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Guido Holzhauser, Carolin Sutter - Debt Recovery in Europe

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Guido Holzhauser (ed.), Carolin Sutter (ed.)

Debt Recovery in Europe

Series: Schriftenreihe des Heidelberg Institute for European Business Law e.V.

Volume 1 2007

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Annexe – Forms for national legal proceedings S. 456-502

„… 456 Annexe Forms for national legal proceedings 1 Austria Andersen_Tabellen.indd 456 04.07.2007 …” „… name (or form of legal entity): Occupation: street and number: Domicile: L- (postal code and …” „… : DEBTOR 9 10 11 12 13 Name (or legal entity): First name (or form of legal entity): Occupation …”

Joachim Weber GERMANY S. 203-230

„… opposition can therefore also be filed in another form; the only formal requirement is that the notice of …” „… admissible if a legal question has to be solved, which has considerable importance as far as the protection …” „… residence. In the case of a legal entity, its registered office is conclusive. Where an Act specifically …”

Bényi Orsolya HUNGARY S. 231-245

„… legal dispute evidencing in a written form is very important. So one of the most effective ways of …” „… are moved from local to county courts. It has extended the possible scope of legal remedy and …” „… ; • disputes in matters concerning legal relationships arising in relation to stocks; • actions arising from …”

Belinda Čačić CROATIA S. 107-127

„… international agreements and conventions that are part of the Croatian legal system. Further, Croatian …” „… Constitution and laws is entrusted also with other legal functions. Regarding the court jurisdiction …” „… , according to the Law on Civil Procedure215, Croatian legal system in general has several types of court …”

Titelei/Inhaltsverzeichnis S. 1-17

„… of Legal Science (Bond University, Australia), who has essentially contributed to the form and …” „… 444 Annexe – Forms for national legal proceedings 456 9 Table of Contents Preface 5 …” „… information 442 Part 4 – Results 443 Part 5 – Synopsis 444 Annexe – Forms for national legal proceedings …”

Karin Sauter, Ursina Brack, Corinne Meier SWITZERLAND S. 409-424

„… : http://www.stadtzuerich.ch/internet/basta/ba/home.ParagraphContainerList.ParagraphContainer0.ParagraphLis t.0015.File.doc/Betreibungsbegehren%20als%20Formular.doc 705 The forms are …” „… subdivided into various municipalities. The legal system is also structured on these three levels: federal …” „… over specific legal issues: e.g., rent courts, labor courts, and commercial and trade courts. As a …”

Bettina Schütz-Gärdén SWEDEN S. 394-408

„… Sweden, there is no formal necessity to involve a lawyer with any legal or court proceedings. Even …” „… suggestions Even if not formally required for any legal proceeding, it will be recommendable to a foreign …” „… admissible if the case raises a question of legal and prejudicial interest.641 640 Rechtsanwältin och …”

Felix Rackwitz UKRAINE S. 425-442

„… (contracts between legal entities shall be in written form, signed and sealed by authorized representatives …” „… 425 UKRAINE By Felix Rackwitz733 1 Civil justice 1.1 Judicial system The principal legal acts …” „… resulting from civil law, labour law and other legal relationship unless other courts are competent …”

Maarja Torga ESTONIA S. 158-170

„… legal person can be filed with the court of its seat. If the residence of a natural person is not known …” „… in the proceedings in person or through a legal representative (an advocate or a person who has …” „… completed the national curriculum of academic legal studies). Personal participation in a matter does not …”

Barbara Pogacar AUSTRIA S. 44-67

„… ; • disputes concerning the legal relationship among the shareholders of a commercial company and between a …” „… serves as last resort. An appeal to the Supreme Court is admissible if a legal question has to be solved …” „… with the court in whose jurisdiction the defendant is domiciled. A complaint against a legal entity …”

Vojtěch Trapl CZECH REPUBLIC S. 128-141

„… from them. However, no form is prescribed. It is obvious that the claim must be legal consequent with …” „… stipulated by law242. The reasons of an extraordinary appeal are an incorrect legal appreciation of the …” „… . This extraordinary appeal should be limited only to cases of general legal significance243. The …”

Irina Stoeva BULGARIA S. 88-106

„… 88 BULGARIA By Irina Stoeva208 1 Civil justice 1.1 Judicial system Bulgarian legal system is …” „… into consideration by courts and parties. The primary legislative acts setting out the legal framework …” „… person (natural person or legal entity) is entitled to bring a claim before the court3.1.: • for …”

María Teresa Fernández Mateos, Pedro Tent Alonso SPAIN S. 371-393

„… information on the description of proceedings, forms, formalities etc. • http://www.tribunalconstitucional.es …” „… against legal persons may be brought before the Court corresponding to the place where they have their …” „… registered office or where the legal relationship in dispute originated or should take effect, provided that …”

Yelena Kvjatkovska, Marina Dombrovska LATVIA S. 246-264

„… rights and lawful interests of natural and legal persons.437 1.2 Appeals system Civil matters are …” „… residence. Actions against legal persons shall be brought in a court in accordance with their location …” „… (legal address). Actions against defendants whose place of residence is unknown, or who have no …”

Ute R. Gotha ROMANIA S. 334-345

„… request. There is no form to be used. 7.8 What are the main steps of legal insolvency proceedings? If …” „… instances in relation to civil and commercial matters: The local courts (Judecatorie) form the first …” „… the legal dispute is at the parties' unrestricted disposal. Art. 154 of the Romanian Act on Private …”

Jos van der Wijst THE NETHERLANDS S. 303-316

„… . There is no standard form. 7.8 What are the main steps of legal insolvency proceedings? The main steps …” „… that can be heard [also state what a witness can state]. Dutch courts do not use a standard form. A …” „… create an equality of arms with the court and the other party. 4 Legal expenses and lawyer’s fees 4.1 …”

Guy Loesch, Pierre Hurt LUXEMBOURG S. 289-302

„… Luxembourg internal legal order, jurisdiction clauses are valid if they do not depart from a compulsory …” „… . 1. 518 In case the claimant is a legal entity, the writ must as well indicate the kind of the …” „… . In commercial matters, the parties may be either represented by a legal counsel or any other person …”

David Haines, Tanya Trinder ENGLAND & WALES S. 142-157

„… County Court. The relevant form to be filed is Form N1 (specimen attached). In addition, Particulars …” „… page 2 of the Claim Form or, alternatively, (and as is more usual) it can be produced as a separate …” „… document and attached to the Claim Form). The Claim Form and Particulars of Claim must be filed (with …”

Vilija Vaitkute Pavan, Egle Kačenauskaite LITHUANIA S. 265-288

„… tort, place of contractual performance, place of legal entity’s branch or the plaintiff’s domicile468 …” „… – economic entities may agree in writing to have disputes arising out of contractual legal relations in …” „… counsellors of advocates with a few exceptions: legal persons may be represented by their employees in lower …”

Guido Holzhauser, Aila Anderson – European Legal Framework S. 25-43

„… 25 Part 2 – European Legal Framework 1 Applicable substantial law 1.1 According to German …” „… the location of the real estate. 21 1.1.2 Non-contractual obligations According to German legal …” „… private international law the freedom of choice of law only refers to state legal order.37 Consequently …”

Ardavan Amir-Aslani FRANCE S. 187-202

„… circumvent the Court of Appeal, even if the amount involved is higher than the legal threshold. This last …” „… which has jurisdiction for the case and the purpose of the action with factual and legal arguments …” „… attorney before the Supreme Court. 4 Legal expenses and lawyer’s fees 4.1 Who bears these costs? A …”

Olga Sztejnert POLAND S. 317-333

„… register • claims on cancellation resolutions of the companies and other legal entities 6) claims on …” „… proceedings). If the lawsuit is raised by a professional lawyer (advocate, legal advisor) the court fee has …” „… (generally: every dispute) start with a claim. Some claims have to be raised in a form (i.e. claims of the …”

Alexandre Geulette BELGIUM S. 68-87

„… Belgian Judicial Code. 70 1.2 Appeals system The Belgian legal order has two degrees of jurisdiction …” „… Presidents of the former as well as certain matters introduced directly before it (e.g. rehabilitation in …” „… President of the former. • The Supreme Court (Cour de cassation/Hof van Cassatie): the Supreme Court …”

Guido Holzhauser, Aila Anderson – Synopsis S. 444-455

„… filing a claim form together with court fee with the competent court. Not mandatory. Estonia (EE …” „… enforceable title contacts the bailiff and files an execution application form. There is one type of …” „… court (no special forms). Mandatory in civil law disputes before the high courts of justice, the …”

Minna Vähäkylä, Johan Roman FINLAND S. 171-186

„… hears legal disputes relating to collective agreements or collective civil servants' agreements. The …” „… place where the defendant is domiciled and an action against a legal person has to be filed with the …” „… piece of evidence; any claim for the compensation of legal costs; and the basis for the jurisdiction of …”

Tomaž Petrovič, Jasna Habič SLOVENIA S. 355-370

„… dispute against a legal entity is vested in the court within jurisdiction of which the defendant has its …” „… from a specific legal relationship.596 3 Introduction of lawsuits and involvement of lawyers 3.1 How …” „… parties must be represented by an attorney ('odvetnik'), unless such party or his/her legal …”

doi.org/10.5771/9783845205458

Matthias Lehmann, Christoph Kumpan - European Financial Services Law

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Matthias Lehmann (ed.), Christoph Kumpan (ed.)

European Financial Services Law

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2019

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Article 96 Consistency on legal form S. 1438

„… their powers. See Level 2 and 3 measures. Article 96 Consistency on legal form For the purpose of …” „… pursuing its activities, a UCITS may use the same reference to its legal form (such as investment company …” „… that could be misled if the legal form is translated into the language of the host Member State. A …”

Article 27 Authorisation, legal form, registered office S. 1365-1366

„… taking up business Article 27 Authorisation, legal form, registered office Access to the business of an …” „… UCITSD Dirk Zetzsche and Dominik Nast 1365 1 2 3 Member States shall determine the legal form which an …” „… depositary is to safekeep the financial instruments issued in a nominative form and registered with an issuer …”

Article 2 Definitions S. 1104-1114

„… alia as companies upon which a controlling influence can be exerted, irrespective of their legal form …” „… business associations without legal personality’ and also ‘trusts’. The former refers to partnerships and …” „… ’ means bonds or other forms of transferable securitised debts, with the exception of securities which are …”

Article 2 Scope S. 1467-1469

„… law, under statute, or has any other legal form; (c) the legal structure of the AIFM. 3. This …” „… of the EU, including, in particular, investment funds set up in corporate form with own their legal …” „… which establishes the contractual type of fund. AIFMD captures all AIF irrespective of their legal form …”

Article 29 Minimum capital, organisation, key people, authorisation and withdrawal of authorisation S. 1366-1369

„… Member States shall determine the legal form which an investment company must take. The registered …” „… need to determine the legal form in which an investment company is set up, Art 1(3) of UCITSD requires …” „… that the legal form be set up “by statute”. The competent authority must review the application of the …”

Article 4 Definitions S. 22-34

„… ) they are subject to equivalent prudential supervision appropriate to their legal form. However, where a …” „… partnerships and other forms of companies that do not have legal personality under national law. It is left to …” „… supervision appropriate to their legal form.7 The first point requires a liability regime that is at least as …”

Article 47 Equivalence decision S. 566-571

„… recognition and accepting different legal forms and substance in line with different legal and supervisory …” „… examination procedure referred to in Article 51(2) in relation to a third country stating that the legal and …” „… implementing measures adopted under this Regulation and under those Directives and that the legal framework of …”

Article 95 Implementing legislation S. 1437-1438

„… on legal form For the purpose of pursuing its activities, a UCITS may use the same reference to its …” „… legal form (such as investment company or common fund) in its designation in a UCITS host Member State …” „… Secondarily, Art 96 of UCITSD protects investors that could be misled if the legal form is translated into the …”

Article 1 S. 576-577

„… ’ shall mean companies and other legal persons and any undertaking whose securities are the subject of an …” „… interest of legal certainty, Art 1 provides legal definitions of some important terms, namely (a) ‘issuers …” „… collective investment undertaking’, and (f) ‘participating interest’. The legal definitions correlate with …”

Article 97 Appointment and qualifications of competent authorities S. 1438-1439

„… their powers. See Level 2 and 3 measures. Article 96 Consistency on legal form For the purpose of …” „… pursuing its activities, a UCITS may use the same reference to its legal form (such as investment company …” „… that could be misled if the legal form is translated into the language of the host Member State. A …”

Article 71 Publication of decisions S. 368-371

„… it a legal person from performing its statutory functions, whereas a natural person may still …” „… on annual turnover of a legal person (point (f)), but may be determined by law only when imposed …” „… least 15 [or 2]% of the total annual turnover” of a legal person (see Article 30(2)(j)(i) and (ii) of …”

Article 1 Subject matter and scope S. 1711-1720

„… improves stability of financial markets by providing a simple, speedy and uniform legal system for …” „… Legal Studies 855, 868, 870. 2 This is the general justification for treating financial collateral under …” „… bondholders or holders of other forms of securitised debt or any institution as defined in points (a) to (d …”

Article 1 Scope and UCITS definition S. 1304-1317

„… in any legal form. A ‘fund’ can exist when one account, in which all assets are managed, is deemed a …” „… determines the legal elements which must be fulfilled. Context The UCITSD has a certain relationship with …” „… did not deserve its name, was replaced by a twopage-form (for non-complex funds) and three-page-form …”

Article 4 Definitions S. 1471-1477

„… appointment is responsible for managing the AIF (external AIFM); or (b) where the legal form of the AIF …” „… behalf of the AIF to manage the AIF. AIF established in a legal form that does not allow the AIF to …” „… Directive 2009/65/EC; (b) ‘AIFMs’ means legal persons whose regular business is managing one or more AIFs …”

Article 5 Determination of the AIFM S. 1477-1478

„… ); or (b) where the legal form of the AIF permits an internal management and where the AIF’s governing …” „… conceivable where the legal form of the AIF permits an management of the AIF its own corporate functions; this …” „… . Luxembourg SICAV/ SICAFs) but is also conceivable for other legal forms, such as partnerships. If the …”

Article 2 Definitions S. 1317-1323

„… company, the regular business of which is the management of UCITS in the form of common funds or of …” „… ; (g) ‘branch’ means a place of business which is a part of the management company, which has no legal …” „… links’ means a situation in which two or more natural or legal persons are linked by either: (i …”

Article 9 Legitimate behaviour S. 705-711

„… from the mere fact that a legal person is or has been in possession of inside information that that …” „… or disposal, where that legal person: (a) has established, implemented and maintained adequate and …” „… influenced the natural person who, on behalf of the legal person, acquired or disposed of financial …”

Article 12 Procedures on the notification and disclosure of major holdings S. 1156-1163

„… adopt these ITS formally. ESMA has adopted a ‘standard form for notification of major holdings’, but in …” „… conditions laid down in Article 10, and of the natural person or legal entity entitled to exercise voting …” „… legal person referred to in Article 10, (a) learns of the acquisition or disposal or of the possibility …”

Article 17 Exemption for market making activities and primary market operations S. 924-929

„… that the legal and supervisory framework of a third country ensures that a market authorised in that …” „… which are subject to effective supervision and enforcement in that third country. The legal and …” „… the form of insider dealing and market manipulation. 3. Articles 7, 13 and 14 shall not apply to the …”

Article 3 Short and long positions S. 888-892

„… transaction is to confer a financial advantage on the natural or legal person entering into that transaction …” „… legal person entering into that transaction in the event of an increase in the price or value of the …” „… entity, shall be determined by the natural or legal person in question acting reasonably having regard to …”

Article 8 Insider dealing S. 692-705

„… or ought to know that it is inside information. 5. Where the person is a legal person, this Article …” „… the legal person concerned. I. General features …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . 23 c) Legal persons …”

Article 2 S. 577-580

„… ’. The legal definitions correlate with those in the former Art 2(a), (b) LCD, former Art 2 LPD and …” „… former Art 1(2) IRD.1 However, there are no legal definitions for two critically important terms used in …” „… Art 2(2) CARD sets out two optional exceptions. The provision correlates with former Art 1 LCD.1 II …”

Article 1 Purpose and scope S. 951-958

„… issued by associations with legal status or non-profit-making bodies, recognised by a Member State, with …” „… other form of immovable property or a part thereof and where the shares cannot be sold on without this …” „… upper threshold and the lower threshold; the former, from EUR 100,000 to EUR 1 million, the latter from …”

Article 9 Method of notification and disclosure S. 903-906

„… 8 shall set out details of the identity of the natural or legal person who holds the relevant …” „… purposes of Articles 5, 6, 7 and 8, natural and legal persons that hold significant net short positions …” „… the trading day on which the natural or legal person holds the relevant position. That time shall …”

Article 23 Powers of competent authorities S. 838-843

„… , to enter the premises of natural and legal persons in order to seize documents and data in any form …” „… following supervisory and investigatory powers: (a) to access any document and data in any form, and to …” „… authorisation to enter premises of natural and legal persons referred to in point (e) of the first subparagraph …”

Article 36 Conditions for the marketing in Member States without a passport of non-EU AIFs managed by an EU AIFM S. 1539-1541

„… (a) the form and content of a model for the notification letter referred to in paragraph 3; (b) the …” „… form and content of a model for the notification letter referred to in paragraph 5; (c) the form and …” „… content of a model for the statement referred to in paragraph 6; (d) the form of the transmission referred …”

Article 10 Acquisition or disposal of major proportions of voting rights S. 1148-1155

„… notion of ‘formal agreement’. In line with this, French legal practice seems to apply a broad …” „… power to formally instruct the management under most legal systems, indirect influence would be …” „… of Article 9 shall also apply to a natural person or legal entity to the extent it is entitled to …”

Article 20 Investment recommendations and statistics S. 824-833

„… would a directors’ recommendation to approve a takeover.22 Form The concrete form or format of the …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3. Form …” „… market manipulation, Art 20 forms part of MAR’s efforts to regulate dissemination of information. Article …”

Article 13 S. 1163-1172

„… Article 12(9) empowers ESMA to develop ‘standard forms, templates and procedures’ in the form of …” „… draft ITS. These forms would then be used for the notification to the issuer and to the competent …” „… a ‘standard form for notification of major holdings’, but in a non-binding form.34 V. Annex …”

Article 28 Administrative measures and sanctions S. 1216-1219

„… legal entities, in the event of a breach, sanctions can be applied, subject to the conditions laid down …” „… in national law, to the members of administrative, management or supervisory bodies of the legal …” „… and approximating national legal frameworks concerning administrative measures and sanctions.5 New …”

Article 10 Unlawful disclosure of inside information S. 711-718

„… employment, a profession or duties. This paragraph applies to any natural or legal person in the situations …” „… duties.10 Under the Market Abuse Regulation, the legal situation is clear: Disclosure of inside …” „… national legal rules had to be interpreted to conform to the three conditions of a close link, strict …”

Article 50 S. 602-604

„… have a physical form it is nec- 1. 2. 1 Cf. Heinze, 61. 2 Cf. Gebhardt, § 7 BörsZulV margin no 1. 3 Cf …” „… . Security Markets and Services 602 Jessica Schmidt 2 3 4 5 essary and sufficient that their physical form …” „… comply with the standards laid down in that other Member State. Where the physical form does not conform …”

Article 12 Restrictions on uncovered short sales in shares S. 910-914

„… Article 12 Restrictions on uncovered short sales in shares 1. A natural or legal person may enter …” „… conditions is fulfilled: (a) the natural or legal person has borrowed the share or has made alternative …” „… provisions resulting in a similar legal effect; (b) the natural or legal person has entered into an agreement …”

Article 18 Insider lists S. 799-808

„… writing the legal and regulatory duties entailed and is aware of the sanctions applicable to insider …” „… information acknowledges the legal and regulatory duties entailed and is Chapter 3 Disclosure requirements …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 c) Form …”

Article 8 S. 1700-1702

„… the law applicable in case of a participant’s insolvency. Thus, the provision guarantees legal …” „… certainty and foreseeability as to the legal consequences of insolvency proceedings against a participant …” „… bankruptcy, system members would have to take into account the insolvency law of all legal systems involved …”

Article 34 Publication of decisions S. 869-874

„… implementing technical standards to determine the procedures and forms for exchange of information as referred …” „… regarding the forms and procedures for submitting information to ESMA on administrative or criminal …” „… 2017 laying down implementing technical standards with regards to the procedures and forms for …”

Article 76 Professional secrecy S. 377-378

„… Context Article 75 is related to Article 74 (right of appeal) inasmuch as that both deal with legal …” „… of their duties, save in summary or aggregate form such that individual investment firms, market …” „… or legal persons other than competent authorities which receive confidential information pursuant to …”

Titelei/Inhaltsverzeichnis

„… business Authorisation, legal form, registered office …” „… formidable challenges for the legal practitioner. Yet locating the relevant provision is insufficient; it is …” „… existing case law are provided, and bibliographies invite further reading. The method of explaining a legal …”

Article 8 Certain insolvency provisions disapplied S. 1734-1739

„… arrangements. Article 7 provides some legal certainty, not only with respect to the validity and enforceability …” „… consequent because close-out netting is, considering its result, a form of enforcement of financial …” „… proceedings against one of the parties. The purpose of Art 8 is to improve legal certainty as to the effects …”

Article 4 Exemptions from the obligation to publish a prospectus S. 969-974

„… the form of shares of the same class as the shares in respect of which such dividends are paid …” „… equivalence decisions in accordance with the procedure referred to in Article 24(2), stating whether the legal …” „… indicate why it considers that the legal and supervisory framework of the third country concerned is to be …”

Article 7 Responsibility and liability S. 1135-1137

„… autonomy, whereby it is for national legal systems to determine the design and extent of liability.7 This …” „… other words, remedies and forms of action available under national law must be made available in the …” „… ’ (2011) 31 Oxford Journal of Legal Studies 23, 33 et seq. 9 Moloney, 149. 10 Regulation (EC) 864/2007 of …”

Article 1 Subject matter and scope S. 1099-1104

„… Law and Legal Taxonomy from Lamfalussy to de Larosière’ (2010) 11 European Business Organization Law …” „… – Liability and choice of law from a transatlantic perspective’ (2011) 31 Oxford Journal of Legal Studies 23 …” „… other EU legal instruments, such as the Shareholders Rights Directive7 or the accounting rules.8 3. 4 …”

Article 10 Shareholders and members with qualifying holdings S. 50-53

„… the investment firm’s legal form) with a qualifying holding (cf. Art 4(1)(33) MiFID) and their stakes …” „… , whether direct or indirect, natural or legal persons, that have qualifying holdings and the amounts of …” „… other natural or legal persons, the competent authority shall grant authorisation only if those links do …”

