engagement between EU and national law. This collection redresses that imbalance, and shows how primary EU law has induced mutation in concepts of private law. The law of the internal market is inevitably at the forefront, but so too is the protection of fundamental rights.'Stephen Weatherill, Jacques Delors Professor of European Law, University of Oxford'This is a ground-breaking book. [The editors'] approach presents important results both for legal scholarship and legal practice and underlines the necessity of more cooperation between EU law and private law scholars.'Arthur Hartkamp, Professor of European Private Law, Radboud University, NijmegenCarla Sieburgh is a Research Professor in Private Law at Radboud University Nijmegen, and an expert in the law of obligations and the interaction of EU law, human rights and private law.Hans-W. Micklitz is Professor of Economic Law at the European University Institute and Distinguished Professor of the Academy of Finland at the University of Helsinki. He has also been a visiting professor at the University of Michigan Ann Arbor and the Somerville College at the University of Oxford. He holds degrees in law and sociology.IntersentiaIntersentia

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