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Marc Bungenberg, Jörn Griebel, Stephan Hobe, August Reinisch - International Investment Law

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Marc Bungenberg (ed.), Jörn Griebel (ed.), Stephan Hobe (ed.), August Reinisch (ed.)

International Investment Law

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2015

Results in this title

James Crawford, Simon Olleson III. The Application of the Rules of State Responsibility S. 411-441

„… III. The Application of the Rules of State Responsibility James Crawford and Simon Olleson A …” „… ; NAFTA Chapter 11; CAFTA Chapter 10. III. The Application of the Rules of State Responsibility James …” „… Committee: GA Res 62/61 (above, n. 14). III. The Application of the Rules of State Responsibility James …”

Jean-Christophe Honlet, Barton Legum, Anna Crevon A. ICSID Annulment S. 1431-1459

„… Secretary-General of ICSID. Pursuant to Rule 50(1)(c) of the ICSID Arbitration Rules, the application must be made …” „… (‘Disregard of the applicable rules of law must be distinguished from erroneous application of those rules …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 (4) There has been a Serious Departure from a Fundamental Rule of Procedure …”

Noah Rubins, Ben Love I. Ratione Temporis S. 481-494

„… application of the non-retroactivity rule to prior acts and ‘any situation which ceased to exist before the …” „… Convention provides the following rules on the provisional application of a treaty: 1. A treaty or a part of …” „… protection for acts occurring before the treaty’s entry into force, but the application of rules governing …”

Morris Besch II. Typical Questions Arising within Negotiations S. 93-152

„… are found which provide for the exclusive application of non-national rules. The protection intended …” „… exclusive choice of non-national rules while legally admissible, cannot completely exclude the application …” „… (see above) – not be breached. Moreover, the application of uniformly applied rules of business people …”

André von Walter I. Investor-State Contracts in the Context of International Investment Law S. 80-92

„… the law with which the contract is the most closely connected.7 This application of classic rules of …” „… , the application of classic rules of public international law to investor-State contracts does not …” „… treatment, and many IIAs explicitly call for the application of rules and principles of international law …”

Lucy F. Reed, Jonathan E. Davis A. Who is a Protected Investor? S. 614-637

„… Nationals of Other States’ (1972) 136 RC 331–410, 360–361. Chapter 6: The Scope of Application of …” „… Application for Annulment of Mr Soufraki, 5 June 2007, para. 68 (Freshfields Bruckhaus Deringer LLP …” „… application of such clauses to juridical persons.16 States cannot consent to ICSID jurisdiction that is …”

Jorge E. Viñuales VII. Investment Law and Sustainable Development: The Environment breaks into Investment Disputes S. 1714-1738

„… ‘extraneous’ considerations. Yet, investment schemes are subject to a wide array of legal rules at different …” „… particularities. Nothing prevents an investment tribunal – acting under virtually any set of arbitration rules …” „… to assert.22 First, primary rules of obligation with customary grounding are scarce (albeit growing …”

Arno Gildemeister V. Investment Law and Taxation S. 1677-1691

„… a generic reference to domestic laws and regulations, i.e. rules of general application.28 Does ‘tax …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Jurisdiction of International Arbitral Tribunals to Rule on Matters of Taxation …” „… . Jurisdiction of International Arbitral Tribunals to Rule on Matters of Taxation Jurisdictional hurdles stemming …”

Marc Jacob, Stephan W. Schill I. Fair and Equitable Treatment: Content, Practice, Method S. 700-763

„… Equitable Treatment as an Emanation of the Rule of Law …” „… Implications of the Rule of Law Approach . . . . . . . . 126 a) Comparative Analysis of Domestic Legal Systems …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 D. A Normative Justification of the Rule of Law Approach . . . . . . . . . . . . . . . . 141 1 …”

Monique Sasson III. Investment Arbitration: Procedure S. 1288-1372

„… . Determination of Rules of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 3. The …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 7. Rules on the Taking of Evidence …” „… San Diego L. Rev. 629–704; Antonio Parra, ‘The Development of the Regulations and Rules of the …”

August Reinisch II. The Interpretation of International Investment Agreements S. 372-410

„… , ‘Determination, Interpretation and Application of Substantive Law in Foreign Investment Treaty Arbitrations …” „… Protection Rules’ in Ole Fauchald and André Nollkaemper (eds), The Practice of International and National …” „… points to commercial arbitration paradigms where different rules of interpretation are applied. Although …”

Bruno Simma, Dirk Pulkowski I. Two Worlds, but Not Apart: International Investment Law and General International Law S. 361-371

„… Justice had endorsed a presumption in favour of the application of the local remedies rule: The Chamber …” „… remedy’. States that wish to preserve the application of the local remedies rules would thus be expected …” „… responsibility is the application of rules regarding circumstances precluding wrongfulness under customary …”

Christina Binder IV. Circumstances Precluding Wrongfulness S. 442-480

„… , ‘Investment Protection in Extraordinary Times: the Interpretation and Application of Non-precluded Measures …” „… Additional Facility Rules (NAFTA) where Mexico argued that the wrongfulness of its measures which prejudiced …” „… application of general international law in the subsystem of investment law. Accordingly, in the following …”

Michael Waibel II. Investment Arbitration: Jurisdiction and Admissibility S. 1212-1287

„… the Corfu Channel case, the International Court of Justice (ICJ) laid down the foundational rule that …” „… admissible’); Application of The Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia …” „… Admissibility of the Application, 3 February 2006, ICJ Rep. 2006, 6, paras. 65–68; Fisheries Jurisdiction (Spain …”

Ole Spiermann IV. Investment Arbitration: Applicable Law S. 1373-1390

„… , such as Article 42(1) of the ICSID Convention and Article 21(1) of the 2012 ICC Rules of Arbitration …” „… . The open-ended wording of Article 21(1) of the ICC Rules, referring to ‘the rules of law which it …” „… of the Contracting State party to the dispute (including its rules on the conflict of laws) and such …”