Article 16 Exemption where the principal trading venue is in a third country S. 921-924

„… Article 44(2), adopt decisions determining that the legal and supervisory framework of a third country …” „… that third country. The legal and supervisory framework of a third country may be considered equivalent …” „… ensured by preventing market abuse in the form of insider dealing and market manipulation. 3. Articles 7 …”

Article 16 Additional information S. 1177-1179

„… former Article 16(3). Previously, similar requirements had existed in Directive 2001/34/EC, Articles 68(2 …” „… mentions as an example a change in loan terms or in interest rates. Former Article 16(3) required issuers …” „… ; (b) make available a proxy form, on paper or, where applicable, by electronic means, to each person …”

Article 12 Market manipulation S. 730-756

„… other form of deception or contrivance; (c) disseminating information through the media, including the …” „… without prejudice to the forms of behaviour set out in paragraph 2, Annex I defines non-exhaustive …” „… indicators relating to the employment of a fictitious device or any other form of deception or contrivance …”

Article 28 Obligation to trade on regulated markets, MTFs or OTFs S. 503-511

„… require access to stored information.25 Form and time The data provided must correspond to certain formats …” „… agreement on the form of data is needed.26 The transaction report must be transmitted “as quickly as …” „… ) adopt decisions determining that the legal and supervisory framework of a third country ensures that a …”

Article 6 Conditions for taking up activities as AIFM S. 1478-1480

„… Internal AIFM are only conceivable where the legal form of the AIF permits an management of the AIF …” „… established in corporate form (e.g. Luxembourg SICAV/ SICAFs) but is also conceivable for other legal forms …” „… of the AIFM’s shareholders or members, whether direct or indirect, natural or legal persons, that …”

Article 3 Optional exemptions S. 18-22

„… supervision appropriate to their legal form. However, where a natural person provides services involving the …” „… . A systems operator is a natural or legal person that is responsible for the operating and …” „… into account the size, risk profile and legal nature of the persons exempt in accordance with paragraph …”

Article 17 Information requirements for issuers whose shares are admitted to trading on a regulated market S. 1179-1183

„… available a proxy form, on paper or, where applicable, by electronic means, to each person entitled to vote …” „… cases referred to in Article 10(a) to (h), of the natural persons or legal entities; (b) identification …” „… arrangements shall be put in place so that the shareholders, or the natural persons or legal entities entitled …”

Article 6 Inciting, aiding and abetting, and attempt S. 629-637

„… where the affected trading venue is located.38 The AMP defence is formulated as a true legal defence …” „… legal person, see arts 7-9, paras 1, 7. 2 Moloney, EU Securities and Financial Markets Regulation (3rd …” „… liability for insider trading.14 However, in contrast to the legal context pertaining in Spector Photo Group …”

Article 81 Exchange of information S. 381-383

„… standards to establish standard forms, templates and procedures for competent authorities to cooperate in …” „… Article 67(1). They shall not transmit it to other bodies or natural or legal persons without the express …” „… Article 71 as well as other bodies or natural and legal persons receiving confidential information under …”

Article 28 Limited scope of activities S. 1366

„… Member States shall determine the legal form which an investment company must take. The registered …” „… ) where close links exist between the investment company and other natural or legal persons, the competent …” „… one or more natural or legal persons with which the investment company has close links, or …”

Article 9 Conflict of laws S. 1739-1743

„… legal nature and proprietary effects of book entry securities collateral; (b) the requirements for …” „… independently from the will of the parties. This approach increases legal certainty and transparency from the …” „… renvoi, if the conflicts rules of a designated country refer to another legal system, then this reference …”

Articles 83 to 91 S. 1679-1680

„… trade repository business could take the form of a natural monopoly. Accordingly, Article 78(7) EMIR …” „… impact on netting’ (1997) 5 Journal of Financial Regulation and Compliance 154; Devos D, ‘Legal …” „… , ‘Intermediated Securities, Legal Risk, and the International Harmonization of Commercial Law’ (2008) 13 Stanford …”

Article 7 Conditions for authorisation S. 1328-1331

„… links exist between the management company and other natural or legal persons, the competent authorities …” „… administrative provisions of a third country governing one or more natural or legal persons with which the …” „… implementing technical standards to determine standard forms, templates and procedures for the notification or …”

Article 86 Precautionary measures to be taken by host Member States S. 384-386

„… (c) controlled by the same person, whether natural or legal, who controls a credit institution or …” „… . 4. ESMA shall develop draft implementing technical standards to establish standard forms, templates …” „… ascertain that an investment firm that has a branch within its territory infringes the legal or regulatory …”

Article 11 Information to be provided to ESMA S. 906-908

„… requirements under Articles 5, 6, 7 and 8 apply to natural or legal persons domiciled or established within the …” „… and disclosure requirements under Arts 5 to 8 SSR apply to natural or legal persons regardless of …” „… shall provide information in summary form to ESMA on a quarterly basis on net short positions relating …”

Article 7 Recognition of close-out netting provisions S. 1732-1734

„… taker’s legal position as owner of the assets used as collateral. Consequently, title transfer collateral …” „… Clearing and Settlement 1732 Andy Ruzik 1 practice4 in financial markets and avoiding legal uncertainties …” „… deal with different forms of netting and different situations. While Art 3 of Directive 98/26/EC …”

Article 9 S. 1702-1706

„… applicable to collateral in the form of book-entry representing securities accounts or rights in securities.1 …” „… significant relationship to a legal question as the applicable law.4 For collateral rights in tangible objects …” „… – whether movable or immovable – most legal systems consider that this connection is with the country in …”

Article 37 Authorisation of non-EU AIFMs intending to manage EU AIFs and/or market AIFs managed by them in the Union in accordance with Article 39 or 40 S. 1541-1550

„… to obtain prior authorisation as referred to in paragraph 1 shall have a legal representative …” „… established in its Member State of reference. The legal representative shall be the contact point of the AIFM …” „… through that legal representative. The legal representative shall perform the compliance function relating …”

Introduction S. 644-650

„… is problematic considering the importance of legal certainty and the formidable sanctions that a …” „… and Public Policy 101; Harry McVea, ‘What’s wrong with insider dealing?’ (1995) 15 Legal Studies 390 …” „… ; Kennth E Scott, ‘Insider Trading: Rule 10b-5, Disclosure and Corporate Privacy’ (1980) 9 Journal of Legal …”

Article 26 Obligation to report transactions S. 495-498

„… required under paragraphs 3 and 4, investment firms shall use a legal entity identifier established to …” „… identify clients that are legal persons. ESMA shall develop by 3 January 2016 guidelines in accordance with …” „… Article 16 of Regulation (EU) No 1095/2010 to ensure that the application of legal entity identifiers …”

Article 5 Right of use of financial collateral under security financial collateral arrangements S. 1728-1731

„… Safe Harbours’ (2016) 36 Oxford Journal of Legal Studies 855, 870. 3 Schlaegel, 74. 4 Paech, ‘The Value …” „… of Financial Market Insolvency Safe Harbours’ (2016) 36 Oxford Journal of Legal Studies 855, 869. 5 …” „… collateral.10 When a secured creditor returns equivalent collateral, questions may arise as to its legal …”

Article 11 Market soundings S. 718-730

„… information is necessary to enable the parties entitled to the securities to form an opinion on their …” „… been disclosed, including but not limited to the legal and natural persons acting on behalf of the …” „… communication can occur in any form, for example, in person, by audio or video conference, in writing, or by …”

Article 3 Definitions S. 1236-1242

„… ) ‘credit rating agency’ means a legal person whose occupation includes the issuing of credit ratings on a …” „… professional basis; […] (f) ‘rated entity’ means a legal person whose creditworthiness is explicitly or …” „… Grütze 5 6 7 8 9 differ from expert opinions, product tests, legal opinions and annual financial …”

Introduction S. 1466-1467

„… legal form; (c) the legal structure of the AIFM. 3. This Directive shall not apply to the following …” „… as well as transparency requirements, in particular in the form of mandatory information to be …” „… the EU inside the EU, be it in the form of the manager of Europea AIF by non-EU AIFM or in the form of …”

Article 75 Extra-judicial mechanism for consumers complaints S. 376-377

„… is related to Article 74 (right of appeal) inasmuch as that both deal with legal protection in cases …” „… duties, save in summary or aggregate form such that individual investment firms, market operators …” „… requirements of national criminal or taxation law, the competent authorities, bodies or natural or legal …”

Article 44 S. 597-598

„… change of the legal form during the three-year period is irrelevant.3 Exception The second sentence of …” „… relating to the shares for which admission is sought Article 45 The legal position of the shares must be in …” „… legal position of the shares must be in conformity with the laws and regulations to which they are …”

Introduction S. 574-576

„… form, Directive 2001/34/EC, the CARD (Consolidated Admissions and Reporting Directive), which is also …” „… stock exchange listing. Its other components were significantly revised and transferred into other legal …” „… other legal persons and any undertaking whose securities are the subject of an application for admission …”

Article 46 General provisions S. 560-566

„… the adoption by the Commission of the decision referred to in Article 47 determining that the legal …” „… protection and which are better qualified to assess the legal complexities associated with contracting with a …” „… legal and supervisory arrangements of that third country ensure that firms authorised in that third …”

Article 23 Disclosure to investors S. 1514-1517

„… ) investors upon request. It does, however, form part of the information to be provided to prospective …” „… strategy or investment policy, or both; (c) a description of the main legal implications of the contractual …” „… applicable law and on the existence or not of any legal instru- Art. 23 AIFMD 4. Funds 1514 Christian …”

Article 3 Definitions S. 654-657

„… a natural or legal person; (14) ‘commodity’ means a commodity as defined in point (1) of Article 2 …” „… to the second subparagraph of Article 17(2); (21) ‘issuer’ means a legal entity governed by private …” „… date of the transaction concerned; or (d) a legal person, trust or partnership, the managerial …”

Article 8 Exemptions S. 1137-1140

„… number of legal problems.11 Under its general rule, this would lead to ‘law of the country in which …” „… the damage occurs’.12 As this appears to reintroduce a multiplicity of unpredictable legal rules of …” „… and Choice of Law from a Transatlantic Perspective’ (2011) 31 Oxford Journal of Legal Studies 42 et …”

Article 17 Public disclosure of inside information S. 778-799

„… activities of a market participant than the former (see → mn 8 above).38 All persons involved in an …” „… head office …, which has no legal personality and which provides investment services and/or activities …” „… under Form 8-K and the listing standards of the various stock exchanges. See Langenbucher, ‘Insider …”

Article 5 The prospectus S. 974-984

„… form. 2. The prospectus shall contain information concerning the issuer and the securities to be …” „… costs of translating the prospectus before the legal proceedings are initiated; and d. civil liability …” „… securities, including warrants in any form, issued under an offering programme; b. non-equity securities …”

Article 3 Integration of securities markets S. 1114-1118

„… institutions. The home Member State may not make a holder of shares, or a natural person or legal entity …” „… information, make a holder of shares, or a natural person or legal entity referred to in Articles 10 or 13 …” „… purpose of market design.7 The objective is to improve legal certainty, enhance transparency and reduce …”

Article 3 Obligation to publish a prospectus S. 965-969

„… addressed to fewer than 150 natural or legal persons per Member State, other than qualified investors …” „… lower threshold; the former, from EUR 100,000 to EUR 1 million, the latter from EUR 5 million to EUR 8 …” „… , offers addressed to fewer than 150 natural or legal persons per Member State, other than qualified …”

Article 3 Formal requirements S. 1722-1724

„… include definitions at the beginning of a legal act. But definitions are particularly important in light …” „… legal practitioners must reflect the European origins of the legislation by not relying on national laws …” „… Member States whose law presupposes a certain form and those whose law does not.6 According to the latest …”

Index S. 1785-1803

„… , 15; MiFID II 70 4, 8 – against legal persons MiFID II 70 7 Administrative sanctions MAR 30 2, 7 et …” „… seq., 10, 12, 15; MiFID II 70 4, 5, 8; PRIIPR 29 2 – against legal persons MiFID II 70 7 …” „… . – informational intermediary UCITSD 26a 2 – legal entity UCITSD 23 2 et seq. – liability UCITSD 24 3 et seq …”

Article 2 Definitions S. 1720-1722

„… in companies and bonds and other forms of debt instruments if these are negotiable on the capital …” „… of which a financial collateral arrangement forms part, or, in the absence of any such provision, any …” „… , grants credit in the form of a loan. 2. References in this Directive to financial collateral being …”

Article 69 Supervisory powers S. 358-362

„… powers to: (a) have access to any document or other data in any form which the competent authority …” „… to comply with legal requirements; (m) require the suspension of trading in a financial instrument …” „… and may pose legal problems. Most powers included in Article 69(2) subpara 1 have typically been held …”

Article 10 Application of notification and disclosure requirements S. 906

„… requirements under Articles 5, 6, 7 and 8 apply to natural or legal persons domiciled or established within the …” „… and disclosure requirements under Arts 5 to 8 SSR apply to natural or legal persons regardless of …” „… shall provide information in summary form to ESMA on a quarterly basis on net short positions relating …”

Article 1 Subject matter S. 1467

„… law, under statute, or has any other legal form; (c) the legal structure of the AIFM. 3. This …”

Article 2 Definitions S. 958-965

„… equity securities; d. ‘offer of securities to the public’ means a communication to persons in any form …” „… relating to the taking up and pursuit of the business of credit institutions; h. ‘issuer’ means a legal …” „… legal entity or individual which offers securities to the public; j. ‘regulated market’ means a market …”

Article 5 Requirements for credit transfer and direct debit transactions S. 1759-1765

„… mean “stored in a specific way”. Generally, a mandate has to be conserved in the form it has been given …” „… be valid as they are in accordance with Art 5 of the SEPA Regulation. The required form is, as a …” „… contain any form requirement for signatures, direct debit transactions within the scope of the PSD2 can be …”

Article 88 Exchange of information with third countries S. 387-389

„… . plementing technical standards with regard to standard forms, templates and procedures for cooperation in …” „… technical standards with regard to standard forms, templates and procedures for the consultation of other …” „… legal persons responsible for one or more of the following: (a) the supervision of credit institutions …”

Article 25 Assessment of suitability and appropriateness and reporting to clients S. 180-193

„… non-UCITS collective investment undertakings and shares that embed a derivative; (ii) bonds or other forms …” „… referred to in Article 89a(2), stating whether the legal and supervisory framework of a third country …” „… enforcement in that third country. The competent authority shall indicate why it considers that the legal and …”

Article 44 Authorisation and applicable law S. 247-252

„… high frequency trading, other forms of algorithmic trading and direct electronic market access …” „… regulated market that is a legal person and that is managed or operated by a market operator other than the …” „… , where a regulated market and its operator are two distinct legal persons. In this case, it must be made …”

Article 35 a Civil Liability S. 1294-1301

„… subparagraph, or any exclusion of civil liability shall be deprived of any legal effect. 4. Terms such as …” „… Regulation, as implemented in the CRA Regulation, does not contain any legal definition of the term “having …” „… , therefore, unlikely to form the basis for a claim under Art 35 a CRA Regulation. Financial damage …”

Article 22 Annual report S. 1512-1514

„… authorities. Art 22 addresses the ongoing disclosure requirement in the form of an annual report. Chapter IV …” „… annual report only needs to be provided to (existing) investors upon request. It does, however, form part …” „… change its investment strategy or investment policy, or both; (c) a description of the main legal …”

Article 84 Consultation prior to authorisation S. 383-384

„… the same natural or legal persons who control an investment firm or credit institution authorised in …” „… II Jörn Axel Kämmerer 383 (c) controlled by the same person, whether natural or legal, who controls a …” „… forms, templates and procedures for the consultation of other competent authorities prior to granting an …”

Article 80 Use of key investor information documents when directly and indirectly marketing UCITS S. 1422-1423

„… management company, which sells UCITS directly or through another natural or legal person who acts on its …” „… management company, which does not sell UCITS directly or through another natural or legal person who acts on …” „… UCITS, the investment company or the management company for which the former entities are liable. Those …”

Article 48 Consequences of merger S. 1377-1380

„… for such legal forms. The UCITSD IV provisions override any national law which effectively sets aside …” „… cases where UCITS have not designated a management company, Member States shall ensure that any legal …” „… , regardless of its private law form or special legislation the respective Member State may have implemented …”

Article 20 Post-trade disclosure by investment firms, including systematic internalisers, in respect of shares, depositary receipts, ETFs, certificates and other similar financial instruments S. 472-478

„… the predefined and supervised legal framework. Legislative history The predecessor provisions to Arts …” „… Commission Delegated Regulation (EU) 2017/587; although there is no legal obligation for APAs to use MICs …” „… multilateral system,35 (b) be subject to authorisation under the legal and supervisory framework of the …”

Article 19 Managers’ transactions S. 808-824

„… household for at least one year. The definition also includes a legal person, trust or partnership, whose …” „… associated person) takes part in or influences the decisions of a legal entity other than the issuer to carry …” „… on the board of another legal entity, but where that person does not take part nor influence the …”

Article 43 S. 594-597

„… long as there is accounting continuity, a change of the legal form during the three-year period is …” „… determined. There is also still no general EU legal act harmonising the rules on the law applicable to …” „… carrying different rights form separate classes.8 In fact, Art 52(4) of the 19899 and 199110 drafts of the …”

Article 22 Competent authorities S. 835-838

„… authorities Bibliography: Avgouleas E, ‘The Mechanics and Regulation of Market Abuse, A Legal and Economic …” „… data in any form, and to receive or take a copy thereof; (b) to require or demand information from any …” „… subparagraph, to enter the premises of natural and legal persons in order to seize documents and data in any …”

Introduction and overview S. 874-881

„… “Sergakis”). Legal instruments and other EU documents: Level 3 measures: ESMA, Guidelines – Exemption for …” „… selling regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Legal basis …” „… submitting a notification form, assess eligibility of a notifying entity’s activities for exemptions, and …”

Article 13 Accepted market practices S. 756-767

„… of this section above in the relevant context. Legal persons, Art 12(4) The prohibition on market …” „… insider dealing regime to legal persons, their agents, and other natural persons acting on behalf of a …” „… legal person.167 Article 13 Accepted market practices 1. The prohibition in Article 15 shall not apply …”

Article 73 Reporting of infringements S. 373-375

„… people within a legal entity to report violations of EU(-based) law by the entity to authorities. The …” „… ensure that its national competent authority establishes legal instruments for the protection of …” „… least one of three categories of entities. Class action law suits are a form of so-called “private …”

Article 23 Precautionary measures S. 1025-1027

„… trading venues and to protect investors. When a matter involves a new type, or a rare form, of securities …” „… breaching the relevant legal or regulatory provisions, the competent authority of the host Member State …” „… persists in breaching the relevant legal or regulatory provisions implementing the Prospectus Directive …”

Article 25 Professional secrecy and cooperation between Member States S. 1208-1210

„… between NCAs. II. Professional secrecy According to Article 25(1), all current and former staff of the …” „… right to bring legal action against the non-cooperating Member State under TFEU Article 258 also remains …” „… holder persists in infringing the relevant legal or regulatory provisions, the competent authority of the …”

Article 14 Restrictions on uncovered sovereign credit default swaps S. 918-920

„… default swaps 1. A natural or legal person may enter into sovereign credit default swap transactions only …” „… SSR). Legal history The Commission’s Proposal for the SSR6 did not prohibit entering into transactions …” „… may invoke the suspension that the authority is (also) empowered to restrict (!) other forms of short …”

Article 8 Omission of information S. 990-994

„… a prospectus is inappropriate to the issuer's sphere of activity or to the legal form of the issuer …” „… issuer’s sphere of activity, or to the legal form of the issuer, or to the securities to which the …” „… determining the offer price, including a statement as to who has set the criteria or is formally responsible …”

Introduction S. 1563-1574

„… OTC derivatives markets’ (2016) 17 EBOLR 355; Braithwaite J, ‘Legal Perspectives on Client Clearing …” „… , Intermediation and the Blockchain – An Inevitable Choice between Liquidity and Legal certainty?’ (2016) 21 …” „… perspective of the Legal Theory of Finance, financial market stability and the public good’ (2016) 17 EBOLR 71 …”

Article 7 Inside information S. 673-692

„… disclosed in accordance with legal or regulatory provisions at the Union or national level, market rules …” „… information which is reasonably expected or is required to be disclosed in accordance with legal or regulatory …” „… disclosure obligations are laid down in SEC Form 8-K, whereas the insider trading prohibition applies where a …”

Article 12 Assessment procedures S. 58-61

„… 58 Dirk Zetzsche 14 15 (a) a natural or legal person situated or regulated outside the Union; (b) a …” „… natural or legal person not subject to supervision under this Directive or Directives 2009/65/EC, 2009/138 …” „… 1095/2010. 9. ESMA shall develop draft implementing technical standards to determine standard forms …”

Article 4 S. 1039-1046

„… and of the Council (),1 where, regardless of the legal form of the investment, the amount repayable to …” „… the product is a PRIP. The legal form and the issuer of a product are irrelevant. Explicitly included …” „… securities.’ Both the key information document (‘KID’) and the prospectus summary are short form documents …”

Article 54 Monitoring of compliance with the rules of the regulated market and with other legal obligations S. 312-315

„… with other legal obligations 1. Member States shall require that regulated markets establish and …” „… ) 2017/565.14 In the former case, the events must have the potential to endanger the role and function of the …” „… II, a CCP is defined as a legal person that interposes itself between the parties to the contracts …”

Article 32 Reporting of infringements S. 865-868

„… other pre-existing legal or contractual duties to report such information, and provided that the …” „… or other forms of retaliation (most likely by the employer) for doing so. Article 32(2)(b), therefore …” „… authority or if the latter does not share the legal assessment of the person (which is not unlikely …”

Article 6 Responsibility attaching to the prospectus S. 984-987

„… prospectus by their names and functions or, in the case of legal persons, their names and registered offices …” „… requires the persons responsible to be clearly identifiable by name and function or, in the case of a legal …” „… to non-equity securities, including warrants in any form, issued under an offering programme; d. the …”

Article 16 Prevention and detection of market abuse S. 772-778

„… under the 2003 Market Abuse Directive.6 The standards were adopted by the Commission in the form of a …” „… in preventing insider dealing and market manipulation.13 What form of training is ‘effective’ depends …” „… the form and manner set out in the implementing regulation, using the template contained in that …”

Article 26 b Implementing acts S. 1364-1365

„… Conditions for taking up business Article 27 Authorisation, legal form, registered office Access to the …” „… the depositary is to safekeep the financial instruments issued in a nominative form and registered …” „… address various forms of insolvency risks stemming results from divergence in the level of protection for …”