Henning Grosse Ruse-Khan VI. Investment Law and Intellectual Property Rights S. 1692-1713

„… however already follows – in most instances – from the application of the national treatment rule in TRIPS …” „… author of the work, while patents are granted for 20 years from the filing of the patent application …” „… treaties (C.). Then the application of the investment standards concerning expropriation to IPRs are …”

Index S. 1913-1952

„… Methanex Chapter 5 II 44 methodology Chapter 8 I 30 – for application of FET Chapter 8 I 27 – rule of …” „… determination Chapter 3 II 190 – ICSID Conciliation Rules Chapter 11 I 35 – key characteristics of a modern …” „… Chapter 11 VI A 25 – application for a stay of proceedings Chapter 11 VI A 82 Index 1914 – contradictory …”

Pierre-Marie Dupuy, Jorge E. Viñuales VIII. Human Rights and Investment Disciplines: Integration in Progress S. 1739-1767

„… application of the rule of law (equity infra legem), as set out in the categorisation drawn by the ICJ in the …” „… unlawful use of force. The application of the relevant rules of international law relating to this question …” „… December 2011, Application No. 45875/06, Rafig Aliyev v. Azerbaijan. 5 Declaration of the Rights of Man and …”

Joachim Karl F. The Negotiations on the OECD Multilateral Agreement on Investment S. 342-360

„… the agreement were a preamble, rules on scope and application, treatment of investors and investment …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 j) Extraterritorial Application of Investment-Related Laws . . . . . . . . 39 5. The Crash …” „… ; to develop rules for the treatment of public debt; to address research and development (R&D), or to …”

Giorgio Sacerdoti, Matilde Recanati XIII. Approaches to Investment Protection outside of Specific International Investment Agreements and Investor-State Settlement S. 1839-1862

„… judgment or rather an application of one of the exceptions to the general rule established by the court in …” „… domestic law and jurisdiction. They questioned the existence and content of customary rules on the subject …” „… uncertain customary rules with agreed standards of protection backed by the possibility to invoke them …”

Borzu Sabahi, Kabir Duggal, Nicholas Birch VI. Limits on Compensation for Internationally Wrongful Acts S. 1115-1129

„… of proof may be shifted to the other Party, if the circumstances so justify.’). Further, the rules …” „… rules of international law which are applicable in this dispute (...)’). 26 AIG Capital Partners, Inc …” „… arbitration have not clarified this question.45 In addition to the customary rules governing the state of …”

Stefan Kroll VII. Enforcement of Awards S. 1482-1504

„… ) Scope of Application …” „… . 10, 34; see also Art. 34(6) of the ICC Arbitration Rules; Art. 34(2) of the UNCITRAL Arbitration …” „… Rules. 19 Christoph Schreuer (n. 14) Art. 53, para. 13 speaks of a ‘not entirely symmetrical’ legal …”

Jan K. Schäfer I. Alternatives to Investment Arbitration S. 1186-1211

„… Mediation Rules. The first article of the IBA Mediation Rules deals with their scope of application. The …” „… . Article 1 – Scope of Application Article 1(1)75 specifies that the rules are designed for the mediation of …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 2. Overview of Topics of IBA Mediation Rules. . . . . . . . . . . . . . . . . . . . . . . . . 68 3 …”

Anthony Sinclair VII. Umbrella Clause S. 887-958

„… fundamental question of the effect of the ‘so-called umbrella clause’, and the clause’s scope of application …” „… v. Myanmar held that a provision of this kind merely preserves the sphere of legal application for …” „… its own law with regard to specific investments – in effect, to help secure the rule of law in …”

Ralph Alexander Lorz, Manuel Busch E. Investment in Accordance with the Law – Specifically Corruption S. 577-589

„… Responsibility’, ch. 2.II., 23–45; and of James Crawford and Simon Olleson, ‘The Application of the Rules on …” „… has therefore been described as part of an ‘ordre public international’3 and as a ‘quintessential rule …” „… . 2). Chapter 6: The Scope of Application of International Investment Agreements 578 Ralph Alexander …”

Michael Hahn II. EU Rules and Obligations Related to Investment S. 671-684

„… preceding subparagraph shall not prejudice the application to third countries of domestic rules or Community …” „… international investment law, i.e. the body of several thousand BITs2 and their application in what sometimes …” „… seems to be a haphazard patchwork of arbitration decisions. These BITs and their application by courts …”

Richard Happ A. The Energy Charter Treaty S. 240-260

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 c) A Unique Scope of Application …” „… makes little sense.20 A Unique Scope of Application There are five factors which determine the scope of …” „… application of the ECT. The first factor is the limited sectoral scope of application. While most biand …”

Lars Markert, Helene Bubrowski B. National Setting Aside Proceedings in Investment Arbitration S. 1460-1481

„… proceedings.8 Such national rules in the majority of cases provide that court control does not amount to an …” „… other arbitral rules necessarily have a seat of arbitration. 8 The scope of this contribution does not …” „… full de novo review of the scope of application of the IIA or of procedural provisions. This means …”

Stephan W. Schill XII. Multilateralization: An Ordering Paradigm for International Investment Law S. 1817-1838

„… rules and generate an increasing amount of inconsistent and incoherent arbitral decisions? Or are there …” „… latter stresses the existence of common structures, rules, and principles that penetrate investment …” „… major differences between them relate to the number of participants and the nature of rules they …”

Stephan Wittich V. Investment Arbitration: Remedies S. 1391-1430

„… of remedies in investment arbitration will as a rule arise in the context of a prior breach, that …” „… primacy over any rule of general international law, but which neither suggest that the remedies in general …” „… which, as a rule, is made good by the payment of compensation or damages, respectively. These two …”

Jan Asmus Bischoff, Richard Happ A. The Notion of Investment S. 495-544

„… on Trade and Develop- Chapter 6: The Scope of Application of International Investment Agreements 496 …” „… commercial transaction’, see Article 4(3) of the Additional Facility Rules. 3 See MIGA Convention Article 12 …” „… Application of International Investment Agreements 498 Jan Asmus Bischoff/Richard Happ 3 Sources of …”