Article 23 Third countries S. 1200-1204

„… Commission on 25 September 2015.4 The European Commission then adopted the draft RTS in the form of a …” „… (or the issuer is subject to another equivalent, ‘fourth’ legal system).6 The decision on equivalence …” „… its legal system – and which is not ‘equivalent’ nor required under EU law – should also be disclosed …”

Article 21 Depositary S. 1504-1512

„… subject to mandatory professional registration recognised by law or to legal or regulatory provisions or …” „… of the relevant AIF must be duly informed that such delegation is required due to legal constraints …” „… indirectly through the AIFM, depending on the legal nature of the relationship between the depositary, the …”

Article 5 Half-yearly financial reports S. 1124-1131

„… , disclosed deliberately and without formal legal obligation, should not be regarded as ‘regulated information …” „… natural person or legal entity in the meaning of Article 2(1)(d). Whilst the term ‘share’ is not defined …” „… in the TD, debt securities are explained in Article 2(1)(b) to include bonds and ‘other forms of …”

Article 98 Powers of competent authorities; inquiry rights S. 1439-1440

„… requirements set out in Articles 92 and 94. I. Purpose Art 97 of UCITSD governs the form and organisation of …” „… paragraph 1, competent authorities shall have the power, at least, to: (a) access any document in any form …” „… competent authorities. II. Commentary The provision shall ensure that competent authorities have the legal …”

Article 33 Exchange of information with ESMA S. 868-869

„… happens to be already known to the authority or if the latter does not share the legal assessment of the …” „… standards to determine the procedures and forms for exchange of information as referred to in this Article …” „… sanctions. Level 2 and 3 measures On the basis of Article 33(5), ESMA drafted an ITS regarding the forms and …”

Article 47 Organisational requirements S. 264-268

„… because regulated markets are more intensely regulated by MiFID II and, thus, prioritized over other forms …” „… legal arrangements have to be concluded and the responsibilities have to be allocated. At the time of …” „… MiFID II, a CCP is defined as a legal person that interposes itself between the parties to the contracts …”

Article 24 General principles and information to clients S. 157-180

„… content, scope and form of conduct-of-business rules under MiFID II must at least be taken into account …” „… firm or any other legal or economic relationships, such as contractual relation- 13 Brenncke, Regelung …” „… information referred to in paragraphs 4 and 9 shall be provided in a comprehensible form in such a manner that …”

Article 99 e Reporting of penalties to ESMA S. 1447-1448

„… procedures and forms for submitting information as referred to in this Article. ESMA shall submit those draft …” „… down implementing technical standards with regard to standard procedures and forms for submitting …” „… referred to in paragraph 1 are not prevented by legal or regulatory provisions from cooperating effectively …”

Article 85 Powers for host Member States S. 384

„… (c) controlled by the same person, whether natural or legal, who controls a credit institution or …” „… . 4. ESMA shall develop draft implementing technical standards to establish standard forms, templates …”

Article 31 Marketing of units or shares of EU AIFs in the home Member State of the AIFM S. 1529-1530

„… requirements. Art 30 itself does not address the legal consequences of a violation of its requirements by an …” „… determine: (a) the form and content of a model for the notification letter referred to in paragraph 2; and …” „… (b) the form of the written notice referred to in paragraph 4. Power is conferred on the Commission …”

Article 3 S. 1038-1039

„… , regardless of the legal form of the investment, the amount repayable to the retail investor is subject to …” „… document (‘KID’) and the prospectus summary are short form documents that aim to provide investors with …” „… originally drawn up. The format and content of the summary of the prospectus shall provide, in conjunction …”

Article 8 S. 1054-1063

„… legal form of the PRIIP,16 the main factors upon which its return depends, the underlying investment …” „… advising on, or selling, a PRIIP may also be accessed by retail investors form Member States other than the …” „… of the legal name of the PRIIP manufacturer9 and a website providing retail investors with contact …”

Article 5 Exemption for buy-back programmes and stabilisation S. 661-670

„… list of notifications in an electronic, downloadable and machine-readable form on its website …” „… for legal certainty for market participants that engage in financially beneficial stabilisation or …” „… an aggregated form that indicates the aggregated volume and the weighted average price per day and …”

Article 7 Validity of mandates and right to a refund S. 1766-1768

„… German banks were therefore amended with a legal fiction: A mandate for the former German …” „… subsequent authorisation was the former ‘Einzugsermächtigungsverfahren’ in Germany.1 Scope ratione temporis …” „… ) above intends to preserve the payer’s right to a refund from the former mandate and its corresponding …”

Article 21 Disclosure or dissemination of information in the media S. 833-835

„… journalism or other form of expression in the media, such disclosure or dissemination of information shall be …” „… are produced, disclosed or disseminated in some form. Specifically, Art 21 becomes relevant where such …” „… information or recommendations are produced or disseminated for the purpose of journalism or other form of …”

Article 99 d Protection of whistleblowers S. 1445-1447

„… responsible for the infringement, as indicated, for example, by its total turnover in the case of a legal …” „… determine the procedures and forms for submitting information as referred to in this Article. ESMA shall …” „… July 2016 laying down implementing technical standards with regard to standard procedures and forms for …”

Article 16 Organisational requirements S. 65-120

„… key person is sick or permanently absent; hence a proxy solution is indispensable. However, the former …” „… provided to the client, in the form of monetary or non-monetary benefits or services. Art 34 Conflicts of …” „… circumstances and with the prior approval of a member of the firm’s legal or compliance function; (c) a physical …”

Chapter 2 Conduct of business rules S. 1637-1643

„… include a description of the main legal implications of the respective levels of segregation offered …” „… members (Art 37(6) EMIR). Membership carries financial burdens in the form of margins and collateral set …” „… 2017/2155. On this topic, see Braithwaite, ‘Legal Perspectives on Client Clearing’ (2015) LSE Law, Society …”

Article 71 Disclosure of fund rules, instruments of incorporation S. 1413-1414

„… instruments of incorporation of an investment company shall form an integral part of the prospectus and shall …” „… legal documents may also be provided. Level 2 and 3 measures ESMA’s Guidelines on ETFs and other UCITS …”

Article 18 Trading process and finalisation of transactions in an MTF and an OTF S. 134-142

„… the different levels of segregation shall include a description of the main legal effects of the …” „… satisfied that there is access to, sufficient publicly available information to enable its users to form an …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. General features Purpose Article 18 MiFID II forms the basis for all organisational …”

Article 40 Obligation to provide information S. 239-240

„… respective areas of competence shall be provided; (b) all relevant details of the firm (name, legal form …”

Article 5 Market manipulation S. 628-629

„… instruments or a related spot commodity contract, which employs a fictitious device or any other form of …” „… legal person, see arts 7-9, paras 1, 7. 2 Moloney, EU Securities and Financial Markets Regulation (3rd …”

Article 70 Disclosures on categories and volatility of assets, risk management S. 1412-1413

„… instruments of incorporation of an investment company shall form an integral part of the prospectus and shall …” „… legal documents may also be provided. Level 2 and 3 measures ESMA’s Guidelines on ETFs and other UCITS …”

Article 26 Cooperation with third countries S. 846-849

„… develop draft implementing technical standards to determine the procedures and forms for exchange of …” „… has only drafted and submitted one ITS on forms and procedures for cooperation between competent …” „… )4 4. 2 ESMA, Final report, Draft Implementing Technical Standards on forms and procedures for …”

Article 43 Withdrawal of authorisations S. 246-247

„… 44 to 56: Busch D, ‘MiFID II: regulating high frequency trading, other forms of algorithmic trading …” „… requirements laid down in this Title. In the case of a regulated market that is a legal person and that is …”

Article 57 Exemptions from Art 52, 56 in certain cases S. 1396-1397

„… than operating a business. This is because additional legal obligations are prompted once the …” „… subscription rights attaching to transferable securities or money market instruments which form part of their …”

Article 24 Cooperation with ESMA S. 843-844

„… in respect of legal persons, to shareholders or competitors. However, the exclusion is confined to …” „… forms for exchange of information as referred to in paragraph 2. ESMA shall submit those draft …”

Introduction S. 941-951

„… EU-Prospektverordnung (2nd edn, Deutscher Fachverlag GmbH 2017); Black BS, ‘The legal and Institutional Preconditions …” „… Law Review (2007) 229; Black, ‘The legal and Institutional Preconditions for Strong Securities Markets …” „… issued by associations with legal status or non-profit-making bodies, recognised by a Member State, with …”

Article 18 Information requirements for issuers whose debt securities are admitted to trading on a regulated market S. 1183-1187

„… therein; (b) make available a proxy form on paper or, where applicable, by electronic means, to each …” „… to Article 17, but as debtholders’ legal position differs compared to shareholders, a separate …” „… Article 2(1)(b) defines debt securities as ‘bonds and other forms of transferable securitised debts’, but …”

Article 6 Report on payments to governments S. 1131-1135

„… has emphasised that such information, disclosed deliberately and without formal legal obligation …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4. Former versions of Article 6 …” „… market.11 Former versions of Article 6 Before the 2013 reform, former Article 6 of the TD contained an …”

Article 61 Communication between feeder’s and master’s depositary S. 1401-1403

„… I. Purpose Despite being separate legal entities, the master and feeder UCITS are closely …” „… intertwined in that the investment results of the former predetermine the investment results of the latter. At …”

Article 22 Competent authority S. 1621-1623

„… national law, can be taken or imposed against the natural or legal persons responsible for non-compliance …” „… order of protocol for the Member States is alphabetical, based on the original written form of the …”

Article 4 Notifications and list of financial instruments S. 657-661

„… ) shares and other securities equivalent to shares; (ii) bonds and other forms of securitised debt; or (iii …” „… paragraph 1 to ESMA without delay. ESMA shall publish those notifications on in its website in the form of a …” „… must further include the legal entity identifier (LEI) of the issuer or trading venue operator, the …”

Foreword to Articles 24 to 30 Foreword to Arts 24 to 30 S. 155-157

„… duties owed by investment firms do not automatically follow regulatory duties since the former are …” „… more specific in such a way that legislative decisions regarding the content, scope and form of …” „… issued or provided by entities having close links with the investment firm or any other legal or economic …”

Article 48 Systems resilience, circuit breakers and electronic trading S. 268-292

„… function is responsible for providing clarity to all staff involved in algorithmic trading about the legal …” „… procedures that ensure that the algorithmic trading systems comply with those legal obligations.19 This task …” „… for members, participants, clients) and (d) the particular legal obligations.30 Staffing must take …”

Article 12 Prudential regulation S. 1334-1336

„… forms, templates and procedures for the modalities of the consultation process between the relevant …” „… to the fund rules or the instruments of incorporation and the legal provisions in force; (b) is …”

Article 56 Prohibition of controlling stakes S. 1394-1396

„… 2 3 than operating a business. This is because additional legal obligations are prompted once the …” „… subscription rights attaching to transferable securities or money market instruments which form part of their …”

Article 60 Relationship between feeder and master S. 1399-1401

„… I. Purpose Despite being separate legal entities, the master and feeder UCITS are closely …” „… intertwined in that the investment results of the former predetermine the investment results of the latter. At …”

Article 21 Access to regulated information S. 1193-1197

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 b) Form …” „… territory. Form Regulated information is to be communicated to the media in a way which makes clear that the …” „… , the disclosure of the regulated information will be done under the legal regime of the host Member …”

Article 21 Post-trade disclosure by investment firms, including systematic internalisers, in respect of bonds, structured finance products, emission allowances and derivatives S. 478-482

„… several transactions in an aggregated form, or a combination thereof, during the time period of the …” „… debt, may allow the publication of several transactions in an aggregated form during an extended time …” „… allow the publication of several transactions in an aggregated form for an indefinite period of time …”

Article 30 Transactions executed with eligible counterparties S. 207-210

„… of such entities to request, either on a general form or on a trade-by-trade basis, treatment as …” „… obtain that confirmation either in the form of a general agreement or in respect of each individual …” „… compliance with the rules of the MTF or the OTF and with other legal obligations 1. Member States shall …”

Article 7 Minimum information S. 987-990

„… inappropriate to the issuer's sphere of activity or to the legal form of the issuer or to the securities to …” „… any form, issued under an offering programme; d. the format used and the information required in …” „… for non-equity securities having a denomination per unit of at least EUR 100,000; c. the format used …”

Article 14 b Details and proportionality of remuneration policy S. 1339-1343

„… the legal structure of the UCITS and its fund rules or instruments of incorporation, a substantial …” „… , discretionary pension benefits shall be held by the management company for a period of five years in the form of …” „… benefits shall be paid to the employee in the form of instruments referred to in point (m), subject to a …”

Article 39 Establishment of a branch S. 237-239

„… respective areas of competence shall be provided; (b) all relevant details of the firm (name, legal form …”

Article 20 Home member state supervision S. 1348-1350

„… establish standard forms, templates and procedures for such provision of information. Power is conferred on …” „… State pursuant to paragraph 2, or persists in breaching the legal or regulatory provisions, referred to …”

Article 108 Delineation of supervisory powers S. 1460-1462

„… territories it is legally possible to serve the legal documents necessary for the measures which may be taken …” „… regards the form and content of the standard notification letter and UCITS attestation, the use of …”

Article 7 Application for authorisation S. 1480-1482

„… of the AIFM’s shareholders or members, whether direct or indirect, natural or legal persons, that …” „… this Article, ESMA may develop draft implementing technical standards to determine standard forms …” „… competent authority for each such AIFM. The register shall be made available in electronic format. 6. In …”

Article 8 Interchange fees for direct debit transactions S. 1768-1770

„… former mandates, which allowed for an unconditional and backdated refund, are converted to SEPA …” „… . Art 9 contains mandatory law affecting the legal relation between payer and payee. Conflicting terms …”

Article 46 Requirements relating to persons exercising significant influence over the management of the regulated market S. 262-264

„… any natural or legal person and an undertaking”.4 According to Art 1 of the former directive 83/349/EC …”

Article 7 Procedures for granting and refusing requests for authorisation S. 38-41

„… implementing technical standards to determine standard forms, templates and procedures for the notification or …” „… 4(1), second para MiFID and comments thereon) and of investment firms that are legal persons managed …” „… as 6 months) or if the firm has renounced the authorisation, the authorisation shall be formally …”

Article 27 Committee procedure S. 1211-1214

„… – Effective Regulation, Soft Law and Legal Taxonomy from Lamfalussy to de Larosière’ (2010) 11 EBOR 379, 381 …” „… . This Regulation replaces former Decision 1999/468/EC (which is still mentioned in the text of Article …”

Article 2 Definitions S. 624-627

„… violation is ‘serious’).4 The legal basis for the directive is found in Art 83(2) of the TFEU, which …” „… sanctions’ (hence, in the form of a directive and not a regulation), if ‘the approximation of criminal laws …”

Article 21 Powers S. 1020-1023

„… shall be without prejudice to the possibility for a Member State to make separate legal and …” „… which the case is scrutinised, in particular as regards a new type or rare forms of securities. The …”

Article 5 c Over-reliance on credit ratings in Union law S. 1249-1252

„… 2014, 317; Deipenbrock, ‘Trying or Failing Better Next Time? – The European Legal Framework for Credit …” „… sufficient that a credit risk assessment in the form of an analysis of the plausibility of any external …”

Article 34 Freedom to provide investment services and activities S. 222-227

„… , without further legal or administrative requirement, allow investment firms and market operators operating …” „… . 9. ESMA shall develop draft implementing technical standards to establish standard forms, templates …” „… addresses, phone services, data interfaces, data feeds etc.) and arrangements that faciliate the former …”

Article 4 Enforcement of financial collateral arrangements S. 1724-1728

„… States whose law presupposes a certain form and those whose law does not.6 According to the latest report …” „… obligor, either to publicise the interest in the collateral to promote legal certainty and avoid fraud, or …” „… States may still require certain formal acts to make the collateral arrangement valid and enforceable …”

Article 63 Requirements for the management body of a data reporting services provider S. 341-347

„… to the standard forms, templates and procedures for the authorisation of data reporting services …” „… is the state in which their head office is situated. For legal persons, the home Member State is the …” „… authorities.24 The standard forms, templates and procedure for the authorisation and related notifications …”

Article 13 S. 1073-1081

„… order to be executed, irrespective of whether by way of a purchase agreement in any legal sense or …” „… representative, usually in the form of a power of attorney. Specific mention of a PRIIP transaction is not …” „… that the power of attorney fulfils the requirements by national law for written forms. In this respect …”

Article 17 Algorithmic trading S. 120-134

„… content and format of the approved form referred to in the fifth subparagraph of paragraph 2 and the …” „… technique shall store in an approved form accurate and time sequenced records of all its placed orders …” „… engages in high-frequency trading. Such a firm shall store, in an approved form, accurate and time …”

Article 57 Position limits and position management controls in commodity derivatives S. 317-334

„… Position limits apply to “persons”. These can be natural or legal persons (Recital 26 MiFID II), i.e …” „… over its members. Because of the distinct legal personality of the parent company and its subsidiaries …” „… derivatives markets can take various forms. A well-known tactic is to “corner the market”: A person creates a …”

Article 45 Requirements for the management body of a market operator S. 252-262

„… directorships a member of the management body can hold, in any legal entity, at the same time shall take into …” „… , the nomination committee shall be able to use any forms of resources it deems appropriate, including …” „… need to have a formal written policy on conflicts of interest and an objective compliance process for …”

Article 9 Sanctions for legal persons S. 637-640

„… punishable by a maximum term of imprisonment of at least two years. Article 8 Liability of legal persons 1 …” „… . Member States shall take the necessary measures to ensure that legal persons can be held liable for …” „… individually or as part of an organ of the legal person, and having a leading position within the legal person …”

Article 2 Definitions S. 883-888

„… German legal perspective, Mülbert & Sajnovits, (2012) ZBB/JBB 266, 269. 14 Until 2 January 2018 the …” „… ) in relation to a legal person not referred to in point (i) or (ii), the Member State in which its …” „… trading venue or of a market in a third country, the legal and supervisory framework of which has been …”

Article 10 Jurisdiction Jörn Axel Kämmerer S. 640-644

„… ‘under the authority’ of the legal person. Article 8(2), therefore, covers the misconduct of any employee …” „… or agent of the legal person, on the condition that there is a causal link (in the sense of a …” „… 9 provides that a Member State may make provision for other sanctions, such as excluding the legal …”

Article 1 Subject matter and scope S. 1745-1751

„… project. According to recital 4 of the PSD1, the coherent and modern legal framework it intended was to …” „… the continued legal validity of pre-SEPA direct debit mandates. At the end of 2010, the European …” „… ) of the TFEU regarding restrictions on payments.12 Prior to the SEPA Regulation, the legal and …”

Article 6 Public disclosure of significant net short positions in shares S. 897-899

„… , ‘natural and legal persons’ include registered business associations without legal personality, like the …” „… requires ‘management entities’ to report, which includes mere divisions, units or departments of a legal …” „… for management activities and legal entities within a group.7 However, these rules create the risk of …”

Overview of Articles 12-15 S. 908-910

„… (EU) No 827/2012). Article 11(3) and (4) SSR provide the legal basis for ESMA to draft regulatory and …” „… sales in shares 1. A natural or legal person may enter into a short sale of a share admitted to trading …” „… on a trading venue only where one of the following conditions is fulfilled: (a) the natural or legal …”

Article 5 Notification to competent authorities of significant net short positions in shares S. 895-897

„… Notification to competent authorities of significant net short positions in shares 1. A natural or legal person …” „… . Commentary Article 5(1) SSR requires a natural or legal person that has a net short position in relation to …” „… 918/2012.5 According to Recital 6 SSR, ‘natural and legal persons’ include registered business associations …”

Article 2 Definitions S. 1751-1755

„… natural or legal person who holds a payment account and allows a payment order from that payment account …” „… or, where there is no payer’s payment account, a natural or legal person who makes a payment order to …” „… a payee’s payment account; (4) ‘payee’ means a natural or legal person who holds a payment account …”

Article 11 Risk-mitigation techniques for OTC derivative contracts not cleared by a CCP S. 1603-1611

„… practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between …” „… transaction; (b) there is no current or foreseen practical or legal impediment to the prompt transfer of own …” „… practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between the …”

Article 2 S. 1684-1691

„… The method to reach this goal is by eliminating, at least to some degree, the legal uncertainties …” „… courts and legal practitioners must seek guidance from the European origins of the legislation and not …” „… insolvency proceedings. Its purpose is to create legal certainty and foreseeability as to what systems fall …”

Article 1 S. 1680-1684

„… and Compliance 154; Devos D, ‘Legal Protection of Payment and Securities Settlement Systems and of …” „… International Law 423; Thévenoz L, ‘Intermediated Securities, Legal Risk, and the International Harmonization of …” „… the important systemic risk inherent in payment systems which operate on the basis of several legal …”

Article 52 S. 604-605

„… undertakings for the debt securities of which admission to official listing is sought Article 52 The legal …” „… ) LCD) requires – corresponding with Art 42 regarding shares – the legal conformity of the issuer. The …” „… legal position of the undertaking must be in conformity with the laws and regulations to which it is …”

Article 42 S. 593-594

„… of which admission to official listing is sought Article 42 The legal position of the company must be …” „… , Art 42 (previously Annex Schedule A(I) (1) LCD) requires the legal conformity of the issuer: The legal …” „… is to be determined. There is also still no general EU legal act harmonising the rules on the law …”

Chapter 1 Organisational requirements S. 1628-1637

„… , natural or legal persons, that have qualifying holdings and of the amounts of those holdings. 2. The …” „… legal persons, the competent authority shall grant authorisation only where those links do not prevent …” „… governing one or more natural or legal persons with which the CCP has close links, or difficulties involved …”

Introduction to Title III S. 593

„… of which admission to official listing is sought Article 42 The legal position of the company must be …” „… , Art 42 (previously Annex Schedule A(I) (1) LCD) requires the legal conformity of the issuer: The legal …” „… in conformity with the laws and Regulations to which it is subject, as regards both its formation and …”

Article 51 S. 604

„… undertakings for the debt securities of which admission to official listing is sought Article 52 The legal …” „… ) LCD) requires – corresponding with Art 42 regarding shares – the legal conformity of the issuer. The …” „… legal position of the undertaking must be in conformity with the laws and regulations to which it is …”

Article 11 Notification of acquisitions and disposals of qualifying holdings S. 53-58

„… or members in question. Following such orders, the legal basis of the influence is likely undermined …” „… or legal person or such persons acting in concert (the ‘proposed acquirer’), who have taken a …” „… relevant information, as referred to in Article 13(4). Member States shall require any natural or legal …”

Articles 20-41 Art. 20-41 S. 592-593

„… companies for the shares of which admission to official listing is sought Article 42 The legal position of …” „… relating to the issuer, Art 42 (previously Annex Schedule A(I) (1) LCD) requires the legal conformity of …” „… the issuer: The legal position of the company must be in conformity with the laws and regulations to …”

Article 30 S. 1095-1096

„… available to competent authorities. For natural persons the fine should be up to EUR 700,000 and for legal …” „… that legal entity according to the last available financial statements approved by the management body …” „… .4 In excess of this amounts natural persons as well as legal entities may be fined with an amount up …”

Article 53 Access to a regulated market S. 308-312

„… credit institutions. 6. Member States shall, without further legal or administrative requirements, allow …” „… recital 15 MiFID II, a CCP is defined as a legal person that interposes itself between the parties to the …” „… . There may not be additional legal or administrative requirements imposed by other Member 2. 3. 4. 5. 8 …”

Article 4 Uncovered position in a sovereign credit default swap S. 892-894

„… sovereign credit default swap 1. For the purposes of this Regulation, a natural or legal person shall be …” „… legal person has a long position in the sovereign debt of that issuer to which the sovereign credit …” „… legal person holds assets or is subject to liabilities, including but not limited to financial contracts …”

Article 53 S. 605

„… Article 53 The legal position of the debt securities must be in conformity with the laws and regulations …” „… regarding shares – requires that the legal position of the debt securities must be in conformity with the …” „… head office) is decisive.2 Conformity as regards formation and operation An undertaking must be in …”

Article 58 Examination of the application S. 1659-1660

„… paragraph 1. I. General features Purpose Trade repositories1 are legal persons that centrally collect and …” „… registration As stated under Article 55 EMIR, the legal person meeting the requirements laid down in Title VII …” „… shall develop draft implementing technical standards specifying the format of the application for …”

Article 54 S. 605-606

„… Article 53 The legal position of the debt securities must be in conformity with the laws and regulations …” „… regarding shares – requires that the legal position of the debt securities must be in conformity with the …” „… head office) is decisive.2 Conformity as regards formation and operation An undertaking must be in …”

Article 79 Consistency of key investor and regulated information; liability for key investor information disclosures S. 1421-1422

„… through another natural or legal person who acts on its behalf and under its full and unconditional …” „… another natural or legal person who acts on its behalf and under its full and unconditional responsibility …” „… inaccuracy imposed by the strict and mandatory format under Art 78 of UCITSD, it would be inadequate to …”

Article 46 S. 598-599

„… Section 2 Conditions relating to the shares for which admission is sought Article 45 The legal …” „… Schedule A(II)(1) LCD) requires that the legal position of the shares must be in conformity with the laws …” „… well as the format, incorporation by reference and publication of such prospectuses and dissemination …”

Article 9 S. 1063-1065

„… ‘Legal Notices’, or ‘Important Information’ sections, especially if the terms ‘legal’ or ‘important’ are …” „… . The content and format of the information must comply with the terms of the first sentence of Article …” „… revised KID and the means of doing so and empowers the Commission to adopt the RTS. The RTS formed the …”

Article 9 Notification of the acquisition or disposal of major holdings S. 1140-1148

„… Shareholder can be any individual or legal entity in the meaning of Article 2(1)(e) and (2 a). This …” „… . 2. 3. a) 11 This is the distinction some legal systems draw between the contractual stage and the …” „… also apply to a natural person or legal entity to the extent it is entitled to acquire, to dispose of …”

Article 19 Specific requirements for MTFs S. 142-145

„… operating the OTF or from any entity that is part of the same group or legal person as the investment firm …” „… legal entity. An OTF shall not connect with a systematic internaliser in a way which enables orders in …” „… formats provided in Table 1 of the Annex of the Commission Implementing Regulation (EU) 2016/824.48 …”

Article 3 S. 1691-1695

„… two or more systems is established by a system operator as explained in Art 2(p), which is the legal …” „… arise from the mere fact of insufficient funds and not from legal consequences of insolvency proceedings …” „… has to be provided within a formal system under Art 1 and for the purpose of securing rights and …”

Article 9 Management body S. 43-50

„… that are natural persons or to investment firms that are legal persons managed by a single natural …” „… identities of the shareholders or members, whether direct or indirect, natural or legal persons, that have …” „… , recital 55 MiFID recognizes, at least formally, the difference between unitary or dual (one-tier …”

Article 55 Registration of a trade repository S. 1658-1659

„… this Article, a trade repository shall be a legal person established in the Union and meet the …” „… paragraph 1, ESMA shall develop draft implementing technical standards specifying the format of the …”

Article 100 Consumer complaints and alternative dispute resolution S. 1448-1449

„… are not prevented by legal or regulatory provisions from cooperating effectively in the resolution of …” „… cross-border disputes. I. Purpose Art 100 of UCITSD seeks to enhance private enforcement by non-formal …”

Article 64 Conversion disclosures and procedures S. 1405-1407

„… . Overview The conversion procedure follows an investment law rationale that ensures legal certainty in a …” „… delegated acts in accordance with Article 112 a, measures specifying: (a) the format and the manner in which …” „… the delegated acts adopted by the Commission regarding the format and the manner of the information …”

Article 20 Issuers incorporated in third countries S. 1018-1020

„… the entry into force of the 2013 Transparency Amending Directive. 3 ESMA Legal Opinion ESMA/2013/317 …” „… equivalent to those set out in the Prospectus Directive, there is no formal procedure for that purpose …”

Article 10 Non-financial counterparties S. 1600-1603

„… current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of …” „… ) formalised processes which are robust, resilient and auditable in order to reconcile portfolios, to manage …”

Article 14 Prohibition of insider dealing and of unlawful disclosure of inside information S. 767-770

„… feature of German law, which is absent in the French legal tradition and in common law, has led some …” „… insider dealing or the attempt to disclose inside information.6 However, the formulation of the 2003 …” „… primary insider.7 The new formulation of the rule in MAR should remove any ambiguities. 1. 2. 1 National …”

Article 24 Competent authorities and their powers S. 1204-1208

„… ) Paragraphs 1 to 4 shall be without prejudice to the possibility for a Member State to make separate legal and …” „… powers to the Commission, and Article 23(8) assigns a supportive role to ESMA in formulating common …” „… persons employed or formerly employed by the competent authorities receiving the information are subject …”

Article 9 Reporting obligation S. 1596-1600

„… LEI (Legal Entity Identifier);4 while derivative contracts are to be reported through a UPI (Unique …” „… paragraphs 1 and 3, ESMA shall develop draft implementing technical standards specifying: (a) the format and …” „… ). Report’s format and content The report’s format is specified in the Annex to Commission Implementing …”

Article 33 SME growth markets S. 217-221

„… Union’ and seek to ‘abolish the technical and legal restrictions on access to regulated markets.’1 From …” „… trading on its website in the format specified in Table 3 of the Annex to Regulation (EU) 2017/1005.14 …” „… decision will be complied with.17 The formats for these communications can be found in Tables 3 and 4 of …”

Article 16 Transitional provisionsAmended by Art. 1 of the Regulation (EU) No 248/2014 of the European Parliament and of the Council of 26 February 2014 amending Regulation (EU) No 260/2012 as regards the migration to Union-wide credit transfers and direct debits [2014] OJ L84/1. S. 1778-1782

„… to achieve legal and planning certainty for all stakeholders in the EU payment market, the proper …” „… payment transactions in euro in formats that are different from those required for credit transfers and …” „… authorities, until 1 February 2016, to waive the specific requirement to use the message formats specified in …”

doi.org/10.5771/9783845279893

Peter Kindler, Jan Lieder - European Corporate Law

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Peter Kindler (ed.), Jan Lieder (ed.)

European Corporate Law

2021

Results in this title

Tobias de Raet Article 102 Drawing up and certification of documents in due legal form S. 549-551

„… , certification in due legal form cannot be limited to identification of the parties or comparable formal aspects …” „… sentence 2). Article 102 Drawing up and certification of documents in due legal form 1. Where the laws of a …” „… subsequent to such general meetings shall be drawn up and certified in due legal form. In cases where the …”

Klaus Bader, Andreas Börner Article 148 Drawing up and certification of documents in due legal form S. 715-716

„… being divided. Article 148 Drawing up and certification of documents in due legal form Where the laws of …” „… of divisions or where such supervision does not extend to all the legal acts required for a division …” „… applicable accordingly, thus leaving the Member States the choice, in view of the different legal traditions …”

Alexander Schall, David Günther Article 10 Drawing up and certification of the instrument of constitution and the company statutes in due legal form S. 106

„… certification of the instrument of constitution and the company statutes in due legal form In all Member States …” „… documents shall be drawn up and certified in due legal form. I. Overview As mentioned above, the directive …” „… up and certified in due legal form. Also the latter official certification cannot be issued without a …”

Peter Kindler Article 34 Information on the opening and termination of winding-up or insolvency proceedings and on striking-off of the company from the register S. 179-182

„… change in the legal form of the company concerned, a merger or division, or a cross-border transfer of …” „… struck off the register of the company (in State A) as a consequence of any change in the legal form of …” „… any change in the legal form of the company, a merger or division, or a cross-border transfer of its …”

Peter Kindler Introduction S. 1-65

„… conversion’ whereby a company converts the legal form under which it is registered in a departure Member …” „… State A into a legal form of the destination Member State B and transfers ‘at least’ its registered …” „… liberal fundamental philosophy regarding the choice of legal form and of the associated legal system and …”

Klaus Bader, Andreas Börner Article 160 d Draft terms of cross-border divisions S. 748-757

„… ) the legal form and name of the company being divided and the location of its registered office, and …” „… the legal form and name proposed for the new company or companies resulting from the cross-border …” „… . These include, amongst others, information relating to the company (e.g. its legal form), the process …”

Peter Kindler Article 30 Documents and particulars to be disclosed S. 163-171

„… Article 16 is kept, together with the registration number in that register; (d) the name and legal form of …” „… company . . . . . . . . . . . . . . . . . . . . . . . 8 d) Name and legal form of the company; name of the …” „… ) as far as letters, order forms and websites are concerned Name and legal form of the company; name of …”

Peter Kindler Article 37 Compulsory documents and particulars to be disclosed S. 186-193

„… the law of the third country is a first, rough indication in favour of the corresponding legal form …” „… ) Instruments of constitution; memorandum and articles of association . . 12 f) Legal form of the company and …” „… resort to crucial particulars contained in them such as the legal form of the company, its principal …”

Dieter Leuering Preface S. 835-840

„… as the SUP-Directive.32 In contrast to the other European legal forms, the Commission has opted for …” „… references to national laws and creating a unified European legal form.”38 However, the SUP was created as a …” „… still introducing the legal form SUP.39 As a consequence, the SUP contributes to a blurring of the …”

Karsten Kühnle Article 86 l Employee participation S. 457-467

„… shall be obliged to take a legal form allowing for the exercise of participation rights. 7. Where the …” „… modifications to the principles and procedures . . . . . . . . . . . . . . . . . . 19 4. Legal forms permissible …” „… creation of European legal forms.6 II. Development of the Provision Article 86 l governs the 2019 …”

Index S. 1029-1055

„… . – impossibility 37 11 – language 37 14 – language and translation 30 31 – legal form of the company 30 9 ff …” „… accuracy of information published Intro 59 Company 30 1, 15, 35 – change in the legal form of the 34 1 …” „… – insolvency of the 37 1, 35 – legal form of the 30 1, 30a 1, 37 1 – merger of the 34 1 – name 2 8, 3 5, 30 …”

Peter Kindler Article 30 a Changes to documents and information of the company S. 171-174

„… ; (c) the company’s registration number in the register; (d) the company’s legal form; (e) the …” „… )) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 d) The company’s legal form (Art 30 a subpara 1 (d …” „… operation whereby a company […] converts the legal form under which it is registered in a departure Member …”

Alexander Schall, David Günther, Michael Lamsa Article 13 g Online formation of companies S. 116-121

„… due legal form, as long as the online formation referred to in Article 13 g is possible. 3. Member …” „… authenticity, accuracy, reliability, trustworthiness and appropriate legal form of documents or information …” „… drawn up and certified in due legal form where preventive administrative or judicial control is not …”

Karsten Kühnle Article 86 i Protection of members S. 434-445

„… supra-national legal form into German law by means of the SE-Implementation Act (SEAG).7 The SEAG furnishes …” „… contracts for the sale and transfer of shares in companies or specific legal form requirements and Member …” „… to exit the company, the provisions of national law attached to the legal form in question will apply …”

Jan Lieder, Martin Bialluch Article 10 Proxy voting S. 959-966

„… , which is inherent in every form of legal representation.11 The Member States’ measures against potential …” „… the SRD’s concept for proxy voting, see above → Art 10 mn. 1. II. Formal Requirements for Legal Acts …” „… . Every shareholder shall have the right to appoint any other natural or legal person as a proxy holder to …”

Karsten Kühnle Article 86 b Definitions S. 403-404

„… liquidation, converts the legal form under which it is registered in a departure Member State into a legal …” „… ) the legal form and name of the company in the departure Member State and the location of its …” „… registered office in that Member State; (b) the legal form and name proposed for the converted company in the …”

Karsten Kühnle Article 86 p Registration S. 483-485

„… number, name and legal form of the company and the registration number, name and legal form of the …” „… or removal of the company from the register, and the registration number, name and legal form of the …” „… number, name and legal form of the company and converted company, respectively, in the respective …”

Tobias de Raet Article 118 General provisions S. 576-594

„… Implementation for other legal forms is only possible to the extent that they may merge under the national laws …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 1. Removal of legal hurdles for cross-border activities of companies . . . . . . . . 35 2 …” „… ) Mergers involving partnerships, cooperatives and other legal entities . . . . 62 (i) Overview …”

Tobias de Raet Article 124 Report of the administrative or management body for members and employees S. 625-634

„… information concerning the change of debtor and the information relating thereto (legal form, company name …” „… Article 127(1), because if the formalities and legal acts preceding the crossborder merger (including the …” „… legal and economic aspects of the cross-border merger, as well as explaining the implications of the …”

Tobias de Raet Article 122 Common draft terms of cross-border mergers S. 605-618

„… , its legal form and name, and the location of its registered office, and the legal form and name …” „… state the legal form, name and the location of the registered office of the merging companies and those …” „… following information: (a) for each of the merging companies its legal form and name and the location of its …”

Karsten Kühnle Article 86 o Scrutiny of the legality of the cross-border conversion by the destination Member State S. 479-483

„… cross-border conversion entails a change of the legal form of a company without that company losing its legal …” „… include information as to the legal form and name proposed for the converted company in the destination …” „… destination Member State, respectively, the registration number, name and legal form of the company and the …”

Jan Lieder, Martin Bialluch Article 8 Participation in the general meeting by electronic means S. 910-914

„… very broad wording refers to the “legal” forms of participation (e.g. spectating, raising questions …” „… scope to cover all legal forms of participation under national company law. A similar 1. 1 …” „… are already permissible in some forms of non-listed legal entities.16 Nevertheless, they are not …”

Karsten Kühnle Article 86 d Draft terms of cross-border conversions S. 404-413

„… ) the legal form and name of the company in the departure Member State and the location of its …” „… registered office in that Member State; (b) the legal form and name proposed for the converted company in the …” „… the company, namely its legal form, name and registered office. They shall contain the same set of …”

Tobias de Raet Article 103 Date on which a merger takes effect S. 551-552

„… the legislative aim, certification in due legal form may not be limited to identification or formal …” „… merger are to be drawn up and certified in due legal form (cf. Article 102(1) sentence 2). II. Scope of …” „… examination The requirement to have documents drawn up and certified in due legal form requires the …”

Klaus Bader, Andreas Börner Article 160 a Scope S. 731-744

„… ] Article 160 p (2) Each newly formed recipient company: Depending on the legal form, with reference to the …” „… administrative or management body of the company being divided, information on the legal form, company name …” „… measures Article 160 a (3)-(5) No partnerships Newly formed legal entities (recipient companies …”

Jan P. Brosius Article 5 Authorisation for commencing business S. 83-85

„… is formed is subject to Article 7 (2) (former Article 8 Directive 2009/101/EC),3 pursuant to which …” „… thereof, if, before a company being formed has acquired legal personality, action has been carried out in …” „… (cf. Chapter IV). V. Legal Consequences In its first proposal, the Commission expressly pointed out …”

Karsten Kühnle Article 86 r Consequences of a cross-border conversion S. 485-487

„… or operation license given to the company is attached to the company’s specific legal form.4 In such …” „… legal form as converted in accordance with the rules of the destination Member State. Upon effectiveness …” „… company in the destination Member State (point (b) Article 86 p (2)). From a legal practitioner’s point of …”

Tobias de Raet Article 130 Registration S. 670-672

„… registration number, name and legal form of each merging company and of the company resulting from the merger …” „… )); and – the registration numbers, names and legal form of each merging company and of the company …” „… result of a cross-border merger (cf. Article 130(2)(d)); and the registration numbers, names and legal …”

Jan Lieder, Martin Bialluch Article 9 b Information to be provided in and right to vote on the remuneration report S. 931-943

„… satisfied by a binding effect alone. Classification as a non-binding sui generis legal form77 is therefore …” „… remuneration, including all benefits in whatever form, awarded or due during the most recent financial year to …” „… individual directors, including to newly recruited and to former directors, in accordance with the …”

Tobias de Raet Article 88 Rules governing mergers by acquisition and mergers by formation of a new company S. 501-505

„… chosen to allow rapid action by authorities.52 Mergers involving other legal forms of business …” „… other legal forms of business organisations into national laws (so-called gold-plating53). As mentioned …” „… (2014/59/EU) Paragraph 4 was included in the former 2011 Directive as a result of Article 122 of the bank …”

Klaus Bader, Andreas Börner Article 137 Draft terms of division S. 693-697

„… meeting. II. Formalities Draft terms of division – formal requirements Other than the written-form …” „… Civil Code, this proposal must at least include, among others, (a) the legal form, name and statutory …” „… in a division. The draft terms form the framework for the division and lay down the essential terms …”

Titelei/Inhaltsverzeichnis

„… due legal form …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 101 546 Drawing up and certification of documents in due legal form …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 147 714 Drawing up and certification of documents in due legal form …”

Peter Kindler Article 36 Disclosure of documents and particulars relating to a branch S. 183-186

„… Member State by a company which is not governed by the law of a Member State but which is of a legal form …” „… governed by the law of a Member State but which is of a legal form comparable with the types of company …” „… Member State, the next pre-condition for applying Art 36(1) is that the legal form of such third country …”

Jan Lieder, Martin Bialluch Article 7 Requirements for participation and voting in the general meeting S. 907-910

„… transferred to, or registered in the name of, another natural or legal person before the general meeting; and …” „… with another natural or legal person prior to the general meeting, in particular the obligation to …” „… The legal purpose of the prohibition of any type of share blocking (Article 7(1)(b) SRD) is to remove …”

Alexander Schall, David Günther Article 7 General provisions and joint and several liability S. 92-96

„… acquired legal personality, action has been carried out in its name and the company does not assume the …” „… the dangers posed by separate legal personality and limited liability.3 Disclosure can be understood …” „… form, not the substance. II. Scope of the Addressed Companies The Directive does not define “companies …”

Dieter Leuering Article 3 [Disclosure] S. 846-848

„… company is originally founded as such, the general disclosure provisions of the former Disclosure …” „… provisions for the requirements on the statutes and the act of establishment. Thus, the need for legal …” „… business partners).5 Legal entities as single shareholders must at least state the company name, the legal …”

Karsten Kühnle Article 86 a Scope S. 398-403

„… contemplates converting its legal form into a public limited liability company governed by the laws of the …” „… whereby a company, without being dissolved or wound up or going into liquidation, converts the legal form …” „… under which it is registered in a departure Member State into a legal form of the destination Member …”

Tobias de Raet Article 87 General provisions S. 494-501

„… involving other legal forms of business organization . . . . . . . . . . . . . 21 I. Legislative History …” „… merger of PLCs and later transfer a tested and established concept to other forms of legal entities38 …” „… . Such derogation was chosen to allow rapid action by authorities.52 Mergers involving other legal forms …”

Karsten Kühnle Article 86 h Approval by the general meeting S. 429-434

„… national rules on form (Recital 18)).12 On that basis, from a German legal perspective, the resolution to …” „… with regard to the cash compensation referred to in point (a) did not comply with the legal …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 III. Form and Language Requirements …”

Tobias de Raet Article 119 Definitions S. 594-598

„… legal forms of the Member States are covered by the scope of the Directive. This includes all …” „… of a cross-border merger by the formation of a new SE (= the newly formed SE is the acquiring legal …” „… mergers). Such operations will, therefore, usually lead to substantial legal uncertainty.144 Article 119 …”

Tobias de Raet Article 101 Protection of holders of securities, other than shares, to which special rights are attached S. 546-549

„… form shall check and certify the existence and validity of the legal acts and formalities required of …” „… documents in due legal form 1. Where the laws of a Member State do not provide for judicial or …” „… and certified in due legal form. In cases where the merger need not be approved by the general …”

Peter Kindler Article 35 Information on letters and order forms S. 182-183

„… strike the company off the register of the branch. Any change in the legal form is covered by Art 30a(d …” „… not governed by the law of a Member State but which is of a legal form comparable with the types of …” „… As Art 86 b para. 2 of the Directive makes clear, the company concerned retains its legal …”

Alexander Schall, David Günther Article 9 Acts of the organs of a company and its representation S. 97-106

„… statutes in due legal form In all Member States whose laws do not provide for preventive administrative or …” „… statutes and any amendments to those documents shall be drawn up and certified in due legal form. I …” „… statutes and any documents shall be drawn up and certified in due legal form. Also the latter official …”

Dieter Leuering Article 2 [Legitimacy] S. 842-846

„… . formation of a formally two-tier company with the involvement of another person who becomes a formal …” „… appear contradictory if this “permission to inactivity” were to be seen as a formal criterion in the form …” „… disclosure provisions of the former Disclosure Directive2 apply. The protection in the formation phase is …”

Karsten Kühnle Article 86 e Report of the administrative or management body for members and employees S. 413-422

„… the same company irrespective of its new legal form and registered office. The situation may look …” „… company shall draw up a report for members and employees, explaining and justifying the legal and economic …” „… form part of the administrative or management body. 9. Where the section of the report for members …”

Dieter Leuering Article 4 [General Meeting and Decisions] S. 848-850

„… manipulation.13 The legal consequences of a formal defect as well as the sanctioning of a breach of …” „… . Against the background of the divergent legal systems within the European Union and the dogmatic …” „… ambiguities in some legal systems, the provision makes it clear that even in the context of single-member …”