Chester Brown I. The Evolution of the Regime of International Investment Agreements: History, Economics and Politics S. 153-185

„… treaties or of other rules of international law.’97 General Principles and Scope of Application Section A …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 b) Scope of Application …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 b) General Principles and Scope of Application . . . . . . . . . . . . . . . . . . . . . 35 c …”

Marc Bungenberg, Stephan Hobe II. The Relationship of International Investment Law and European Union Law S. 1602-1628

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 3. Scope of Application of the CCP in Investment Matters . . . . . . . . . . . . 24 a) Coverage of …” „… economic agreements’ that also contain rules on investment promotion and protection, an extension of the …” „… the scope of application in these cases see ECJ, 12.12.2006, Case C-524/04, Test Claimants v …”

Joachim Steffens II. Excursus: German Political Risk Insurance S. 1552-1568

„… (on application isolated acts of terrorism as well); – payment embargoes or moratoriums …” „… cases 20 years (a prolongation is possible), – as a rule indemnifications are paid after deduction of an …” „… uninsured percentage of 5 %. 11 The application form and additional information are available at …”

August Reinisch IV. Most Favoured Nation Treatment S. 807-845

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 E. The Application of MFN Clauses in Investment Practice . . . . . . . . . . . . . . . . 46 1. MFN …” „… Application of the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment …” „… cannot be admitted that that principle has as yet developed into a rule of customary international law …”

Catharine Titi IX. International Investment Law and Good Governance S. 1768-1783

„… public officials,6 the rule of law,7 participation of civil society and business groups,8 regulatory …” „… these may be added some soft law instruments of more general application. The analysis that follows will …” „… lengthier provisions. It encompasses rules, inter alia, for publication of proposed regulations of general …”

John P. Gaffney, Zeynep Akçay A. European Bilateral Approaches S. 186-201

„… pre-ambular statements concerning the purpose of the BIT, define the scope of application, enumerate …” „… Framework for Substantive Rights Generally, European BITs have a broad scope of applications. Thus, in …” „… the Additional Facility Rules. Comparisons with Other Approaches European BITs were also a source of …”

Carsten Kern VI. Transfer of Funds S. 870-886

„… brief overview of transfer of funds provisions and foreign exchange regulation under the rules of multi …” „… Framework of Multi- and Supranational Agreements There is no rule in general international law on the free …” „… : Standards of Protection 872 Carsten Kern 5 6 7 8 9 10 11 The rules and principles on the transfer of funds …”

Christian Tietje XI. Investment Law and Sovereign Wealth Funds S. 1802-1816

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 a) Scope of Application …” „… criticising usually consider the home countries of SWFs as being States in which the rule of law is not yet …” „… scope of application of the principles can be criticised.28 OECD Declaration on Sovereign Wealth Funds …”

Andrea K. Bjorklund B. NAFTA’s Contributions to Investor-State Dispute Settlement S. 261-282

„… , 249–298; Daniel M. Price, ‘An Overview of the NAFTA Investment Chapter: Substantive Rules and …” „… expeditious dismissal of meritless claims, another innovation that sparked changes in the ICSID rules as well …” „… confidentiality on the disputing parties to a Chapter Eleven arbitration, and, subject to the application of …”

August Reinisch IV. The Likely Content of Future EU Investment Agreements S. 1884-1903

„… of Application …” „… Application One of the central issues concerning the scope of application is the question to what extent an …” „… Patrick Mitchell v. Congo, ICSID Case No. ARB/99/7, Decision on the Application for Annulment of the Award …”

Stephan Wittich II. State Responsibility S. 23-45

„… application of the rules of State re- 1 Factory at Chorzów (Germany v. Poland), PCIJ Judgment, Merits, (1928 …” „… ‘prominent’ role of damage is again to be found in arbi- 1. 2 See chapter 5.III. on ‘The Application of Rules …” „… the term describing the sum of rules of international law concerning the origin and the consequences …”

Jörn Griebel D. The New EU Investment Policy Approach S. 304-325

„… international rule of law in the field of international economic law.28 Considering also the main disputes when …” „… importance of trade rules could endanger the integrity of investment rules, which might be regarded as a …” „… certainly a basis for an independent negotiation of investment rules, this in itself does not provide a …”

Karl-Heinz Böckstiegel I. The Future of International Investment Law – Substantive Protection and Dispute Settlement S. 1863-1872

„… under specific rules for investment disputes such as of ICSID and the ECT, CAFTA, NAFTA, and under rules …” „… Present State of Development Public international law has always included some substantive rules of …” „… arbitration proceedings against the host State under the rules of ICSID, UNCITRAL or other arbitral …”

Anne K. Hoffmann G. Denial of Benefits S. 598-613

„… [exploration and exploitation of mineral resources] if at any time such application is presented the granting …” „… of all similar applications shall have been suspended or discontinued.’ 2 Treaty of Friendship …” „… application of which in recent investment treaty case law will be addressed more substantially below, is …”

Rainer Hofmann III. The Protection of Individuals under Public International Law S. 46-63

„… Hofmann 27 28 Under traditional law of aliens, one of the most important fields of application was the …” „… customary law rules have been replaced or superseded, to a very large extent, by the vast set of bilateral …” „… under diplomatic protection; what have been before customary rules of law have now been turned into …”

Kaj Hobér, Joshua Fellenbaum I. Political Risk Insurance and Investment Treaty Protection S. 1517-1551

„… , the critical risk for the investor is that the host State might change the rules of the game, e.g. by …” „… the rules of the game. Generally speaking, it is probably fair to say that this kind of political risk …” „… period of time on an application by such holder for such transfer.’). 20 MIGA Convention, Article 11 …”