Jan P. Brosius Article 2 Scope S. 68-73

„… gives an indication of the company’s legal form and, thus, of its legal position. Most importantly, it …” „… liability companies (Annex I). The indent relates to the former Directive 82/891/EEC concerning the division …” „… 70 Jan P. Brosius 5 6 7 8 serves the protection of creditors and legal transactions in general. It …”

Klaus Bader, Andreas Börner Article 156 Application of rules on divisions by acquisition S. 725-727

„… legal form, company name as well as registered office of each newly founded entity to the list of …” „… I. Division by Formation of New Companies The legal concept of division by formation of new …” „… ), the draft terms of division shall indicate the form, name and registered office of each of the new …”

Alexander Schall, David Günther Article 11 Conditions for nullity of a company S. 106-108

„… certification of the instrument of constitution and the company statutes in due legal form In all Member States …” „… documents shall be drawn up and certified in due legal form. I. Overview As mentioned above, the directive …” „… up and certified in due legal form. Also the latter official certification cannot be issued without a …”

Jan P. Brosius Article 3 Compulsory information to be provided in the statutes or instruments of incorporation S. 73-79

„… and comprehensibly indicate the company’s legal form. Hence, the company’s name does not necessarily …” „… examples are procurement companies.25 For the purpose of creditor protection26 and the protection of legal …” „… capital’, or ‘cooperative’27 in all documents indicated in → Art 26, i.e. in all letters and order forms …”

Article 61 Derogation from rules on acquisition of own shares Jan P. Brosius S. 297-301

„… commission; (d) shares acquired by virtue of a legal obligation or resulting from a court ruling for the …” „… or form, transfer abroad of the registered office, or the introduction of restrictions on the …” „… Legal Scholars argue that Article 61 also applies to the second subparagraph of Article 60 (1).4 …”

Jan P. Brosius Article 44 General provisions S. 223-228

„… Annex II of the Directive, and companies governed by the law of a third country that have a legal form …” „… , Chapter IV of the Directive.5 Subparagraph 2 of Article 2 (2) provides for a legal definition of the …” „… be imposed on small cooperatives.12 Article 44 does not provide for a legal definition of …”

Jan Lieder, Martin Bialluch Article 9 c Transparency and approval of related party transactions S. 943-959

„… . Classification as a non-binding sui generis legal form77 is therefore appropriate, at least for practical reasons …” „… .75 As far as the legal nature of these guidelines is concerned, the Directive does not set out any …” „… guideline itself, its legal nature as well as the SRD’s transposition acts of the Member States are subject …”

Klaus Bader, Andreas Börner Article 160 e Report of the administrative or management body for members and employees S. 757-763

„… of debtor and related information (legal form, company name, registered office, minimum capital …” „… applicable under European law26 - in principle free to adopt their own rules as to the legal consequences of …” „… , explaining and justifying the legal and economic aspects of the cross-border division, as well as explaining …”

Alexander Schall, David Günther, Michael Lamsa Article 13 b Recognition of identification means for the purposes of online procedures S. 111-114

„… , trustworthiness and the appropriate legal form of documents or information that are submitted shall remain …” „… electronic identification under which electronic identification means are issued to natural or legal persons …” „… , or natural persons representing legal persons, e.g. the online identity card function of the identity …”

Jan Lieder, Martin Bialluch Article 6 Right to put items on the agenda of the general meeting and to table draft resolutions S. 902-907

„… the legal conditions under which Member States must enable shareholders to add items to the companies …” „… be found in many EU legal systems even without being prescribed by the SRD.3 With regard to Article 3 …” „… 6 must be considered. This is referred to in German publications, for example, by a minority legal …”

Klaus Bader, Andreas Börner Article 138 Publication of the draft terms of division S. 697-700

„… of the managements of the recipient companies and the legal entity being divided in case it does not …” „… measures in connection with the acquisition by the shareholders of the legal entity being divided, (k) the …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Form of publication …”

Karsten Kühnle Article 86 g Disclosure S. 425-429

„… following information: (a) the legal form and name of the company and the location of its registered office …” „… in the departure Member State and the legal form and name proposed for the converted company in the …” „… departure Member State for disclosure (Article 86 g (3)): (i) legal form, name and registered office in the …”

Klaus Bader, Andreas Börner Article 160 h Approval by the general meeting S. 769-773

„… in point (b) did not comply with the legal requirements. I. Minimum Standard for the Protection of …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4. Form requirements …” „… Member State of the recipient company. Taking into account the wide variety of forms of protection of …”

Alexander Schall, David Günther, Michael Lamsa Article 13 h Templates for online formation of companies S. 121-123

„… the drawing up of instruments of constitution done in due legal form, as long as the online formation …” „… requirement to have the company instruments of constitution drawn up and certified in due legal form where …” „… for a long time in a number of (former) MS. The online formation itself is only an additional option …”

Jan P. Brosius Article 4 Compulsory information to be provided in the statutes or instruments of incorporation or separate documents S. 79-83

„… V. Legal Consequences In its first proposal, the Commission expressly pointed out that it is to …” „… 44 mn. 62 et seq.) such imposition of sanctions or comparable legal consequences by the Member States …” „… natural or legal persons or companies or firms by which or in whose name the statutes or the instrument of …”

Tobias de Raet Article 95 Detailed written report and information on a merger S. 524-528

„… terms of merger and setting out the legal and economic grounds for them, in particular the share …” „… . Form of the report …” „… in the best interest of the company.4 Form of the report Detailed written report The report has to be …”

Klaus Bader, Andreas Börner Article 153 Conditions for nullity of a division S. 721-723

„… preventive supervision of their legality, or if they have not been drawn up and certified in due legal form …” „… of their legality, or if they have not been drawn up and certified in due legal form, or if it is …” „… is very complicated to unwind a division and to ensure legal certainty as regards the relationships …”

Jan P. Brosius Foreword to Arts 44-85 S. 204-223

„… shortfall in the number of members, where a Member State requires a legal minimum to form a company (Article …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 3. Legal relationship between shareholders and company . . . . . . . . . . . . . . . . . . . 38 4 …” „… . Essential to the legislature’s dogmatic approach is the introduction of the concepts of legal capital and …”

Dieter Leuering Article 6 [The one-person public limited liability company] S. 852-853

„… the legal form of a public limited liability company is prevented.4 For the raising of the minimum …” „… uncertainty regarding the vague legal concepts13. Article 6 [The one-person public limited liability company …” „… company6 or whether these circumstances must be cumulatively prescribed by the legal system of the Member …”

Tobias de Raet Article 125 Independent expert report S. 634-643

„… with Article 128(2) and Article 127(1), because if the formalities and legal acts preceding the …” „… effect,36 because if the formalities and legal acts preceding the cross-border merger (including the …” „… for specific form requirements regarding the waiver; Member States may, however, request formal …”

Karsten Kühnle Article 86 j Protection of creditors S. 445-455

„… legal action aiming at receiving an additional cash compensation. Further, the exclusive competence to …” „… . For sake of achieving legal certainty in complex cross-border matters this explicit ruling is greatly …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Need for creditor protection: altering of the company’s legal cloth versus a transfer of assets …”

Jan P. Brosius Article 56 General rules on distribution S. 271-277

„… aims to maintain the company’s legal capital (plus non-distributable reserves) for the purpose of …” „… company’s legal capital (cf. → Art 45 mn. 5 et seqq.) plus any reserves which may not be distributed. Where …” „… legal capital plus undistributable reserves. Article 56 does not provide for a definition of the term …”

Peter Kindler Foreword to Arts 28a-42 S. 144-150

„… Directive: “Such disclosure, with the exception of the powers of representation, the name and legal form …” „… third state company which is of a legal form comparable with the types of company listed in Annex II …” „… law. The request addresses barriers in the form of a prohibition, ordered by a court or public …”

Jan Lieder, Martin Bialluch Article 1 Subject matter and scope S. 857-863

„… stock companies.10 This includes – if listed in such regulated markets – most national legal forms of …” „… legislative technique in the SRD – Interpretation of the SRD’s legal terms For the general purpose of …” „… extent. In particular, the Directive seems to be inconsistent in its wording of several legal terms. This …”

Klaus Bader, Andreas Börner Article 139 Approval by the general meeting of each company involved in a division S. 700-702

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. Form requirements …” „… the different concepts in the national legal systems in this respect, these issues have deliberately …” „… ) sentence 1, the approval of the general meetings of each of the legal entities involved in the division is …”

Jan Lieder, Martin Bialluch Article 13 Removal of certain impediments to the effective exercise of voting rights S. 968-971

„… Article applies where a natural or legal person who is recognised as a shareholder by the applicable law …” „… acts in the course of a business on behalf of another natural or legal person (the client). 2. Where …” „… continuation of the legal purposes realised there, Article 13 SRD also aims to remove further obstacles, which …”

Dieter Leuering Article 5 [Self-dealing] S. 850-852

„… the legal form of a public limited liability company is prevented.4 For the raising of the minimum …” „… Mandatory form requirement, Art 5 (1) Article 5 (1) of the Directive contains a protective provision with …” „… ) guarantees a minimum degree of transparency by requiring at least minutes or a written form of the decisions …”

Dieter Leuering Article 1 [Scope] S. 840-842

„… be covered by EU directives. In addition, the English Limited, a far-spread legal form across the EU …” „… – in the legislative intent of the Commission and in the comments of the parties involved in the legal …” „… liability companies.1 Thus, initially, only the national forms of private limited liability companies were …”

Tobias de Raet Article 128 Scrutiny of the legality of the cross-border merger S. 666-669

„… national laws.6 The legal scrutiny of the cross-border merger does not include a legal check of the …” „… , that its national legal requirements have been complied with and that they do not prevent the …” „… cross-border merger from being effected,9 whereas legal scrutiny pursuant to Article 128 is only carried out by …”

Karsten Kühnle Article 86 m Pre-conversion certificate S. 467-478

„… boilerplate. These mechanics involve an examination of both the substantive law and legal formalities12 and …” „… scrutiny in the context of applications for registration is more on compliance with legal formalities. It …” „… pre-conversion certificate (point (a) of Article 86 m (7)). Form, format, and content of pre-conversion …”

Alexander Schall, David Günther, Michael Lamsa Article 16 Disclosure in the register S. 129-135

„… register or entered directly into it in electronic form. Member States shall ensure that all documents and …” „… information that are filed by paper means are converted by the register to electronic form as quickly as …” „… filed by paper means before 31 December 2006 are converted into electronic form by the register upon …”

Jan Lieder, Martin Bialluch Article 11 Formalities for proxy holder appointment and notification S. 966-967

„… , the national law must give legal effect to both external and internal appointments of proxies.2 For a …” „… for Legal Acts in the Context of Proxy Voting (Para. 2) At the same time, however, Article 11(2) SRD …” „… establishes a text form requirement as a fixed standard.3 This requirement is not originally for the benefit …”

Klaus Bader, Andreas Börner Article 160 i Protection of members S. 773-778

„… validity of contracts for the sale and transfer of shares in companies or special legal form requirements …” „… , the employees, etc., as the amendments to the draft terms could negatively impact on their legal and …” „… related information provided did not comply with the legal requirements (Article 160h(5)). VII …”

Alexander Schall, David Günther Foreword to Arts 7-12 S. 87-92

„… being formed has acquired legal personality, action has been carried out in its name and the company …” „… gives a notification about the legal force of the information in the respective member state (Art 17 …” „… and has no direct impact on the part of the Directive that corresponds with the former disclosure …”

Tobias de Raet Article 123 Disclosure S. 618-625

„… legal form and name and the location of its registered office and the legal form and name proposed for …” „… must include the legal form, name and registered office of each of the merging companies in order to …” „… information (i.e. legal form, name and registered office) also needs to be published for the newly created …”

Tobias de Raet Article 108 Conditions for nullity of a merger S. 560-564

„… if they have not been drawn up and certified in due legal form, or if it is shown that the decision …” „… was not drawn up and certified in due legal form, or (iii) if it is shown that the decision of the …” „… , free to specify the legal consequences of any misconduct.4 II. Scope of Application in Regard to Other …”

Jan P. Brosius Article 45 Minimum capital S. 228-233

„… limited liability companies and thereby addresses the Second Directive’s constitutive principle of legal …” „… Level Group attested the concept of legal capital to be one of the cornerstones of European Company Law …” „… by the ECU in Community legal instruments6 the EUA was replaced by the European Currency Unit (ECU …”

Jan Lieder, Martin Bialluch Article 9 a Right to vote on the remuneration policy S. 919-931

„… and other benefits in whatever form, which can be awarded to directors and indicate their relative …” „… harmonised manner. Member States only have an option as to the legal effects of the shareholders’ resolution …” „… legal effects of non-transposition → Art 15 mn. 3). It is also mandatory to provide for the right of …”

Klaus Bader, Andreas Börner Article 160 l Employee participation S. 786-790

„… be obliged to take a legal form allowing for the exercise of participation rights. 7. Where the …” „… Andreas Börner 789 6 7 8 9 10 the legal form of the recipient company must be chosen in such a way that …” „… the legal form of a recipient company may have to be chosen in such a way that the employee …”

Article 67 Subscription, acquisition or holding of shares by a company in which the public limited liability company holds a majority of the voting rights or on which it can exercise a dominant influe... S. 322-330

„… law of a third country and has a legal form comparable to those listed in Annex II. However, where the …” „… 2009/101/EC and companies governed by the laws of third countries and having comparable legal forms should …” „… subsidiary is permitted only if the respective transaction would be legal if made by the company itself. II …”

Tobias de Raet Article 133 Employee participation S. 680-686

„… 2, that company shall be obliged to take a legal form allowing for the exercise of participation …” „… ) Obligation to take a legal form allowing for the exercise of participation …” „… to take a legal form allowing for the exercise of participation If at least one of the companies …”

Alexander Schall, David Günther, Michael Lamsa Article 13 d Fees for online procedures S. 114-115

„… concerning the authenticity, accuracy, reliability, trustworthiness and the appropriate legal form of …” „… to national laws that, in accordance with Member States’ legal systems and legal traditions …” „… law, including those relating to legal procedures for the drawing up of instruments of constitution …”

Alexander Schall, David Günther, Michael Lamsa Article 13 j Online filing of company documents and information S. 124-125

„… information. 5. Member States may continue to allow forms of filing other than those referred to in paragraph …” „… bodies mandated under national law to deal with such forms of filing. Art 13 j further strengthens the …” „… legal transactions or resolutions on which the respective document is based are not included because …”

Tobias de Raet Article 91 Draft terms of merger S. 509-514

„… ) and (iv) the drawing-up and certification of documents in due legal form (cf. Article 102). These …” „… . the legal form), the name and the registered office of the merging companies, i.e. the transferring …” „… Company Article 90 contains the legal definition of a ‘merger by formation of a new company’. While a …”

Alexander Schall, David Günther, Michael Lamsa Article 13 c General provisions on online procedures S. 114

„… concerning the authenticity, accuracy, reliability, trustworthiness and the appropriate legal form of …” „… to national laws that, in accordance with Member States’ legal systems and legal traditions …” „… law, including those relating to legal procedures for the drawing up of instruments of constitution …”

Klaus Bader, Andreas Börner Article 147 Protection of holders of securities, other than shares, to which special rights are attached S. 714-715

„… , at the same time the instrument takes into account those national legal systems which make the …” „… obligation for the company being divided. Article 148 Drawing up and certification of documents in due legal …” „… form Where the laws of a Member State do not provide for judicial or administrative preventive …”

Klaus Bader, Andreas Börner Article 136 Definition of a ‘division by acquisition’ S. 690-693

„… that are involved with the division must be of the same legal form, albeit that a public and a private …” „… other legal entities which may be involved in a merger under German law (and not only by public …” „… splitsing) or a partial division (afsplitsing). A full division is the legal act whereby the property …”

Klaus Bader, Andreas Börner Article 151 Consequences of a division S. 717-720

„… the legal entity being divided waive this obligation in notarized form. By means of Article 125 …” „… , each legal person involved in the division shall procure the registration of the division at the Dutch …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. General Remarks The legal consequences of divisions are outlined in Article 151. Accordingly …”

Klaus Bader, Andreas Börner Article 160 p Registration S. 799-801

„… legal form of the company being divided and of the recipient companies. The registers shall make the …” „… which may not have been fully considered in the first step of the legal scrutiny. Article 160 p …” „… legality pursuant to Article 160 o with regard to all legal requirements of the Member State of the …”

Klaus Bader, Andreas Börner Article 160 g Disclosure S. 766-769

„… 160 h, the following information: (a) the legal form and name of the company being divided and the …” „… location of its registered office and the legal form and name proposed for the newly created company or …” „… Article 160f(1) states clearly that the report is addressed to the members, so that they can form their …”

Klaus Bader, Andreas Börner Article 160 m Pre-division certificate S. 790-796

„… the legal form of the recipient company must be chosen in such a way that the interim regime can be …” „… , together with the Annex referred therein).9 It is important to note that the legal form of a recipient …” „… the company being divided, the legal form of the recipient company may even have to be changed to …”

Klaus Bader, Andreas Börner Article 135 General provisions on division operations S. 688-690

„… (stichtingen). The parties that are involved with the division must be of the same legal form, albeit that a …” „… the case of mergers, given the close relationship between the two legal restructuring methods, and in …” „… Member States to regulate the legal institution of the division under national law. The background, apart …”

Jan P. Brosius Article 48 Paying up of shares issued for a consideration S. 239-245

„… assets actually are increased accordingly. In the course of the company’s formation, the amount of legal …” „… the company’s legal capital is formed of remain preserved (cf. Art 45 mn. 6). It is therefore all the …” „… more important that the Directive fulfils its purpose to ensure that when the legal capital is formed …”

Tobias de Raet Article 96 Examination of the draft terms of merger by experts S. 528-534

„… protect minority shareholders which do not have the legal or actual power to obtain information about the …” „… companies. Such experts may, depending on the laws of each Member State, be natural or legal persons or …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 b) Appointment or approval by a judicial or administrative authority . . . . . 8 c) Legal quality …”

Alexander Schall, David Günther, Michael Lamsa Article 26 Information on letters and order forms S. 142-143

„… number of the company in that register; (b) the legal form of the company, the location of its registered …” „… number, legal form, seat, and if the referenced company is winding up. In regard to company capital, the …” „… companies registers which now forms part of the Directive. The (i) registers of the Member States (see Art …”

Article 60 Acquisition of own shares Jan P. Brosius S. 286-297

„… legal framework remain to the discretion of the Member States, which are, however, bound by the …” „… Due to the significant effects on the company’s legal capital the acquisition of own shares had been …” „… , Article 60 (former Article 21 of Directive 2012/30/EU) was amended by Directive 2006/68/EC with the …”

Alexander Schall, David Günther, Michael Lamsa Article 25 Financing S. 141-142

„… concern the structural (Art 22), operational (Art 23), legal (Art 24) and financial (Art 25) organisation …” „… now forms part of the Directive. The (i) registers of the Member States (see Art 16 para. 1), (ii) the …” „… ) together form the European system of interconnection of registers which also referred to as Business …”

Klaus Bader, Andreas Börner Article 160 c Procedures and formalities S. 746-748

„… terms of a cross-border division shall include at least the following particulars: (a) the legal form …” „… and name of the company being divided and the location of its registered office, and the legal form …” „… Formwechsel nach dem EU-Company Law Package’ ZIP (355) 2019, 4. Art 160 c Procedures and formalities 746 …”

Hanno Merkt Accounting and Auditing Law of the European Union S. 809-835

„… public or private limited liability companies as specified in Annex I or in a comparable legal form of a …” „… layout/report form). In case both formats are allowed, it is up to the undertakings to choose the layout. It is …” „… presentation of the statutes in their present form, the following text will follow the structure of the …”

Alexander Schall, David Günther, Michael Lamsa Article 28 Penalties S. 143-144

„… are: register, register number, legal form, seat, and if the referenced company is winding up. In …” „… Directive: “Such disclosure, with the exception of the powers of representation, the name and legal form …” „… II. Particulars in Letters, Order Forms and on the Company Website The particulars to be quoted …”

Peter Kindler, Simon Jobst Article 28 a Online registration of branches S. 150-156

„… online registration may be carried out by submitting information or documents in electronic form …” „… the necessary legal capacity and that they have authority to represent the company; Art 28 a Online …” „… implementation.5 The creation of rules on the verification of legal capacity and authority to represent the …”

Article 64 Financial assistance by a company for acquisition of its shares by a third party Jan P. Brosius S. 305-317

„… Many legal scholars consider Article 64 to be a general prohibition of leveraged buyouts and any form …” „… cancellation of the shares must be made subject to the same rules that apply to the legal holding of own shares …” „… United Kingdom.8 In this regard, many legal scholars refer to the statements in the minutes of the …”

Karsten Kühnle Article 86 c Procedures and formalities S. 404

„… ) the legal form and name of the company in the departure Member State and the location of its …” „… registered office in that Member State; (b) the legal form and name proposed for the converted company in the …” „… Article 86 c Procedures and formalities In compliance with Union law, the law of the departure …”

Klaus Bader, Andreas Börner Article 160 f Independent expert report S. 763-766

„… Member State, the expert may be a natural or legal person. 2. The report referred to in paragraph 1 shall …” „… legal or a natural person, Article 160 f (1). The procedure for appointing the expert is not laid down …” „… addressed to the members, so that they can form their own opinion on the cross-border division. The expert …”

Tobias de Raet Article 129 Date on which the cross-border merger takes effect S. 669-670

„… legal form of each merging company and of the company resulting from the merger. The registers shall …” „… states that the effective date may not be prior to the date on which the legal scrutiny pursuant to …” „… pre-merger certificate pursuant to Article 127 has been issued, which is the prerequisite for the legal …”

Tobias de Raet Article 127 Pre-merger certificate S. 658-665

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4. Form of the pre-merger certificate …” „… ensures that the legal scrutiny of the merger is carried out with appropriate expertise and that the …” „… case of a merger by formation of a new company, the Member State in which such a company is formed). In …”

Alexander Schall, David Günther, Michael Lamsa Article 19 Fees chargeable for documents and information S. 137-138

„… free of charge through the system of interconnection of registers: (a) the name or names and legal form …” „… and in legal proceedings and information as to whether the persons authorised to represent the company …” „… proceedings of the company and on the striking-off of the company from the register, if this entails legal …”

Alexander Schall, David Günther, Michael Lamsa Article 18 Availability of electronic copies of documents and particulars S. 136-137

„… registers: (a) the name or names and legal form of the company; (b) the registered office of the company and …” „… access point for legal information, judicial and administrative institutions. However, pursuant to Art 22 …” „… represent it in dealing with third parties and in legal proceedings and information as to whether the …”

Alexander Schall, David Günther, Michael Lamsa Article 16 a Access to disclosed information S. 135-136