Marc Bungenberg, Manjiao Chi C. Chinese Investment Law S. 221-239

„… rules or suspended the application of certain regulations and rules in the FTZ. Most of these …” „… regulations and rules concern foreign investment governance in the FTZ, especially the establishment of …” „… law minimum standard, confining the scope of application of the most favoured nation (MFN) treatment …”

Irmgard Marboe III. Valuation in Cases of Expropriation S. 1057-1081

„… purposes than those of valuation. They are the result of the application of rules and entrepreneurial …” „… : ‘This is but an application of the familiar rule of proximate cause – a rule of general application both …” „… does not stipulate any rules relating to damages payable in the case of an unlawful expropriation. The …”

Andreas R. Ziegler X. Investment Law in Conflict with WTO Law? S. 1784-1801

„… Interpretation and Application of Articles VI, XVI and XXIIII of the GATT before the coming into force of the WTO …” „… rules had, even prior to the signature of the Final Act, led to rather meagre outcomes. This was due in …” „… large part to the absence of a clear consensus on the scope and role of such rules.28 While the creation …”

Sabine Konrad B. Protection of Investments Owned by States S. 545-554

„… relevant to the claimant’s claims). Chapter 6: The Scope of Application of International Investment …” „… . BITs do not normally limit their application to ‘private’ investments.17 BIT definitions of investors …” „… , application nos. 13092/87 and 13984/88, Judgment of 9 December 1994, para. 48; Case of Islamic Republic of …”

Ralph Alexander Lorz II. Protection and Security (Including the NAFTA Approach) S. 764-789

„… . Indonesia tribunal formulated as follows: It is a generally accepted rule of international law, clearly …” „… and its interpretation. And as with any other treaty clause, the generally accepted rules of …” „… spend a lot of efforts on citing the VCLT rules and explaining them in detail,22 even though the …”

Marc Bungenberg, Catharine Titi VIII. Precedents in International Investment Law S. 1505-1516

„… of Justice,4 is generally interpreted to indicate the absence of a rule of binding precedent.5 …” „… decision rendered by an earlier tribunal does not constitute ‘a primary source of rules’.7 2 Cf. United …” „… subsidiary means for the determination of the rules of law. See on this Gilbert Guillaume, ‘Can Arbitral …”

Markus Perkams B. Protection for Legal Persons S. 638-652

„… IIA and the applicable national law must prevail. Chapter 6: The Scope of Application of International …” „… generally accepted (albeit implicit) rule is that the nationality of a corporation is determined on the …” „… customary international law. 20 Id., para. 56. Chapter 6: The Scope of Application of International …”

Kaj Hobér II. Does Investment Arbitration have a Future? S. 1873-1878

„… , ICSID will publish excerpts of the legal reasoning in the award. The new ICSID rules also authorise the …” „… purpose of such rules is said to be to ensure transparency with a view to enhancing the legitimacy of and …” „… account of the parties’ interest in a fair and efficient resolution of their dispute. The draft rules …”

Irmgard Marboe IV. Valuation in Cases of Breaches of International Law Unrelated to Expropriation S. 1082-1102

„… with the challenge to apply the rather general rule of ‘full reparation’ under the law of State …” „… investment treaty provides for explicit rules on reparation or valuation, because the applicability of the …” „… secondary rules of State responsibility follows automatically.4 This has already been formulated by the …”

Vivienne Bath, Luke Nottage C. The ASEAN Comprehensive Investment Agreement and ‘ASEAN Plus’ – The Australia–New Zealand Free Trade Area (AANZFTA) and the PRC–ASEAN Investment Agreement S. 283-303

„… Regulatory Sovereignty While Promoting the Rule of Law?’ (2011) 5 TDM 1–12; Carsten Fink and Martín Molinuevo …” „… predictability of investment rules, regulations and procedures (Art. 1(c)), and promotion of the facilitation of …” „… preserve their right to regulate ‘within a rule of law framework in the investment context’. See discussion …”

Patrick Dumberry VII. Moral Damages S. 1130-1141

„… authorities’ constant rejections of his applications. The tribunal acknowledged that these recurring …” „… on the application of this high threshold of ‘exceptional circumstances’. 37 Desert Line v. Yemen (n …” „… concerning the difference between New Zealand and France concerning the interpretation or application of two …”

Andrew Newcombe B. The Americas S. 202-220

„… doctrines in international investment law, including the Hull rule, arose out of economic and political …” „… ’ exception to treaty obligations. The scope, meaning and application of this type of provision have proven to …” „… ), Canada–Peru FTA. 43 The Hull Rule is named after US Secretary of State Hull, who, in response to the …”

Irmgard Marboe V. Valuation in Cases of Breach of Contract S. 1103-1114

„… damages after breaches of international law under the rules of State responsibility.7 It is, however, also …” „… the further operation of the railway impossible. 16 Robert Jennings, ‘Rules Governing Contracts …” „… follows that the application of the concepts of damnum emergens and lucrum cessans on long-term investment …”

Titelei/Inhaltsverzeichnis

„… ......................II. 372 August Reinisch The Application of the Rules of State Responsibility …” „… Investment ....F. 342 Joachim Karl International Investment Agreements and the General Body of Rules of …” „… ..........................................IV. 442 Christina Binder The Scope of Application of International Investment Agreements …”

Armand de Mestral III. Pre-Entry Obligations under International Law S. 685-699

„… . This is accomplished by the joint application of several freedoms of movement of citizens, services …” „… of the ASEAN Liberalizes Investment Rules’ (Jakarta, 31 January 2003), available at …” „… Mestral 693 21 22 a number of cases, applications by private persons.50 Such claims could include denial …”

Gabriel Bottini, Veronica Lavista, Mariana Lozza E. MERCOSUR and CAFTA S. 326-341

„… Lavista/Mariana Lozza 335 transfer through equitable, non-discriminatory and good faith application of their laws …” „… out research and development’, requirements deriving from the application of competition laws, and …” „… Lavista/Mariana Lozza 29 30 Rules of Procedures for Arbitration Proceedings or ICSID Additional Facility Rules;101 …”

Sabine Konrad C. Protection for Non-Profit Organisations S. 555-565

„… 6: The Scope of Application of International Investment Agreements 556 Sabine Konrad 2 handed down …” „… , Case of the Moscow Branch of the Salvation Army v. Russia, Application No. 72881/01, Judgment, 5 …” „… : The Scope of Application of International Investment Agreements 558 Sabine Konrad 5 6 7 8 9 activities …”

August Reinisch V. National Treatment S. 846-869

„… treatment forms a cornerstone of the non-discrimination rules usually contained in IIAs. Other than the …” „… concept of national treatment appears simple, its correct application to specific fact-patterns often …” „… the application of differential internal transportation charges, which are based exclusively on the …”

Katharina Diel-Gligor, Rudolf Hennecke D. Investment in Accordance with the Law S. 566-576

„… ”? – Formalities of Approval and Limitations on Their Application’ in Miguel Ángel Fernández-Ballersteros and David …” „… : The Scope of Application of International Investment Agreements 568 Katharina Diel-Gligor/Rudolf …” „… nationalen Rechts in ICSID-Schiedsverfahren’ (2008) 2 SchiedsVZ 49, 58. Chapter 6: The Scope of Application …”

Michael Hahn I. WTO Rules and Obligations Related to Investment S. 653-670

„… transfer of earnings derived from investment. However, a proposal by Germany to insert rules on …” „… contracting party.’ 6 China – Measures Affecting Imports of Automobile Parts, DS339, 340, 342. I. WTO Rules …” „… its jurisprudential progeny highlight the relevance of WTO rules for investors. Indeed, the nexus …”

Achim-R. Börner IV. Investment Law and Energy S. 1644-1676

„… the Way Forward (United Nations 2011); Elizabeth Whitsitt, ‘Application of Most-favoured-nation …” „… courts.4 In consequence, the relevant investment law and the rule of law, are but one of the contributing …” „… enforcement of the rule of law has to also be considered. Of course, the investor mistrusts (a) the local …”

Irmgard Marboe I. The System of Reparation and Questions of Terminology S. 1031-1044

„… Commission has already stated in the Lusitania case: It is a general rule of both the civil and the common …” „… particular rules on lawful expropriations. This is in contrast with a more general understanding of the term …” „… more specific rules for the calculation of the amount of compensation. Amongst a number of other …”

Ursula Kriebaum VIII. Expropriation S. 959-1030

„… Ulrike Wiegel, ‘The Application of International Law and Treaty Provisions by Arbitrators’ (2003) 4 JWI …” „… and the Rule of Law (Nomos, 2007) 743–762; Nico J. Schrijver, Sovereignty Over Natural Resources …” „… it was governed to a large extent by the customary international law rules on the treatment of aliens …”

Ursula Kriebaum III. Arbitrary/Unreasonable or Discriminatory Measures S. 790-806

„… particular set of facts may violate both the FET standard and the rule against arbitrary or discriminatory …” „… rule of the Vienna Convention on the Law of Treaties (VCLT) and have turned to dictionaries for help.50 …” „… arbitrariness as a violation of ‘the rule of law’. It further characterised the requirement by elements such as …”

Ulrich Klemm III. Financing of Foreign Direct Investment by Development Finance InstitutionsThis contribution is current as of July 2012. S. 1569-1584

„… hybrid financing and the details of the rules for subordination will not be further pursued here.53 The …” „… follows most closely the rules that have become customary in this form of financing.54 For projects that …” „… preferential treatment in the application of country risk provisioning for participations under the umbrella of …”

Karsten Nowrot Chapter 10: Obligations of Investors S. 1154-1185

„… actively involved in and concerned with the rule-making and enforcement processes in this area of law, with …” „… frequently pointed out, the expanding scope of application as well as the notably increased effectiveness of …” „… application to private persons and entities of obligations originally addressed to States only and thus might …”

Christoph Schreuer V. The Future of International Investment Law S. 1904-1912

„… indirect expropriation, has occurred. Similarly, the application of the fair and equitable treatment …” „… V. The Future of International Investment Law Christoph Schreuer A. Introduction …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Literature: August Reinisch, ‛The Future of Investment Arbitration’ in Christina Binder, Ursula …”

doi.org/10.5771/9783845258997

Caroline Bolle - A comparative overview of the mandatory bid rule in Belgium, France, Germany and the United Kingdom

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Caroline Bolle

A comparative overview of the mandatory bid rule in Belgium, France, Germany and the United Kingdom

Series: Studien zum Handels-, Arbeits- und Wirtschaftsrecht

Volume 125 2008

Results in this title

Field of application of the mandatory bid rule S. 79-84

„… threshold for the application of the mandatory bid rule has been reached333. An offer must be launchedfor a …” „… , subsection 3, No 1 of the Takeover Act. Extending the field of application ofthe mandatory bid rule to …” „… granted.Thus, the effect of the mandatory bid rule in Germany is that a general335 and,save for merger control …”

Control for the application of the mandatory bid rule S. 89-96

„… mandatory bid1. Control for the application of the mandatory bid ruleThe sole trigger for the application of …” „… opportunity).Control, for the application of the mandatory bid rule, is deemed to representa percentage of voting …” „… controlfor the application of the mandatory bid rule (as opposed to doing a case-by-caseanalysis) offers two …”

Securities determining and transactions triggering the application of the mandatory bid rule S. 156-171

„… determining and transactions triggering the application of the mandatory bid rule4.1 Securities determining …” „… the application of the mandatory bid rule in eachof the selected jurisdictions that the bidder …” „… the application of the mandatory bid rule has beenreached. But what if securities not usually …”

Titelei/Inhaltsverzeichnis S. 2-26

„… Field of application of the mandatory bid rule 793. Supervisory authority 8410Part II: Analysis of the …” „… application of the mandatory bid rule 892. The attribution of voting rights for the assessment of control 963 …” „… : The impact of the concept of control under Belgian law on the application of the mandatory bid rule1 …”