„… divergent legal situation (Art 16 para. 5 subpara. 1). But only constitutive knowledge of the true …” „… legal situation costs the third party the right to invoke the state of the register.18 Finally, there is …” „… or electronic form) of the whole or partial text must be obtainable (Art 16 a para. 4). Everyone is …”

Jan Lieder, Martin Bialluch Article 12 Voting by correspondence S. 967-968

„… sufficient, in particular e-mails, computer screen forms, internet dialogues, SMS or other instant messages.8 …” „… right to vote, while Article 8 SRD covers all forms of participation (→ Art 8 mn. 4) in the general …” „… , it is not entirely certain which forms of correspondence are covered here. However, the question is …”

Silja Maul, Larissa Furtwengler Article 4 Supervisory authority and applicable law S. 988-994

„… authorities receiving the information are subject. Cooperation shall include the ability to serve the legal …” „… not affect the power which courts may have in a Member State to decline to hear legal proceedings and …” „… affect the power of the Member States to determine the legal position concerning the liability of …”

Peter Kindler Article 33 Disclosure in cases of multiple branches in a Member State S. 177-179

„… branches of companies that have been struck off the register as a consequence of any change in the legal …” „… form of the company concerned, a merger or division, or a cross-border transfer of its registered …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. Companies that have been struck off the register but which have a ‘legal successor …”

Peter Kindler Article 38 Limits of compulsory disclosure of accounting documents S. 193-196

„… , see Art 30(1)(h). Like the opening of a branch, its closing is a fact, not a legal act. The branch as …” „… such has no legal personality (see Art 37(h) indent 2 of the Directive: ‘… permanent representatives of …” „… defines the form and the contents of the documents subject to disclosure at the branch.1 The EU standards …”

Jan P. Brosius Article 49 Experts’ report on consideration other than in cash S. 245-251

„… administrative or judicial authority. Such experts may be natural persons as well as legal persons and companies …” „… aims to ensure that the company’s legal capital is effectively covered by assets.5 However, Article 49 …” „… well as legal persons and companies or firms under the laws of each Member State. The reference made to …”

Alexander Schall, David Günther, Michael Lamsa Article 13 f Information requirements S. 115-116

„… State to provide information on the legal effects and consequences of registrations under its national …” „… submitting documents or information in electronic form, including electronic copies of the documents and …” „… the following: (a) the procedures to ensure that the applicants have the necessary legal capacity and …”

Klaus Bader, Andreas Börner Article 160 o Scrutiny of the legality of the cross-border division S. 797-799

„… recipient companies, respectively, the registration number, name and legal form of the company being divided …” „… only apply to the legal assessment, but also to the underlying information (Recital 45), i.e. the facts …” „… the legal scrutiny. Article 160 p Registration 1. The laws of the Member States of the company being …”

Tobias de Raet Article 126 Approval by the general meeting S. 643-648

„… comply with the legal requirements. I. Approval of the General Meeting …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 IV. Limitation of Legal Challenges …” „… prerequisite to a European model for structural measures,1 which is also to be found in other European legal …”

Silja Maul, Larissa Furtwengler Introduction S. 979-981

„… Commission presented a new draft6 that included a duty of neutrality and a form of breakthrough-lite …” „… revision in Art 20 of the Directive.8 The following areas of potential revision were determined: (1) legal …” „… protect the legal position of employees in cases of takeovers. 2 Report on takeover and other bids – Dok …”

Article 66 Acceptance of the company’s own shares as security Jan P. Brosius S. 320-322

„… other company is governed by the law of a third country and has a legal form comparable to those listed …” „… acceptance of the company's own shares as security. Article 66 comprises any form of security, particularly …” „… any security assignments, pledging or any other forms of encumbrances. Article 66 applies both to the …”

Jan P. Brosius Article 46 Assets S. 233-235

„… . However, an undertaking to perform work or supply services may not form part of those assets. I …” „… .9 Further, many legal scholars argue that, in general, the respective assets do not need to be …” „… services as well.12 Such exclusion is necessary as their legal existence, enforceability and value is not …”

Peter Kindler Article 29 Disclosure of documents and particulars relating to a branch S. 159-163

„… legal form of the company and the name of the branch, if that is different from the name of the company …” „… companies register. Thus legal certainty vis-à-vis the Member State of the branch and the public is …” „… European Union. There are no exemptions as to single Member States as can be found in other legal …”

Tobias de Raet Article 121 Conditions relating to cross-border mergers S. 603-605

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. Limitation of the Permissible Types of Merger The former Article 121(1)(a) of the 2017 …” „… Considering the wording of the former Article 121(1)(a) (“under the national law of the relevant Member States …” „… requirements of the different legal systems. Rather, the requirements of the jurisdictions, to which the …”

Jan P. Brosius Article 6 Multiple-member companies S. 85-87

„… legal minimum after incorporation of the company shall not lead to the automatic dissolution of the …” „… (former Article 12 of Directive 2009/101/EC) pursuant to which, the nullity of a company may only either …” „… since. III. Purpose Article 6 aims to protect shareholders and creditors. It seeks to provide legal …”

Silja Maul, Larissa Furtwengler Article 5 Protection of minority shareholders, the mandatory bid and the equitable price S. 994-999

„… include the ability to serve legal documents necessary to enforce measures taken by the competent …” „… natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in …” „… obligation for a mandatory bid is triggered in cases in which a natural or legal person holds the percentage …”

Jan Lieder, Martin Bialluch Article 3 c Facilitation of the exercise of shareholder rights S. 879-882

„… two options would be completely cut off from the shareholder. This would contradict the legal …” „… referring to “the necessary arrangements”, the Directive once again makes use of a vague set of legal terms …” „… . Voting Confirmation (Para. 2) Paragraph 2 reflects the need for legal certainty.8 On the one hand, the …”

Silja Maul, Larissa Furtwengler Article 1 Scope S. 981-983

„… unitary scope of application of the Directive to assure the implementation of Art 50 (2)(g) TFEU (former …” „… Directive shall apply and therefor forms the basis of the Directive as such. It is closely related to Art 2 …” „… subject of a bid; (c) ‘offeror’ shall mean any natural or legal person governed by public or private law …”

Alexander Schall, David Günther, Michael Lamsa Article 13 Scope S. 110-111

„… regards cross-border conversions, mergers and divisions – which also forms part of the Company Law Package …” „… identification under which electronic identification means are issued to natural or legal persons, or natural …” „… persons representing legal persons, e.g. the online identity card function of the identity card. Article …”

Jan P. Brosius Article 72 Increase in capital by consideration in cash S. 346-358

„… capital represented by their shareholdings from being diluted.”3 Some legal scholars praised Article 72 as …” „… “an illustration of the skilful blending of comparative legal material, taken from the laws and …” „… Schmidtthoff, (1978) CMLR 43, 53. 5 Hurst, (1974) 2 Legal Issues of European Integration 63, 70 et seq.; see …”

Klaus Bader, Andreas Börner Article 160 t Independent experts S. 806-807

„… to ensure that: (a) the expert, or the legal person on whose behalf the expert is operating, is …” „… 160 f in its final form does not require an appointment of the independent expert by the competent …” „… way ensures legal certainty for the companies involved in the cross-border division as well as the …”

Tobias de Raet Article 107 Civil liability of the experts responsible for drawing up the expert report on behalf of the company being acquired S. 559-560

„… certified in due legal form, or if it is shown that the decision of the general meeting is void or voidable …” „… involved in the merger. Member States are, furthermore, free to specify the legal consequences of any …” „… Mergers Article 106 also applies to mergers by formation of a new company (cf. Article 109(1)). Pursuant …”

Klaus Bader, Andreas Börner Article 160 j Protection of creditors S. 778-784

„… in the legal literature advocate for not introducing the concept of the solvency declaration into …” „… time of the disclosure (Article 160j(1)). Creditors to be protected could comprise current and former …” „… expressly specify the legal effects of a challenge by the creditors, in particular whether such challenge …”

Klaus Bader, Andreas Börner Article 152 Civil liability of members of the administrative or management bodies of a company being divided S. 720-721

„… supervision of their legality, or if they have not been drawn up and certified in due legal form, or if it is …” „… , without there being any further legal acts required.12 Further, no liquidation procedure is necessary …”

Jan Lieder, Martin Bialluch Article 17 Addressees S. 976-979

„… legally self-contained and can be applied as such by any court.13 Indefinite legal concepts alone do not …” „… leave to the national authorities the choice of form and methods. Nevertheless, Article 17 SRD has its …” „… legal effects of directives, see above → Art 15 mn. 4. In contrast, where the Commission has the power …”

Dieter Leuering Article 7 [Single-member enterprise with limited liability] S. 853-855

„… , in which a single-member legal form, the E.I.R.L. (estabelecimen-to individual de responsabilida de …” „… suitable as a group module. They often lack the necessary legal personality.3 However, it is not sufficient …” „… formation of single-member companies where its legislation provides that an individual entrepreneur may set …”

Klaus Bader, Andreas Börner Article 142 Examination of the draft terms of division by experts S. 705-707

„… legal persons or companies or firms. 2. Article 96(2) and (3) shall apply. I. Examination of the Draft …” „… may be a legal or a natural person. The procedure for appointing the expert is not laid down in the …” „… members, because the main purpose of the report is to enable them to form their own informed opinion on …”

Jan Lieder, Martin Bialluch Article 9 Right to ask questions S. 914-919

„… whether certain formal requirements must be followed.16 Ultimately, the legal and practical details on how …” „… , it is the content of the questions that matters, not their specific formulation or form. Therefore …” „… the perspective of a reasonable shareholder in order to form an informed and appropriate judgment with …”

Alexander Schall, David Günther, Michael Lamsa Article 14 Documents and particulars to be disclosed by companies S. 125-129

„… company in dealings with third parties and in legal proceedings; it shall be apparent from the disclosure …” „… Member States where striking off the register entails legal consequences, the fact of any such striking …” „… form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 (1) Council …”

Alexander Schall, David Günther, Michael Lamsa Article 27 Persons carrying out disclosure formalities S. 143

„… are: register, register number, legal form, seat, and if the referenced company is winding up. In …” „… II. Particulars in Letters, Order Forms and on the Company Website The particulars to be quoted …” „… documents (lit a) and the particulars in in letters, order forms and on the company website (lit b) by …”

Article 65 Additional safeguards in case of related party transactions Jan P. Brosius S. 317-320

„… Legal Affairs of the European Parliament pointed out that such provision would be inconsistent with …” „… counterparties. IV. Scope Article 65 provides that in the event certain natural or legal persons that are the …” „… ) controls alone, pursuant to an agreement with other shareholders in the company (form and contents of such …”

Jan P. Brosius Article 58 Serious loss of the subscribed capital S. 280-283

„… has to be called. Some legal scholars wrongly conclude that national laws shall provide that the …” „… .): Das Kapital der Aktiengesellschaft in Europa, p. 134, 137; critical on Article 58 (former Article 19 …” „… Directive does not provide for legal consequences in case the general meeting is not called in or does not …”

Alexander Schall, David Günther, Michael Lamsa Article 13 i Disqualified directors S. 123-124

„… possible to form a company with templates in such language. Article 13 i Disqualified directors 1. Member …” „… information. 5. Member States may continue to allow forms of filing other than those referred to in paragraph …” „… bodies mandated under national law to deal with such forms of filing. Art 13 j further strengthens the …”

Klaus Bader, Andreas Börner Article 160 u Validity S. 807-809

„… the new rules for cross-border divisions. While Article 160 f in its final form does not require an …” „… division may be declared null and void in this way ensures legal certainty for the companies involved in …” „… . With regard to the presentation of the statutes in their present form, the following text will follow …”

Peter Kindler Article 40 Penalties S. 198-201

„… as follows: ‘If, before a company being formed has acquired legal personality, action has been …” „… forms of the compulsory particulars provided for in Articles 35 and 39. I. General Features …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Omission of particulars from letters and order forms …”

Jan P. Brosius Article 68 Decision by the general meeting on the increase of capital S. 330-339

„… to banks constituted in the form of public limited liability companies (cf. → Art 44 mn. 16).14 Even …” „… in the legal structuring of their shares. As the Commission stated in its first proposal, Article 68 …” „… question that has received much attention from the Court of Justice and legal scholars is whether and when …”

Klaus Bader, Andreas Börner Article 155 Definition of a ‘division by the formation of new companies’ S. 724-725

„… Klaus Bader and Andreas Börner 3 4 5 I. Division by Formation of New Companies The legal concept of …” „… ), the draft terms of division shall indicate the form, name and registered office of each of the new …” „… by formation of new companies the beneficiary companies are created only during the process of the …”

Jan P. Brosius Article 53 Shareholders' obligation to pay up contributions S. 268-269

„… account legal capital’s twofold nature as the sum of all contributions and a security for creditors.2 III …” „… release or waiver, irrespective of its form or method and does not allow any circumvention.3 A reduction …” „… formation of the company as well as to any subsequent capital increase. It complements the rules laid down …”

Silja Maul, Larissa Furtwengler Article 9 Obligations of the board of the offeree company S. 1005-1008

„… shareholders shall approve or confirm any decision which does not form part of the normal course of the …” „… implemented as far as it pertains to decisions that do not form part of the normal course of the company’s …” „… been implemented, if they do not form part of the normal course of the company’s business and the …”

Jan P. Brosius Article 70 Shares issued for consideration other than in cash S. 341-345

„… administrative or judicial authority. Such experts may be natural persons as well as legal persons and companies …” „… or supply services may not form part of those assets. IV. Time Limit Article 71 (1) stipulates that …” „… waive the experts’ report under the former Third Directive11, now laid down in Articles 87 et seqq. of …”

Jan P. Brosius Article 54 Safeguards in the event of conversion S. 269-271

„… 53 apply to any release or waiver, irrespective of its form or method and does not allow any …” „… new company. The principle of continuation of the legal entity applies. III. Minimum Provision As …” „… respect of the formation of public limited liability companies and the maintenance and alteration of their …”

Tobias de Raet Article 126 c Employee information and consultation S. 656-658

„… are exercised in accordance with the legal framework provided for in Directive 2002/14/EC, and …” „… meeting referred to in Article 126. Since there is no express statement about the form or the details …” „… consequences of errors (including liability) as well as formalities (where to publish, which language(s …”

Tobias de Raet Article 94 Derogation from the requirement of approval by the general meeting of the acquiring company S. 522-524

„… of merger and setting out the legal and economic grounds for them, in particular the share exchange …” „… . Form of the report …” „… does not apply to mergers by formation of a new company (cf. Article 109(1)). In this case the approval …”

Jan P. Brosius Article 79 Reduction in the subscribed capital by compulsory withdrawal of shares S. 370-374

„… in accordance with Article 16 (former Article 3 of Directive 2009/101/EC), pursuant to which Member …” „… , Article 79, just as Article 78, intends to provide for minimum safeguards for this legal measure which is …” „… has to be published in accordance with Article 16 (former Article 3 of Directive 2009/101/EC …”

Klaus Bader, Andreas Börner Article 146 Protection of the interests of creditors of companies involved in a division; joint and several liability of the recipient companies S. 711-714

„… other. The former appeared particularly vulnerable, as they are not only assigned a new debtor without …” „… national legal systems which make the ultimate division subject to the approval of a meeting of debenture …”

Jan Lieder, Martin Bialluch Article 5 Information prior to the general meeting S. 896-902

„… formally incorrect notices of meeting are one of the most frequent reasons for legal action for rescission …” „… , notably the forms to be used to vote by proxy and the means by which the company is prepared to accept …” „… after the company has received them; (e) where applicable, the forms to be used to vote by proxy and to …”

Tobias de Raet Article 120 Further provisions concerning scope S. 598-603

„… possibility to establish a Societas cooperativa europaea (SCE)13 reduces the need to implement a legal …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 I. Limitation of the Permissible Types of Merger The former Article 121(1)(a) of the 2017 …” „… Considering the wording of the former Article 121(1)(a) (“under the national law of the relevant Member States …”

Jan P. Brosius Article 50 Derogation from the requirement for an experts' report S. 251-258

„… , partnerships or other entities, and depositary receipts in respect of shares, (b) bonds or other forms of …” „… constitute an exceptional circumstance. However, exceptionality requires a form of market failure or an …” „… do so may lead to liability; Member Sates have to provide respective legal framework. Minority …”

Jan P. Brosius Article 52 Substantial acquisitions after incorporation or authorisation to commence business S. 261-268

„… 49 mn. 11 et seqq.). Such report has to be published in accordance with Article 16 (former Article 3 …” „… account legal capital’s twofold nature as the sum of all contributions and a security for creditors.2 III …” „… within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of …”

Jan Lieder, Martin Bialluch Article 2 Definitions S. 863-869

„… of the European Parliament and of the Council; (b) ‘shareholder’ means the natural or legal person …” „… natural or legal person by a shareholder to exercise some or all rights of that shareholder in the general …” „… Directive for its management; (g) ‘proxy advisor’ means a legal person that analyses, on a professional and …”

Jan P. Brosius Article 47 Issuing price of shares S. 235-239

„… 1976. Its material content has not been amended since. Legal Scholars argue that the provision on the …” „… .6 The concept of share capital It can be derived from Article 47 that the company’s legal capital …” „… , the amount of the company’s legal capital represented by each share can be calculated from the total …”

Tobias de Raet Article 131 Consequences of a cross-border merger S. 672-677

„… merger may be entered in the register kept at the registered seat of the acquiring legal entity only once …” „… it has been entered in the register kept at the registered seat of each of the legal entities being …” „… having jurisdiction at the registered seat of the acquiring legal entity is to notify, ex officio, the …”

Karsten Kühnle Foreword to Arts 86a-86 t S. 390-398

„… Selskabsstyrelsen [1999] ECR I-01459. Foreword to Arts 86a-86 t 390 Karsten Kühnle 7 1 a European legal framework on …” „… company established under the laws of a Member States gets deprived of its capacity to be party to legal …” „… Member State must not refuse recognition of legal capacity in such case and any requirement of …”

Jan Lieder, Martin Bialluch Article 14 Voting results S. 971-973

„… prejudice to any legal rules that Member States have adopted or may adopt concerning the formalities …” „… required in order for a resolution to become valid or the possibility of a subsequent legal challenge to …” „… duty to establish the voting result is to be transposed without prejudice to any legal rules that …”

Jan Lieder, Martin Bialluch Article 3 a Identification of shareholders S. 870-876

„… . 5. Member States shall ensure that legal persons have the right of rectification of incomplete or …” „… through complex chains of intermediaries. In corporate legal practice, this kind of mediation may impede …” „… legal claim against intermediaries. The principle of “know your shareholder” applies.4 Although the …”

Klaus Bader, Andreas Börner Article 160 r Consequences of a cross-border division S. 802-806

„… Consequences for “Indivisible” Legal Positions …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 I. Consequences of the Cross-Border Division The legal consequences of the cross-border division …” „… of Assets, Rights, Contracts and Liabilities, and Consequences for “Indivisible” Legal Positions In a …”

Klaus Bader, Andreas Börner Article 141 Detailed written report and information on a division S. 703-705

„… terms of division and setting out the legal and economic grounds for them, in particular the share …” „… share exchange ratio must be explained and justified in legal and economic terms; furthermore, potential …” „… in legal and economic terms; this stipulation is particularly important in all cases of …”

Tobias de Raet Article 134 Validity S. 686-688

„… . Member States shall have rules in place to ensure that: (a) the expert, or the legal person on whose …” „… void in this way ensures legal certainty for the companies involved in the merger and the general …” „… doubt, prohibit the initiation of legal proceedings against the merger prior to it becoming effective.3 …”

Peter Kindler Article 42 Exemptions to provisions on disclosure of accounting documents for branches S. 202-204

„… that national law can determine that legal representatives shall carry out the disclosure formalities …” „… company in legal proceedings, Sections 2 and 3 in Chapter III pertaining to disclosure mention ‘the …” „… Directive, and they too, by definition, are authorised to represent the company in legal proceedings. It …”

Karsten Kühnle Article 86 s Independent experts S. 487-489

„… . Member States shall have rules in place to ensure that: (a) the expert, or the legal person on whose …” „… damages suffered as a result of the independent expert’s assessment, they may want to take legal action …” „… element of legal uncertainty is attached thereto.5 Civil liability vis-à-vis the company Without doubt …”

Tobias de Raet Article 89 Definition of a ‘merger by acquisition’ S. 505-509

„… a New Company Article 90 contains the legal definition of a ‘merger by formation of a new company …” „… But as they are in many legal and economic aspects similar to mergers, the Directive ensures that …” „… one juridical person/legal entity to the other by separate legal acts.2 This concept is, however, not …”

Article 59 No subscription of own shares S. 283-286

„… and indispensable in a system of legal capital and complements, inter alia, the provision laid down in …” „… the scope of the prohibition by implementing the legal fiction that whenever shares are subscribed for …” „… nullity, the Commission considered this to be the smoother legal consequence.9 In case of a breach of …”

Article 62 Consequences of illegal acquisition of own shares Jan P. Brosius S. 301-302

„… 62 governs the legal consequences of a violation of Articles 60 and 61, i.e. of an unlawful …” „… disposed of. The European legislature did not opt for the legal consequence of nullity of a transaction …” „… violating Articles 60 and 61. The legal obligation to dispose of the respective shares was considered more …”

Peter Kindler Article 41 Persons carrying out disclosure formalities S. 201-202

„… persons who are authorised to represent the company in legal proceedings, Sections 2 and 3 in Chapter III …” „… 1, emphasis added). It follows that national law can determine that legal representatives shall …” „… represent the company in legal proceedings. It follows that national law can determine that permanent …”

Alexander Schall, David Günther Article 8 Effects of disclosure with respect to third parties S. 96-97

„… founders) is achieved in an alternative way as follows: As long as the company is not erected yet, legal …” „… legal situation. Article 9 Acts of the organs of a company and its representation 1. Acts done by the …” „… company may, in derogation from the legal rules governing the subject, be conferred by the statutes on a …”

Tobias de Raet Article 105 Consequences of a merger S. 553-557

„… . without any further legal actions being required.1 Although the general approach of the Directive is to …” „… company ipso iure, i.e. without any further legal actions being required.4 It is neither possible to …” „… escaping the legal consequences of offences it has committed to the detriment of the Member State concerned …”

Klaus Bader, Andreas Börner Article 157 Divisions under the supervision of a judicial authority S. 727-729

„… judicial authority. These special arrangements were introduced as a concession to the UK, whose legal …” „… system did not recognize either mergers or divisions as a separate legal institution.1 As expected, both …” „… legislation; the German legal system does not recognize comparable instruments of judicial control over …”