The chain principle S. 148-156

„… determining and transactions triggering the application of the mandatory bid rule4.1 Securities determining …” „… the application of the mandatory bid rule in eachof the selected jurisdictions that the bidder …” „… the application of the mandatory bid rule has beenreached. But what if securities not usually …”

Incurring the Obligation to Launch a Mandatory Bid S. 280-282

„… direct control were to qualify as the sole trigger forthe application of the mandatory bid rule, the …” „… company so asto avoid the application of the mandatory bid rule.The acquisition of shares in a target …” „… application ofthe mandatory bid rule, irrespective of the number of voting shares present or represented …”

Introduction S. 27-30

„… control of a target company that triggers the application of the mandatory bid rule. Control for …” „… determining29whether the control threshold for the application of the mandatory bid rule hasbeen reached …” „… application of the mandatory bid rule in cases where the cost of launching a mandatory bid would outweighthe …”

Exemptions and dispensations from the obligation to launch a mandatory bid S. 215-241

„… and transactions are excluded, controlfor the application of the mandatory bid rule will be deemed not …” „… Temporarily or unintentionally exceeding the relevant threshold for the application of the mandatory bid rule …” „… application of the mandatory bid rule, the competent regulator maywaive the obligation to file a mandatory bid …”

Economic Analysis, Historical Overview and Introduction to the Mandatory Bid Rule S. 279-280

„… insteademploy the market rule. Application of this cost-benefit analysis to European corporate law environments …” „… probably be the application of the new rules of internationalprivate law. Such rules are likely to give …” „… The mandatory bid rule requires that any shareholder who acquires control of atarget company must, upon …”

The Takeover Directive S. 55-65

„… that triggers the application of the mandatory bid rule is determined by the rules of the Member States …” „… application of the mandatorybid rule187. The battle188 for Société Générale de Belgique / Generale …” „… thesole trigger for the application of the mandatory bid rule.199 The Brits strongly criticised the …”

The attribution of voting rights for the assessment of control S. 96-148

„… controlControl for the application of the mandatory bid rule is not only assessed on thebasis of voting rights …” „… for the assessment of the control threshold for the application of the mandatory bid rule. 2.1 …” „… application of the mandatory bid rule in France, personshaving entered into an agreement to put a policy …”

The launch of a mandatory bid S. 171-174

„… therelevant threshold for the application of the mandatory bid rule, then only thatperson will be required to …” „… triggering events for theapplication of the mandatory bid rule, and before discussing the consideration tobe …” „… principle no obligation on the bidder to have a financial advisor to make the932 Note to Rule 9.2 of the …”

Launching a Mandatory Bid S. 282-283

„… instances,voting rights may be disregarded for the application of the mandatory bid rule inGermany.2. Launching a …” „… 282To overcome some of the adverse effects of the mandatory bid rule, the legislature or regulator …” „… has provided for certain exceptions from the acquisition of control for the application of the …”

Terms and conditions of a mandatory bid S. 197-206

„… Takeover Act excludes Sections 18, No 1 and 25 from the field of application of the mandatory bid rule …” „… , which are generally left out of thefield of application of the mandatory bid rule.1245 Part II, Chapter …” „… the mandatory bid rule1190. In each of the selectedjurisdictions1191, the obligation to make a …”

Legal framework and obligation to launch a mandatory bid S. 65-79

„… is deemed to confer control for the application of the mandatory bid rule and the method of its …” „… threshold for the application of the mandatory bid rule has been reached333. An offer must be launchedfor a …” „… alternative consideration).This seems to be a far-fetched rule because the liquidity of securities is …”

Securities to be acquired under a mandatory bid S. 206-210

„… generally left out of thefield of application of the mandatory bid rule.1245 Part II, Chapter 2, Section 3.2 …” „… 2063.3 Revocation of a mandatory bidAs a rule (but subject to what has been set out above1245) a …” „… of shares, separate offers must be made for eachclass1257. This is, in effect, an application of the …”

Timetable for launching a mandatory bid S. 174-197

„… bid rule in each of theselected jurisdictions prescribe certain deadlines by which a bidder must …” „… adequately and fairly presented; Rule 19.1 of theCity Code. The language must be clear and concise; Note 2 …” „… to Rule 19.1 of the City Code.Certain documents must be on display; Rule 26 of the City Code …”

Enforcement of the mandatory bid rule S. 241-250

„… the shares exceeding the triggering threshold for the application of the mandatorybid rule1504. 7.3 …” „… 241the rule that minority shareholders have a civil private right of action, enforceablein court …” „… ruleEnforcement of the takeover laws and regulations by the supervisory authority isof paramount importance to …”

Price to be Offered Under a Mandatory Bid S. 283-292

„… control under Belgian law on the application of the mandatory bid ruleThe concept of control under Belgian …” „… law plays an important role in connectionwith the application of the mandatory bid rule. This is …” „… knowledge of management, controlled byany of the foregoing2. Control is also relevant for the application …”

Purpose of the mandatory bid rule S. 37-40

„… shareholdersfor all their shares at a fair price.3. Purpose of the mandatory bid rule The mandatory bid rule aims …” „… premium.The main argument given in favour of the mandatory bid rule is its ability toprotect the minority …” „… , ‘The Mandatory Bid Rule’ in Essays on Corporate Finance and Governance (Stockholm: StockholmSchool of …”

Historical overview of the mandatory bid rule in the selected jurisdictions S. 44-55

„… application of the mandatory bid rule and led to uncertainty among the market players because, until then, the …” „… legislature hasrecently gold-plated the mandatory bid rule with the adoption of the TakeoverDirective, which …” „… overview of the mandatory bid rule in the selected jurisdictions1.1 United KingdomIn the United Kingdom, a …”

Selected bibliography S. 293-323

„… , Johan, The Optimality of the Mandatory Bid Rule, 13Journal of Law, Economics & Organization 433 (1997 …” „… Control Doctrine, 59 University of ChicagoLaw Review 1465 (1992).Enriques, Luca, ‘The Mandatory Bid Rule …” „… acquisitions in breach of Rule 40’ (1985)29 Journal of Business Law 47.312Mühle, Sabine, Das Wertpapiererwerbs …”

doi.org/10.5771/9783845209586

Anna M. Lohmann - The Arbitrator’s Discretion in Conflict of Laws Matters

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Anna M. Lohmann

The Arbitrator’s Discretion in Conflict of Laws Matters

Series: Streitbeilegung und Streitvermeidung im Zivilrecht - Schriftenreihe des Munich Center for Dispute Resolution

Volume 10 2022

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§ 2. Article 1(1) CISG – Rules of Application S. 33-72

„… Article 1(1) CISG – Rules of Application The CISG determines its own applicability. The Convention …” „… application, see infra, pp. 42 et seqq. § 2. Article 1(1) CISG – Rules of Application 34 subparagraph (1)(b …” „… 1(1) CISG – Rules of Application 36 Article 2 contains exceptions for contracts that are not governed …”

Introduction S. 15-19

„… arbitrators are bound by the rules of application of the CISG or whether they have discretion to apply the …” „… determines its own applicability through rules of application, i.e. Article 1(1)(a) and (b) of the CISG. As …” „… attaching rules of application, the modalities of application are inserted into the legal system of the …”

§ 3. Binding Effect of Article 1(1) in International Commercial Arbitration S. 73-165

„… substantive law, which will be introduced last.192 The application of conflict rules is not subject to 192 See …” „… . Competence to Make Conflict Rules Applicable 97 Application of Law Arbitral tribunals fulfill a function …” „… chapter, Article 1(1) of the CISG is a conflict rule, a rule of private international law. As a …”

§ 4. Application of Substantive Provisions of the CISG in International Commercial Arbitration S. 166-184

„… unclear which mandatory rules the arbitrators would have to apply. § 4. Application of Substantive …” „… includes the application of mandatory rules of any legal system. The parties can ask that an award be set …” „… violates public policy. Thus, in international arbitration, only the application of mandatory rules that …”

§ 1. The CISG and International Commercial Arbitration S. 20-32

„… criticism of the UNIDROIT’s process, the two conventions’ rules of application were ill-received. They set …” „… domestic legal systems affects the role of the rules of application of the CISG, since these rules do not …” „… the binding force of the CISG’s rules of application. According to a study by Mistelis, the Convention …”

Titelei/Inhaltsverzeichnis S. 1-14

„… International Arbitration TribunalsII. 30 Article 1(1) CISG – Rules of Application§ 2. 33 Overview over the …” „… ApplicationI. 175 Public Policy Violation1. 175 Effet Utile of European Law2. 176 Reviewability of Type of …” „… . 29 Compatibility of the CISG and International Commercial Arbitration I. 29 Application by …”

Conclusion S. 185-186

„… in favor of the CISG. This result rests on the following theses: 1. The rule of application of the …” „… CISG, i.e. Article 1(1)(a) and (b), constitutes a unilateral conflict of laws rule that effects the …” „… Contracting States (lit. a), or the rules of private international law leading to the law of a Contracting …”

Bibliography S. 187-196

„… Kessedjan, Catherine, Determination and Application of Relevant National and International Law and Rules, in …” „… Application of Mandatory Rules of Law, Asian Int'l Arb. J. 2009, pp. 1–45 Weller, Marc-Phillipe …” „… the Rules of Law: a Comparative Study, U. Toronto L.J. 1941, pp. 1–32 Colombi Ciacchi, Aurelia, Party …”

doi.org/10.5771/9783748928560

Finn Arnesen, Halvard Haukeland Fredriksen, Hans Petter Graver, Ola Mestad, Christoph Vedder - Agreement on the European Economic Area

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Finn Arnesen (ed.), Halvard Haukeland Fredriksen (ed.), Hans Petter Graver (ed.), Ola Mestad (ed.), Christoph Vedder (ed.)

Agreement on the European Economic Area

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2018

Results in this title

Martin Hennig Article 48 [Non-discriminatory application of national rules] S. 517-518

„… [Non-discriminatory application of national rules] 1. The provisions of an EC Member State or an EFTA State, relative …” „… . 483. Article 48 Non-discriminatory application of national rules Hennig 517 1 Art. 48(2) lays down …” „… public service. Art. 49 lays down specific rules for the award of state aid in the transport sector and …”

Per Andreas Bjørgan Article 25 [Responsibilities of the ESA in the field of the competition rules] S. 1012-1018

„… the powers and functions of the Commission in the application of the EU Competition rules. The list of …” „… to ensure the application of the EEA competition rules. This competence is however considerably …” „… version of de-centralised application of the EEA Competition rules in the EF- TA-pillar. Such national …”

Tarjei Bekkedal Article 59 [Public undertakings, services of general economic interest] S. 568-584

„… Agreement, in particular to the rules on competition, in so far as the application of such rules does not …” „… application of e.g. the fundamental freedom to provide services, the rules on competition or the rules on …” „… only if the application of the EEA competition rules would obstruct the performance of the particular …”

Martin Hennig Article 47 [Scope of application] S. 500-517

„… Agreement extends the application of the key principles and rules on transport found in Title VI of the TFEU …” „… [Non-discriminatory application of national rules] 1. The provisions of an EC Member State or an EFTA State, relative …” „… . 483. Article 48 Non-discriminatory application of national rules Hennig 517 1 …”

Ingvald Falch Article 4 [Non-discrimination on grounds of nationality] S. 196-209

„… particular of the special rules in secondary legislation. Within the scope of application this Agreement If a …” „… Lichtenstein compared to other EEA States. For that reason, the EFTA Court did not rule out the application of …” „… nationality] Within the scope of application of this Agreement, and without prejudice to any special …”

Gunnar Thor Pétursson Article 8 [Free movement of goods, scope of application] S. 270-281