Jan P. Brosius Article 57 Recovery of distributions unlawfully made S. 277-280

„… distributions. Capital maintenance and issuer liability are two separate legal concepts each with its own …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. Overview Article 57 provides for the legal consequences of an unlawful distribution pursuant …” „… negligence required.4 Some legal scholars argue that gross negligence is required. However, taking into …”

Article 13 a Definitions S. 111

„… electronic identification under which electronic identification means are issued to natural or legal persons …” „… , or natural persons representing legal persons, e.g. the online identity card function of the identity …” „… ; (4) ‘formation’ means the whole process of establishing a company in accordance with national law …”

Klaus Bader, Andreas Börner Article 150 Publication formalities S. 716-717

„… regulated by national law. However, in the interests of legal certainty, the EU legislator obliged its …” „… eight days after the execution of the deed, each legal person involved in the division shall procure the …” „… of divisions by formation of new companies. Any recipient company may carry out the publicity …”

Klaus Bader, Andreas Börner Article 140 Derogation from the requirement of approval by the general meeting of a recipient company S. 702-703

„… legal and economic grounds for them, in particular the share exchange ratio and the criterion …” „… share exchange ratio must be explained and justified in legal and economic terms; furthermore, potential …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Formal requirements …”

Karsten Kühnle Article 86 n Transmission of the pre-conversion certificate S. 478-479

„… the examination of the legal scrutiny of the cross-border conversion as done by the authority in the …” „… and more redundant. From a German legal perspective, the comparably 30 J. Schmidt, ‘Cross-border …” „… the applicable pre-conversion procedures and formalities in the departure Member State, without which …”

Jan Lieder, Martin Bialluch Article 3 h Investment strategy of institutional investors and arrangements with asset managers S. 887-889

„… . Relationship to Other EU Legal Acts (Para. 3) Particularly with regard to conflicts of interest, paragraph 3 …” „… legal interactions, subparagraph 2 requires Member States to allow institutional investors governed by …” „… company, and then “apply them consistently”.13 II. Format and Costs of Disclosure (Para. 2) The …”

Jan Lieder, Martin Bialluch Article 3 i Transparency of asset managers S. 889-891

„… legal interactions, subparagraph 2 requires Member States to allow institutional investors governed by …” „… investors it is crucial to set a minimum set of legal requirements, so that they can properly assess, and …” „… by Member States if the information is already publicly available anyway. III. Format and Costs of …”

Tobias de Raet Article 126 b Protection of creditors S. 653-656

„… required. Consequences for the merger taking effect Article 126 b does not expressly specify the legal …” „… in relation to the cross-border merger and are exercised in accordance with the legal framework …” „… solvency declaration, e.g. the consequences of errors (including liability) as well as formalities (where …”

Silja Maul, Larissa Furtwengler Article 12 Optional arrangements S. 1014-1018

„… shareholders that loose their legal statuses due to the breakthrough rule. The terms for determining such …” „… states the status quo would remain. Since political and legal reasons did not allow for excluding third …” „… . The following three reasons were central in its formulation and negotiation: First of all, no …”

Tobias de Raet Article 132 Simplified formalities S. 677-680

„… purpose of calculating the 100 % threshold; rather legal ownership of the shares is always required.4 The …” „… 678 Tobias de Raet 1 2 3 4 5 6 shares as one of the key legal consequences of a cross-border merger …” „… Article 132 Simplified formalities 1. Where a cross-border merger by acquisition is carried out …”

Jan P. Brosius Article 75 Safeguards for creditors in case of reduction in the subscribed capital S. 362-365

„… Directive to stipulate requirements for the legal consequences in case of a breach of law. It provides that …” „… of discretion. Legal Scholars argue that this provision was inspired by French law.13 Further …” „… formation of public limited liability companies and the maintenance and alteration of their capital, with a …”

Article 63 Holding of own shares and annual report in case of acquisition of own shares Jan P. Brosius S. 302-305

„… regard to the company’s legal capital this is true as the value of shares corresponds to the contribution …” „… to the legal holding of own shares. VI. Minimum Provision As follows from the provision’s very …” „… meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited …”

Jan Lieder, Martin Bialluch Article 3 j Transparency of proxy advisors S. 891-895

„… , legal, regulatory and company-specific conditions into account; (e) the essential features of the voting …” „… definition of Article 2(g) SRD, which describes proxy advisors as legal persons that analyse, on a …” „… II. Format and Costs of Disclosure (Para. 2) As paragraph 1 provides for reports on an annual …”

Tobias de Raet Article 99 Protection of the interests of creditors of the merging companies S. 541-545

„… is the obligation of the Member States to adopt a legal framework for the protection of creditors.16 …” „… creditors of the legal entities involved in the merger cannot demand satisfaction of their claims, security …” „… Application in Regard to Other Types of Mergers Article 99 also applies to mergers by formation of a new …”

Klaus Bader, Andreas Börner Article 160 s Simplified formalities S. 806

„… to ensure that: (a) the expert, or the legal person on whose behalf the expert is operating, is …” „… Simplified formalities Where a cross-border division is carried out as a division by separation, points (b …”

Alexander Schall, David Günther, Michael Lamsa Article 13 e Payments S. 115

„… State to provide information on the legal effects and consequences of registrations under its national …” „… a Member State. Art 13 e is intended to ensure that an online formation can also be paid for online …” „… Single Digital Gateway to assist in the formation of companies and the registration of branches. The …”

Peter Kindler Article 43 Contact Committee S. 204

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 3. Legal relationship between shareholders and company . . . . . . . . . . . . . . . . . . . 38 4 …” „… this regard, the Directive is merely a compilation of formerly separate and individual legislative acts …” „… of the formation of public limited liability companies and the maintenance and alteration of their …”

Klaus Bader, Andreas Börner Article 149 Date on which a division takes effect S. 716

„… regulated by national law. However, in the interests of legal certainty, the EU legislator obliged its …” „… of divisions by formation of new companies. Any recipient company may carry out the publicity …” „… following the date on which the deed has been executed. Article 150 Publication formalities 1. A division …”

Tobias de Raet Article 90 Definition of a ‘merger by the formation of a new company’ S. 509

„… Company Article 90 contains the legal definition of a ‘merger by formation of a new company’. While a …” „… Article 90 Definition of a ‘merger by the formation of a new company’ 1. For the purposes of this …” „… Chapter, ‘merger by the formation of a new company’ shall mean the operation whereby several companies are …”

Alexander Schall, David Günther, Michael Lamsa Article 17 Up-to-date information on national law with regard to the rights of third parties S. 136

„… access point for legal information, judicial and administrative institutions. However, pursuant to Art 22 …” „… 14 are available through the system of interconnection of registers in a standard message format and …”

Klaus Bader, Andreas Börner Article 160 n Transmission of the pre-division certificate S. 796-797

„… ) of Article 160m(7)). The pre-division certificate thus confirms compliance with the national legal …” „… the right to make the pre-division certificate subject to further formal or content-related …” „… conditions have been properly fulfilled and formalities properly completed in the Member States of the …”

Klaus Bader, Andreas Börner Article 159 Divisions without the company being divided ceasing to exist S. 730-731

„… ”, the essential characteristics of which, according to the legal definitions in Article 136(1) and …” „… least one recipient company, being a public or private limited liability company, is formed on the …” „… Chapter shall apply to cross-border divisions of limited liability companies formed in accordance with the …”

Tobias de Raet Article 104 Publication formalities S. 552-553

„… further legal consequences, inter alia, whether third parties or the 1 Cf. Edwards, EC Company Law (1999 …” „… Application in Regard to Other Types of Mergers Article 103 also applies to mergers by formation of a new …” „… . Article 110 sentence 2). Article 104 Publication formalities 1. A merger shall be publicised in the manner …”

Alexander Schall, David Günther, Michael Lamsa Article 24 Implementing acts S. 140-141

„… ), legal (Art 24) and financial (Art 25) organisation of the Europen central platform that shall …” „… standard message format for the purpose of the exchange of information between the registers, the platform …” „… Alexander Schall, David Günther and Michael Lamsa formation, and the specification defining the information …”

Tobias de Raet Article 100 Protection of the interests of debenture holders of the merging companies S. 545-546

„… , referring to Article 14. 4 See in particular in the French legal system: Article 380 Loi n°66-537 du …” „… Application in Regard to Other Types of Mergers Article 99 also applies to mergers by formation of a new …” „… formation of a new company (cf. Article 109(1)) and to upstream-mergers of a 100 % subsidiary into its …”

Tobias de Raet Article 117 Mergers without all of the transferring companies ceasing to exist S. 575-576

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 1. Removal of legal hurdles for cross-border activities of companies . . . . . . . . 35 2 …” „… of limited liability companies formed in accordance with the law of a Member State and having their …”

Karsten Kühnle Article 86 t Validity S. 489-490

„… liability of the expert. At least from a German legal perspective, a liability of the expert vis-à-vis the …” „… independent expert’s report forming the basis for the competent authority’s assessment whether the …”

Klaus Bader, Andreas Börner Article 158 Divisions with cash payment exceeding 10 % S. 729-730

„… to the legal definitions in Article 136(1) and Article 155(1), include not only the exchange of …” „… liability company, is formed on the division and the company being divided acquires all of its shares upon …”

Tobias de Raet Article 109 Merger by formation of a new company S. 564-566

„… merger. This is due to the fact that these documents lay the foundation for the internal legal structure …” „… Pursuant to Article 109(1), Article 108 also applies to mergers by formation of a new company, without …” „… parent company. Section 3 Merger by formation of a new company Article 109 Merger by formation of a new …”

Jan P. Brosius Article 76 Derogation from safeguards for creditors in case of reduction in the subscribed capital S. 365-367

„… of the company. Again, the provision leaves Member States great scope of discretion. Legal Scholars …” „… formation of public limited liability companies and the maintenance and alteration of their capital, with a …” „… formation of public limited liability companies and the maintenance and alteration of their capital, with a …”

Jan P. Brosius Article 69 Paying up shares issued for consideration S. 339-341

„… well as legal persons and companies and firms under the laws of each Member State. Article 49(2) and (3 …” „… apply to the formation of the company also apply to a capital increase.7 In this respect, the comments …” „… formation of public limited liability companies and the maintenance and alteration of their capital, with a …”

Jan Lieder, Martin Bialluch Article 3 g Engagement policy S. 885-887

„… made to their published information. III. Relationship to Other EU Legal Acts (Para. 3) Particularly …” „… ”.13 II. Format and Costs of Disclosure (Para. 2) The information referred to in paragraph 1 must be …”

Tobias de Raet Article 110 Transfer of all assets and liabilities by one or more companies to another company which is the holder of all their shares S. 566-568

„… legal structure of the new company and should, therefore, be approved by all shareholders of the …” „… to exist are transferred to the new company by means of a contribution, mergers by formation of a new …” „… in Article 49(5), Member States may, however, choose not to apply Article 49 to the formation of a …”

Tobias de Raet Article 92 Publication of the draft terms of merger S. 514-518

„… company registers in the national legal systems for the information of third parties. At the same time, a …” „… mergers by formation of a new company. Article 91 applies also in the case of an upstream-merger of a 100 …” „… , receive the information in a timely and formalized manner1 which enables them to make an informed decision …”

doi.org/10.5771/9783845279909

Chris Thornhill, Samantha Ashenden - Legality and Legitimacy: Normative and Sociological Approaches

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Chris Thornhill (ed.), Samantha Ashenden (ed.)

Legality and Legitimacy: Normative and Sociological Approaches

Series: Studien zur Politischen Soziologie. Studies on Political Sociology

Volume 6 2010

Results in this title

Kirsten Campbell From legitimacy to legality: The problem of the global legal form S. 255-276

„… 255 From legitimacy to legality: The problem of the global legal form Kirsten Campbell In 2004 …” „… relations that is not reducible to the legitimation of rule. It argues that this legal form expresses the …” „… should necessarily take a legal form. There are clearly many forms of global ordering. However, the …”

Inger-Johanne Sand Legitimacy in global and international law: A sociological critique S. 145-171

„… forms of legal regulation have also contributed to close interactions and conflicts between legal and …” „… heterarchical interaction and interdependence. The political and legal forms of communication are still vital …” „… expanded in ways that have increasingly challenged the political and legal forms of communication and …”

Gavin W. Anderson Post-colonial legality and legitimacy: The challenge of indigenous people S. 235-255

„… debates over the nature of new legal forms, such as international lex mercatoria, tend to assume the …” „… , the treaties could be unilaterally departed from using the legal forms of the colonial state, such as …” „… knowledge played a central role in maintaining colonial power and domination.69 Western forms of legal and …”

Chris Thornhill Legality, legitimacy and the constitution: A historical-functionalist approach S. 29-57

„… formation was the fact that in specifying legal forms for the use of power and mobilizing manifest consent …” „… the state as a coercive order and as detached from stable or fundamental normative legal form.11 In …” „… differentiation, first, because they provided legal-technical arrangements, usually in written form, that enacted …”

Samantha Ashenden Legality, legitimacy and the circumstances of sociology S. 57-79

„… Weber, that in modernity legitimacy necessarily has legal form. However, following Foucault, one might …” „… add that this legal form is often supplemented and made effective through forms of knowledge and …” „… (commercial) society as existing prior to and as determining political and legal forms. Sociology therefore …”

Samantha Ashenden, Chris Thornhill Introduction S. 7-18

„… the legal form of ‘emergent force-relations’, which expresses ‘global relations as juridical …” „… accurately comprehended if they are seen as elements of the global legal form. Section III: Legitimacy as …” „… legal-normative preconditions of legitimate power. Analogously, though, the initial impetus behind the formation …”

Costas Douzinas Saving cosmopolitanism? Legality without legitimacy S. 215-235

„… theory: that of Jürgen Habermas. For Habermas, legal form democratically legitimated and morally …” „… form of a legal code. We can see the artificiality and contortions of the dividing line between law …” „… debates over the nature of new legal forms, such as international lex mercatoria, tend to assume the …”

Blandine Kriegel The legal and sociological construction of norms S. 19-29

„… Section I: The form of the problem 21 The legal and sociological construction of norms …” „… Blandine Kriegel That there is a divergence between legal and sociological approaches to the twin …” „… law (a law does not necessarily take legislative form). Legitimate authority is authority whose source …”

Pierre Guibentif Sociology among the third-order observers in legitimation processes S. 79-103

„… will of nations, expressed in the legal form of a constitution, on the one hand, and monarchies, on the …” „… a crowd in the form of slogans. Secondly, the set of political regimes in competition, forming the …” „… as I had the opportunity to test in former empirical researches,3 there is a striking …”

Robert Fine Political argument and the legitimacy of international law: A case of distorted modernization S. 197-215

„… actual world, but rather represents the necessary legal form of contemporary capitalist society and its …” „… on common usage, which may substantially differ in form and content from legal definitions. There are …” „… a form of political and legal coordination of a global community subject to norms of political …”

David Saunders The necessary secularism of legitimate authority S. 307-323

„… fellowships’, the political and legal doctrine that the former has endorsed will now have to ‘modernise …” „… political-legal order has been superseded. The concept of becoming ‘post-secular’ is now in play, as if this …” „… were a royal road to re-grounding political-legal order in a legitimating norm. On 19 January 2004 …”

Hauke Brunkhorst Cosmopolitanism and democratic freedom S. 171-197

„… , legal formalism and moral universalism are no longer something specifically Western: Eurocentrism has …” „… , can only form a good will if he or she wants to do so, and if he or she tries to act in accordance …” „… perfect ones come close enough to the ideal form of the zoon politikon. If (for sake of argument) all …”

Darrow Schecter The critique of instrumental reason: Between normative and sociological approaches to legitimate law S. 125-144

„… existing forms of legal rationality, and, what are the implications in terms of the theory and practice of …” „… imagination of philosophers, legal theorists and activists. If one accepts that law and force are coterminous …” „… mediated, which means that critical legal theory may well be in a position to enhance our understanding of …”

Nicholas Turnbull Legitimation in terms of questioning: Integrating political rhetoric and the sociology of law S. 323-340

„… legislature produce formal laws and decisions, they are distinguished from the bureaucracy by a form of …” „… form of depoliticisation for some citizens, greater political participation by others in new social …” „… argumentation does not exist outside the legal and institutional framework which supports it. From the inverse …”

Andreas Hess From Philadelphia to Vitoria via Bonn? Why there is no Constitutional Patriotism in the Basque Country S. 291-307

„… one occasion Amar calls the actual constitutional text “America’s legal city on a hill” (XI) – no …” „… crown’ still continues to be a strong legal position.) Yet, the very definition of UK citizenship …” „… Soviet orbit, played out mainly in the Caucasus region and on the Western fringe of the former SU …”

Titelei/Inhaltsverzeichnis S. 2-6

„… of the global legal form ....................... 255 Section III: Legitimacy as an …” „… .............................................................................................................. 7 Section I: Legality and legitimacy: The form of the problem Chapter 1 Blandine Kriegel …” „… The legal and sociological construction of norms …”

David Sciulli Societal constitutionalism: Procedural legality and legitimation in global and civil society S. 103-125

„… procedural-normative legal integrity, not as formalistic state correctness or right as positivist legality. The …” „… distinct from, and above and beyond, state correctness and rights-formalism, thus legal positivism …” „… David Sciulli Two idealized traditions of political, legal and constitutional discourse and theorizing …”

William Outhwaite Legality and legitimacy in the European Union S. 277-291

„… international treaties, operating through regulations and directives, and with its own legal corpus and court as …” „… projects, which I endorse, to encourage the development of a form of constitutional patriotism which can …” „… unattainable in the form in which it was originally conceived, or anyway undesirable. We should however go …”

doi.org/10.5771/9783845222608

Haxhi Gashi - A Comparative Analysis of the Transformation of State/Social Property

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Haxhi Gashi

A Comparative Analysis of the Transformation of State/Social Property

Series: Schriftenreihe des Zentrums für Europäische Rechtspolitik der Universität Bremen (ZERP)

Volume 66 2013

Results in this title

Forms of Ownership According to Constitutional and Legal Regulation after 1974 S. 151-152

„… have such a right. 5.4.2 Forms of Ownership According to Constitutional and Legal Regulation after 1974 …” „… organizations dealing with agricultural activities in the forms of associated labour.75 The right to use a legal …” „… property has to remain under the workers’ management. But this legal establishment did not clearly …”

Contents S. 11-18

„… Legal Basis for Restitution 97 3.2.2.2 The Forms of Restitution 97 3.2.2.3 The Extension of Restitution …” „… Summary 99 14 3.2.3 The Czech Republic 99 3.2.3.1 Legal Basis for Restitution 100 3.2.3.2 Forms of …” „… Restitution for Religious Organizations 101 3.2.3.5 Summary 102 3.2.4 Former East Germany 102 3.2.4.1 Legal …”

The Lack of Legal Framework for Resolving the Restitution Issue S. 197-198

„… Kosovo lacks this legal requirement for restitution, many former owners have filed lawsuits to the courts …” „… is no legal basis to address the restitution of property of the former owners. 7.4.3 The Negative …” „… , and formulating policy and legal framework on this matter.32 However, this issue still remained …”

Introduction S. 21-30

„… legal challenge in many former socialist states during their transition to democracy and a market …” „… , Croatia and Macedonia. Chapter 3 answers the legal question of property rights of the former owners …” „… rights of former owners and the treatment of property rights of employees? Can the right of all citizens …”

Background S. 196-197

„… basis. Although Kosovo lacks this legal requirement for restitution, many former owners have filed …” „… issue by creating an independent mechanism, and formulating policy and legal framework on this matter.32 …” „… contradict each other and do not create legal uniformity. But since the KTA Regulation does not recognize any …”

Establishment of Socialist Ownership and Agrarian Reforms S. 140-144

„… Social Property in Kosovo The legal position of Kosovo under the former Yugoslavia was equal to other …” „… property that was characteristic only for the former Yugoslav self-management system as well as the …” „… question what method should be used to transform this property into private property. Initially, many legal …”

The Difficulties of Resolving the Issue of Restitution of Former Owners S. 198-200

„… is no legal basis to address the restitution of property of the former owners. 7.4.3 The Negative …” „… “occupancy right” – created over the flats which derived from the former Yugoslav concept of such property …” „… Effect of the Lack of Legal Framework The lack of a legal basis for regulating the issue of restitution …”

Background S. 139-140

„… as part of the former Yugoslav Federation is one of the newest states in the world that declared its …” „… ) were established and the highest legal act on which they were to operate, was the Constitutional …” „… Constitution; the other legal framework became more complete. Following the placement of Kosovo under UNMIK in …”

Croatia S. 110-113

„… the issue of property restitution to the former owners by enacting the legal basis since the beginning …” „… former owners. The Denationalization Law is one of the first laws passed before the Law on Privatization …” „… to the return of property for the citizens of Slovenia (former Yugoslavia) and those who had lost …”

Legal Challenges Regarding Privatization of SOEs S. 173-176

„… to privatization. These challenges can be qualified to at least two major issues: the legal bases …” „… , and the model of privatization. 6.6.2 Legal Challenges Regarding Privatization of SOEs In the …” „… SOEs, the legal framework under which UNMIK exercised its mandate was a confused matter. Section 6 of …”

Legal Concept S. 154-157

„… private legal persons. This kind of transfer was called lease. 5.5 Legal Concept of Social Ownership under …” „… the Constitution of 1974: Differences and Similarities with State Property 5.5.1 Legal Concept Many …” „… authors even state that “natural and legal status of social property was never clear”.92 The …”

General Conclusions S. 206-224

„… declared as applicable in order to fill the legal gaps. 6. Kosovo as a successor state of the former …” „… very confused, because of different legal bases from 222 the past and current (of former Yugoslavia …” „… owner. As such, it was only to serve as a formal motto of the socialist system in the former Yugoslavia …”

Some Legal Arguments for Identification of Social Property as State Property S. 157-159

„… . 1/90. This constitution was promulgated in contradiction with all legal acts of former Yugoslavia and …” „… used to imply that the property belongs to the people. 5.5.2 Some Legal Arguments for Identification …” „… of Social Property as State Property Some legal arguments speak in favour of identification of social …”

FYR Macedonia S. 113-116

„… issue of property restitution to the former owners by enacting the legal basis since the beginning of …” „… former owners. Article 3 of the law mentions the legal acts of the former Yugoslav federation, and the …” „… . Croatia supported the form of property restitution in kind, while in case this was impossible the law …”

The Negative Effect of the Lack of Legal Framework S. 198

„… is no legal basis to address the restitution of property of the former owners. 7.4.3 The Negative …” „… “occupancy right” – created over the flats which derived from the former Yugoslav concept of such property …” „… Effect of the Lack of Legal Framework The lack of a legal basis for regulating the issue of restitution …”

The Status of Social Property in Kosovo from 1989 to 1999 S. 159-160

„… constitution was promulgated in contradiction with all legal acts of former Yugoslavia and in contradiction …” „… did not recognize state ownership. However, this was more a legal formulation and interpretation. In …” „… conflicts began which led to the wars in former Yugoslavia, and finally made the country fall apart. In this …”

The Need to Resolve the Restitution of Property of the Former Owners S. 203-204

„… prescription in two forms: a) after 10 years when the legal possessor has the possession registered in public …” „… represents another legal basis on how to obtain an ownership right by expiration, or when a deadline of using …” „… . According to this legal basis, a person who is holding the right to use of an immovable property in trust …”

Overview S. 119-121

„… on the fact that the General Assembly of UN has no legal authority on law enforcement, and can only …” „… Protection of Civil and Political Rights (hereinafter ICCPR).4 Article 26 of this pact regulates the legal …” „… equality of all citizens.5 Through this Convention all signatory countries are obliged to ensure legal …”

Forms of Social Ownership in Immovable Property S. 152-154

„… activities in the forms of associated labour.75 The right to use a legal title over agricultural land in the …” „… and legal status of social property was never clear”.92 The constitutional formulations in which other …” „… right is carried over by the original title holder.73 5.4.3 Forms of Social Ownership in Immovable …”

The Concept of Social Ownership According to the 1974 Kosovo’s Constitution until 1989 S. 149-151

„… have such a right. 5.4.2 Forms of Ownership According to Constitutional and Legal Regulation after 1974 …” „… constitutional unit and part of the former Yugoslav Federation with equal rights as the rest of the Federal Units …” „… . This constitution was approved on 27 February 1974.57 In regard to the legal-ownership relations, the …”

Opportunities of Resolving the Restitution Problem S. 204-206

„… missing. There is still no legal basis to address the former owners’ claims in the SOEs subject to …” „… States,60 the Member States must take a number of legal acts related to the functioning of free markets …” „… denationalization or private property that was expropriated, confiscated and nationalized or by other forms were …”

Bibliography S. 225-235

„… . Grahovac, Borislav, Privatization in former socialist status: Legal and financial aspects of the ownership …” „… & Bohlander, M., Settlements of property claims in former East Germany, Georgica Review, Vol. 86, No. 2, 1996 …” „… , 1999, 18-23. Bloomstein, Lauren, Privatization in former East Germany, available at:

Resolving Property Disputes Regarding the SOEs Transformed during the Milosevic Regime 1989-1999 S. 192-195

„… This is the legal formula that satisfies the creditor’s claims who benefited from transformations …” „… decisions without real weight, under a complex legal framework in Kosovo and in non-transparent procedures.8 …” „… “the lack of transparency regarding the Chamber procedure and decisions, poor quality of legal …”

Resolving Disputes Regarding Employees’ Rights during Privatization of Property S. 195-196

„… of the former Yugoslavia such as Slovenia, Croatia, FYR Macedonia, and Serbia. It is specific to the …” „… legal troubles. In this regard, it satisfies the requremtens set out in the Europian Convention of Human …” „… the privatization and the labour law contradict each other and do not create legal uniformity. But …”

Documents to Verify the Ownership Title S. 200-203

„… prescription in two forms: a) after 10 years when the legal possessor has the possession registered in public …” „… in the past, what legal and illegal ownership it underwent, who were the precise users and owners …” „… documents for proving the ownership title of the former owner’s property are the most difficult part of the …”

Political and Economic Stability S. 42-44

„… 42 7. solving property rights of former owners whose property was confiscated by the communist …” „… regime; 8. building of institutions of modern market economies and of diverse forms of ownership with the …” „… institutional reforms.85 This means that privatization requires the appropriate policy and legal framework to …”

The Czech Republic S. 99-102

„… parallel with the privatization process had also begun to address the rights of former owners. Because …” „… partially. This process was implemented by issuing privatization coupons to enable former owners to buy …” „… /property.pdf>. 100 3.2.3.1 Legal Basis for Restitution Three major laws governed the issue of restitution …”

Overview S. 96-97

„… second addresses the legal issue of political persecution.29 3.2.2.2 The Forms of Restitution Restitution …” „… ), estimated that 10% of social property has to be returned to the former owners.22 The states’ approach to …” „… restitution has been different and some of them were willing to treat the right of former owners in parallel …”

Economic Environment: Ruined Economy and Low Living Standards During the Privatization Process S. 168-170

„… low living standards. The economy was part of the former Yugoslavia based on social ownership. After …” „… 34 Shala, Ahmet, Minister of Economy of Finance, and former Executive Director of KTA, interviewed …” „… legal officer who preferred to remain anonymous, conducted on 26 November 2010, who worked with the KTA …”

Sale of Assets to Investors S. 180-184

„… regulated in a centralized way. 6.7.3 Privatization of SOEs The KTA Regulation created the legal basis only …” „… programme, the Agency issued other necessary legal instruments such as Operational Policies, Administrative …” „… fair and competitive.114 In principle, every person (domestic or international, natural or legal) was …”

The Question of the Privatization Model: The Critical Assessment of the Privatization Proposals S. 176-177

„… Privatization Model: The Critical Assessment of the Privatization Proposals Legal challenges on privatization …” „… model to adopt. In Kosovo, like in the rest of the former Yugoslavia under self-management socialism …” „… , or to give priority to former ownership claims (implementing the restitution method first and than …”

The Influence of International Instruments for the Protection of Private Ownership in the Process of Transformation of Property: Its Effects in Cases of Restitution S. 116-119

„… signatory countries are obliged to ensure legal equality for all their citizens and to eliminate any form of …” „… amending in 2000, FYR Macedonia began to address the rights of former owners, where restitution in kind was …” „… privatized property, where the former owners are entitled to receive shares in the company. Other forms of …”

Slovenia S. 108-110

„… 108 3.3 Restitution and Treatment of Property Rights of Former Owners in Post-Comunist Countries …” „… with Reference to Social Property: Specific Focus in Former Yugoslav Republics – Slovenia, Croatia …” „… participation of not only the former owners, but all citizens were eligible to receive the vouchers to be used …”

Croatia S. 82-86

„… with the economic reforms under the former Yugoslavia as envisaged by the Markovic Law of 1989 and the …” „… independence from the former Yugoslavia, Croatia launched its own privatization process by passing the Law on …” „… privatization process. Apart from the Law on Transformation of SOEs, as the most important other legal basis …”

Hungary S. 97-99

„… second addresses the legal issue of political persecution.29 3.2.2.2 The Forms of Restitution Restitution …” „… time, it was determined also to resolve ownership claims of former owners. The paths and methods of …” „… dealing with and resolving the restitution issue were provided by law, in that form so as to continue with …”

Poland S. 105-108

„… restitution over privatization and has begun settling the property rights of former owners. But only one year …” „… . Taking this position was important to proceed with privatization for social purposes, while former owners …” „… economy in the territory of the former GDR. 3.2.5 Poland The transition programmes in Poland began in the …”

Establishment of a Free Market, Creation of Competition and Ensuring the Transparency of the Privatization Process S. 46-48

„… cannot function without an adequate legal framework.107 “As a new institutional economic perspective …” „… communautaire sometimes is called the EU acquis which is the accumulated legislation, legal acts, court …” „… elite (former Czechoslovakia and Poland) due to circumstances that began spontaneous privatization …”

Privatization of Socially Owned Property in Kosovo S. 160-161

„… recognize state ownership. However, this was more a legal formulation and interpretation. In reality, state …” „… between 1945 and 1950 and created through different forms such as confiscation, nationalization, agrarian …” „… officially became the dominant form of ownership (except in agriculture), and at the same time it did not …”

The Concept of Privatization S. 38-41

„… , Sachs, Summers, 1990, p. 294. 64 Savas, 1992, p. 573. 40 omy of the former-communist countries in …” „… Privatization Privatization is the opposite to nationalization;49 which means the legal process organized by the …” „… of the economy, whilst in the former or the West it is carried out within the same economic system …”

Aims and Objectives of Privatization in Post-Communist Transformation S. 41-42

„… should create a free market and strengthen private property.76 From a legal point of view, the aim of …” „… & Netter, 2001, p. 331. 80 See Arakelyan, 2005, p. 42. 42 7. solving property rights of former owners …” „… economies and of diverse forms of ownership with the aim of improving the democracy and efficiency of …”

Acknowledgements S. 9-10

„… Hans-Joachim Schramm from Bremen University and former legal advisor in the Treuhand for his interview and his …” „… 9Acknowledgements There are a number of people whom I would like to thank in various ways and forms …” „… final form it has taken. Many thanks go to Professor Ulrich Drobnig from the Max Planck Institute in …”

The Establishment of the Special Chamber S. 191-192

„… Restitution 7.1 Overview The legal basis in Kosovo provides a possibility of privatizing SOEs as a primary …” „… ’ claims, or any ownership claim. The legal basis provides the possibility for every person that may loose …” „… claims, because it had taken decisions without real weight, under a complex legal framework in Kosovo and …”

The Question of Administration of SOEs S. 170-171

„… manage the SOEs; b) the legal status of social property; and c) the privatization of SOEs. Over 590 …” „… socialist economy collapsed in the former Yugoslavia. For Kosovo there was not any reason to continue with …” „… beginning of the process: a) to continue with SOEs activities based on past legal and economic concept which …”

FYR Macedonia S. 86-90

„… Macedonia as one of the successor states of the former Yugoslavia declared its independence on 8 September …” „… 1991. It was necessary to carry out economic and legal reforms for a radical change of the “socialist …” „… bargaining economy” inherited from the former Yugoslavia.185 The economy was a constitutive element of a …”

Background S. 74-76

„… privatization – is a form of liquidation of companies and the sale of assets to natural persons and legal …” „… July 1990 when it established the first legal basis for privatization and established the Ministry of …” „… form of transformation of enterprises into corporations and then selling the shares of enterprises. The …”

The Impact of Unresolved Political Status in the Privatization Process: The Lack of Debate on Privatization S. 166-168

„… uncovered. As a result, different legal bases are applied that placed Kosovo in confused jurisdiction and …” „… Kosovo was more complicated than elsewhere as a consequence of an unclear concept and the unclear legal …” „… former Yugoslavia based on social ownership. After the occupation of Kosovo by Serbia in 1989, the …”

Sale of Assets to Outsiders – Domestic and/or Foreign Investors S. 69-70

„… former state property was transferred into private property.85 However, despite the advantage of the …” „… . 86 Kotrba, Ko?enda & Hanousek, 1999, p. 8. 87 White, 2000, p. 6. 70 2.5 Former East Germany 2.5.1 …” „… Background The process of privatization in the former East Germany (German Democratic Republic – GDR) is …”

Background S. 70-71

„… 70 2.5 Former East Germany 2.5.1 Background The process of privatization in the former East …” „… regarding the restitution of property to former owners whose properties were confiscated during the …” „… responsibilities of the agency on managing and the privatization of property. The Treuhand gained the legal status …”

Ownership Transformations and Etablishment of Self-Management System in Enterprises S. 148-149

„… 148 higher form of agricultural cooperatives was organized. A part of land (cultivable land not …” „… exceeding the maximum determined by law) was returned to former ownerscollectives, but the remaining part …” „… former Yugoslav Federation with equal rights as the rest of the Federal Units. This constitution was …”

Transformation of Social Immovable Property: The Right to Use the Land for 99 Years S. 185-186

„… Comparing to the former Yugoslav Republics the amount of 20% of shares converted only into compensation from …” „… held by a natural person or through merger or other succession when leasehold is held by a legal person …” „… . That makes the Kosovo model of transformation of social immovable property different from other former …”

Legal Acts S. 238-243

„… 238 Legal Acts International legal acts UN, Universal Declaration of Human Rights, G. A. Res. 217 …” „… on Measurement and Land Kadastre, OG of SFRY, No. 12/80. Law on Basic Legal-Ownership Relations, OG …” „… for transformation of Socially Owned Property into Other Forms of Property, OG of the Republic of …”

Why Different Methods of Privatization are Used? S. 57-59

„… is a high political and legal process that essentially requires a broad consensus at all levels, in …” „… certain groups to participate in the privatized property, such as the workers and the managers, the former …” „… obstacles, applied the sale of property to strategic investors (the case of Hungary and Poland). Former …”

Relations between Privatization and Restitution (Denationalization) S. 93-96

„… Property Rights of Former Owners: The Experience of Several Post-Communist Countries 3.1 Relations between …” „… rights of former owners are different, and there is not a unique approach. This diversity is dependent on …” „… a number of political, economic and legal factors.2 Principles of restitution have been somewhat …”

Duty to Restitute S. 128-129

„… the return of property or determining the legal conditions for return of property to former owners …” „… Former owners have tried to claim the right to restitution within P1-1, arguing that the signatory states …” „… case of revealing laws states have an obligation to eliminate arbitrary forms of property transfer and …”

Establishment of Cooperatives and Cooperative Relations S. 145-147

„… villagers (general type), was the largest by number. In the former Yugoslavia, in 1949 there were 9,060 …” „… private owners. Joint owners of their property for the first two types received a payment in the form of a …” „… lease, and for the third type as special rent. The fourth type was the higher form of these cooperatives …”

Former East Germany S. 102-105

„… Czech Republic has addressed the restitution issue by treating former owners’ right before or at the …” „… use the property more efficiently than the former owners. 3.2.4 Former East Germany In East Germany …” „… former owners was one of the priorities of the process, which was stipulated by the governments of both …”

Sale of Assets to Outsiders – Domestic or Foreign Investors S. 71-73

„… - 105 Hans-Joachim Schramm, Professsor at the University of Bremen, former Legal Adviser in Treuhand …” „… returning of property of enterprises to their former owners. Privatization may not include restitution but …” „… the GDR was transferred to the Treuhand. The Treuhand was considered a legal owner with the status of …”

Privatization Process under the Privatization Agency of Kosovo S. 187-189

„… restitution (denationalization) which will create equal treatment for all former owners. This property is not …” „… not recognize the PAK as the legal sucessor of the KTA. In other words, they do not recognize the Law …” „… deal with is the liquidation process, a part of the legal challenges of privatization. It needs to …”

The Conflicts Between Rapid and Gradual Reforms S. 51-53

„… enterprises which were privatized. For political, legal, ethical and social reasons, workers and managers have …” „… involved former employees and managers in the privatization process giving them the right of distribution …” „… manage the economy well and achieve legal agreements between social and economic interests groups. Mass …”

Slovenia S. 78-82

„… the former Yugoslavia and the establishment of the new successor states. The research in this part …” „… their independence. After their independence, the former Yugoslav Republics followed some similar …” „… the same concept of social property from the former Yugoslavia. 2.7.2 Slovenia 2.7.2.1 Background The …”

Ratione Temporis S. 121-124

„… associated with the period of political changes that characterized the legal responsibilities to deal with …” „… injustices of the former regime. Lessons from the practice of the ECtHR can help in resolving the problem if …” „… to approve the restitution laws and the return of property to former owners? 4.2 The Practice of the …”

Ratione Materiae S. 124-127

„… rejected the request for review on merit and declared the application inadmissible.27 Former owners …” „… restitution of former owners for expropriations which occurred during a period when the convention had not …” „… restitution cases in accordance with legal conditions that provides domestic legislation for restitution, and …”

General Overview S. 77-78

„… more appropriate form in order to speed up the privatization process. In cases of liquidation and …” „… Three Former Yugoslav Republics: Slovenia, Croatia, and FYR Macedonia 2.7.1 General Overview The Former …” „… the former Yugoslavia and the establishment of the new successor states. The research in this part …”

Transformation of Property through Restitution as a Solution for the Protection of Property Rights of Former Owners: The Experience of Several Post-Communist Countries S. 90-93

„… . Contrarily, in the Czech Republic and Former East Germany the economy was more centralized which required a …” „… voucher system was the predominant form of privatization which consisted in the distribution of shares or …” „… , the Former East German model of transformation represents a special case. It has given priority to the …”

Sale of Asset to Outsiders – Domestic or Foreign Investors S. 65-66

„… preferential interest rate (up to 20% of market rates) and tax concessions in the form of tax exemption up to a …” „… intended only to include certain groups of people, such as workers of enterprises, the former owners …” „… prosecuted by the communist regime or those who were harmed by the regime or injured in other forms as well …”

Economic Reforms, Reorganization of Enterprises and Self- Management System in Enterprises S. 147-148

„… property. Several very important legal acts were promulgated such as: the basic law for governing the …” „… the former Yugoslavia and building of the self-management system. This also affected ownership …” „… state property.49 The form of administrative governance of enterprises managed by state administration …”

Equal Treatment S. 127-128

„… the return of property or determining the legal conditions for return of property to former owners …” „… incompatible ratione materiae.46 4.2.3 Equal Treatment Former owners have attempted to invoke Article 14 of …” „… the Czech Republic had decided to enable the rehabilitated persons to recover their former possessions …”

Socially Owned Apartments and Construction Land S. 186-187

„… makes the Kosovo model of transformation of social immovable property different from other former …” „… of unclear title ownership of such property. In the former Yugoslavia, the SOEs were not the owner of …” „… be enacted in order to open the way to the legal users of these properties to be converted into the …”

Background S. 66-67

„… the institutions of a centralized economy, thus creating conditions for a free market, adopted legal …” „… stages: restitution, small privatization and large privatization. Restitution – represented a form of …” „… privatization that was envisaged to return the property of former owners whose property was confiscated during …”

Insider Privatization – MEBO: Employee Ownership in the Process of Transformation of Property S. 73-74

„… companies of West Germany. This form of privatization resembles spontaneous privatization. In case of …” „… conflicts related to claims of former owners over property in the privatization, courts were responsible for …” „… deciding which cases in the privatization could be halted to allow the return of property to former owners …”

The Concept of Insider Privatization – MEBO: Employee Ownership in the Process of Transformation of Property S. 59-61

„… investors (the case of Hungary and Poland). Former Yugoslav countries (Slovenia, and Croatia) applied mass …” „… enterprises to the citizens. Former owners were involved in the privatization process through the vouchers for …” „… which arguments dominated when choosing one or other form of privatization. Finding the most appropriate …”

Abbreviations S. 19-20

„… Journal of the European Union OLA UNMIK’s Office of Legal Affairs OSCE Organization for Security and …” „… Enterprises SOE State-Owned Enterprises (in case of Former Yugoslav concept it means Socially Owned …”

Dilemmas About Restitution S. 49-51

„… were focused on finding an even better form for the creation of the private sector. Consequently, at …” „… difficulties and dilemmas were focused on three major problems: 1) restitution of property to former owners in …” „… ownership of the former owners for property confiscated and expropriated by the communist regime and the …”

Conclusions S. 135-138

„… compensation for former owners such as in the Hungarian model have the same approach. The Strasbourg Bodies …” „… reviewed the cases only on the basis of legal requirements provided by restitution laws. The question that …” „… returning the property only to former owners who were the citizens of a respective country, or when it was …”

Nationalization of Forests and Pastures as well as Ownership Limitation in Lands S. 144-145

„… who acquired foreign citizenship as they lost the citizenship of former Yugoslavia, because at that …” „… compensations. Legal acts that contributed to establishing the fund of state properties (the people’s properties …” „… organizations of villagers (general type), was the largest by number. In the former Yugoslavia, in 1949 there …”

Nationalization of Private Commercial Enterprises S. 144

„… who acquired foreign citizenship as they lost the citizenship of former Yugoslavia, because at that …” „… compensations. Legal acts that contributed to establishing the fund of state properties (the people’s properties …”

Insider Privatization: Employee Ownership in the Privatization Process S. 184-185

„… . Kosovo did not accept the insider model of privatization as in other former Yugoslav Republics such as …” „… by giving the employees 15%-20% of the proceeds.131 Comparing to the former Yugoslav Republics the …” „… merger or other succession when leasehold is held by a legal person, b) by contract; and c) by law. The …”

The Dilemma of the Employee Ownership in Privatization S. 51

„… enterprises which were privatized. For political, legal, ethical and social reasons, workers and managers have …” „… involved former employees and managers in the privatization process giving them the right of distribution …”

„… compensation for former owners such as in the Hungarian model have the same approach. The Strasbourg Bodies …” „… reviewed the cases only on the basis of legal requirements provided by restitution laws. The question that …”

Lack of a Unique Method of Transformation of Property S. 55-57

„… ) restitution of property of the former owners.3 It should be pointed out that a single method was not used for …” „… foreign investors.5 In some former Yugoslav Republics (Slovenia, Croatia and FYR Macedonia) enterprises …” „… been less successful and reflected as a discouraged method of privatization.8 Former Yugoslav States …”

The Differences on the Basis of Various Implementations of the Rules of the Relevant Conventions to Equal Protection before the Law to all Persons S. 133-135

„… former owners are treated equally before the law. The fact, that the state has implemented only a form of …” „… post-communist states was not considered as equal treatment for all former owners. Consequently, the HRC …” „… Bodies and of the UN HRCR in regard to the partial compensation for former owners such as in the …”

Background S. 62-64

„… post-communist states (after former Yugoslavia), which since 1968 has started reforms in the economy by creating …” „… and the creation of joint ventures with foreign and state capital.43 This form of privatization …” „… the sales transactions, but if the firm violated its legal rules, SPAH applied sanctions or removed …”

The Impact of UN Acts and the Practice of the UN Human Rights Committee Related to the Restitution Issue S. 129-133

„… Member States. In case of revealing laws states have an obligation to eliminate arbitrary forms of …” „… property transfer and issue legal acts “adequately accessible and sufficiently precise”.58 In the case of …” „… a state, it is necessary to prohibit any form of discrimination and it should be provided that all …”

Background S. 172-173

„… : the legal bases, and the model of privatization. 6.6.2 Legal Challenges Regarding Privatization of …” „… . Furthermore, to deal with privatization of SOEs, the legal framework under which UNMIK exercised its mandate …” „… privatization of SOEs was not provided as a reserved power of UNMIK.69 Under the legal framework only the words …”

Resolving Ownership Disputes During Privatization: The Lack of Treatment of Restitution S. 189-191

„… deal with is the liquidation process, a part of the legal challenges of privatization. It needs to …” „… handle the most controversial issue – resolving the creditors’ claims, legal validity of transformation …” „… During Privatization: The Lack of Treatment of Restitution 7.1 Overview The legal basis in Kosovo …”

Overview S. 191

„… Restitution 7.1 Overview The legal basis in Kosovo provides a possibility of privatizing SOEs as a primary …” „… ’ claims, or any ownership claim. The legal basis provides the possibility for every person that may loose …” „… related matters in Kosovo. This court is formally attached to the …”

Commercialization of SOEs S. 171-172

„… not implemented for political reasons and disagreements between UNMIK and the UN Legal Office in New …” „… , p. 60. 58 Interview with the international officer, formerly with the KTA, now with the PAK, ibid …”

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