„… application of the common EEA rules,16 and, among other things, pointed to the abovementioned fact that …” „… case demonstrates well the sometimes complex application of the rules on product coverage. The case …” „… setting rules on trade in goods’.50 Therefore, the EFTA Court ruled that the field of application of the …”

Dora Sif Tynes Article 109 [The two-pillar surveillance system] S. 852-860

„… surveillance and homogeneous application of common rules throughout the EEA. The General Court of the European …” „… to those of the Commission under the TFEU for the application of the competition rules. Art. 58 EEA …” „… , application and interpretation of the competition rules. This is primarily done by exchange of information and …”

Thomas Chr. Poulsen Article 46 [Contractual and non-contractual liability of the ESA] S. 1066-1074

„… coextensive with its application under the EEA State liability rules (para. 120). An assessment of this …” „… ) of the Rules of Procedure of the EFTA Court, it must be required of an application seeking …” „… the rule of law infringed must be intended to confer rights on individuals; secondly, that the breach …”

Finn Arnesen Article 126 [Territorial application of the EEA Agreement] S. 945-953

„… of the State aid rules is compatible with Art. 125.15 The Norwegian Government has appointed a …” „… [Territorial application of the EEA Agreement] 1. The Agreement shall apply to the territories to which the …” „… provisions: a) The provisions of this Agreement shall not preclude the application of the provisions in force …”

Dora Sif Tynes Article 108 [The ESA and the EFTA Court: Establishment and competences] S. 840-852

„… competences Tynes 849 24 25 26 27 rule of law relating to their application, or misuse of powers. For the most …” „… application of common rules throughout the EEA. The General Court of the European Union (previously the Court …” „… , with regard to the application of this Agreement, be competent, in particular for: a) Actions …”

Henrik Bull Article 21 [Border controls and cooperation in customs‑related matters] S. 341-349

„… application of antidumping measures and countervailing duties’. Chapter 3: Cooperation in customs-related …” „… nature. Within their limited scopes of application, Art. 21(3) on trade facilitation covers wider …” „… . Art. 16 allows for the application of greater facilities that two or more of the Contracting Parties …”

Per Andreas Bjørgan Article 22 [Monitoring the application of the EEA Agreement and the SCA] S. 1007-1009

„… extensive tasks in monitoring the application of the EFTA States to ensure that the EEA rules have been …” „… secondary acts regarding ESA’s surveillance activities in the fields of general internal market rules …” „… , public procurement, state aid and competition. Article 22 [Monitoring the application of the EEA …”

Thomas Chr. Poulsen Article 42 [Protocols and Annexes as integral part of the SCA] S. 1051-1056

„… the application of Community rules on the procurement procedures of entities operating in the water …” „… ) No 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the …” „… Aid Guidelines is thus to ensure a uniform and transparent application of the EEA State aid rules …”

Per Andreas Bjørgan Article 4 [Establishment of the EFTA Surveillance Authority] S. 984-987

„… application of the rules of the EEA Agreement on competition; (c) monitor the application of the EEA Agreement …” „… ing the interplay between rules of secondary and primary EU law, where one or the other lacks any …” „… common rules and equal conditions of competition. This means that the agreement shall be interpreted and …”

Christian Jordal, Gjermund Mathisen Article 62 [Review of State aid through the ESA and the Commission] S. 598-605

„… detailed rules for the application of Art. 108 TFEU.2 The Regulation defines key concepts in state aid …” „… . (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Art. 108 of the …” „… Council Reg. (EU) 2015/1589 laying down detailed rules for the application of Art. 108 TFEU. 4 Decision No …”

Halvard Haukeland Fredriksen Article 111 [Dispute resolution in the EEA Joint Committee] S. 865-883

„… settle disputes related to the interpretation or application of other EEA-rules could presumably have …” „… interpretation or application of common EU/EEA rules, it is within the EFTA States’ power to remedy this by …” „… EEA Court with jurisdiction to decide on the interpretation and application of EEA rules other than …”

Pål Wennerås Article 3 [Relevance of ECJ case law] S. 980-984

„… application of EEA law), and Art. 24 and 25 (duty to issue competition and state aid guidelines corresponding …” „… are identical in substance to corresponding rules of the Treaty establishing the European Economic …” „… application of these two Treaties, shall in their implementation and application be interpreted in 5 See ESA …”

Håvard Ormberg Article 121 [Nordic cooperation, regional union between Switzerland and Liechtenstein] S. 924-927

„… found that Art. 11 of Protocol 3 did not preclude the application of the general rules of the EEA …” „… the Protocol if it grants more favourable trade regimes, it does not extend to cover the rules of …” „… interpretation of the EEA Agreement. Consequently, it has no jurisdiction over the application or interpretation …”

Ólafur Jóhannes Einarsson Article 31 [Freedom of establishment] S. 400-420

„… general application had not been made use of. Having determined that the rules of the collective agreement …” „… the applications submitted. Point III provides for the important rule that family members of those EEA …” „… . The detailed rules on the acquisition of host State title and its relationship with the general …”

Convention establishing the European Free Trade Association EFTA Convention S. 1103-1125

„… do not preclude the application by a Member State of particular rules concerning the establishment …” „… conditions of competition, and the respect of equivalent rules, within the area of the Association; (b) the …” „… indirectly. Article 5 Rules of origin and administrative cooperation2 1. With respect to the rights and …”

Per Christiansen Article 39 [Actions for non-contractual liability] S. 1048-1050

„… necessarily be coextensive with its application under the EEA State liability rules”. Account must be taken of …” „… obligation shall not affect any obligation which may result from the application of Article 46, second …” „… reparation where the following three conditions are met: first, that the rule of law infringed is intended to …”

Ronny Gjendemsjø Article 55 [Supervision] S. 555-558

„… approaches to competition law and usefully stresses upon the importance of economics in the application of …” „… for in Article 108(1) shall ensure the application of the principles laid down in Articles 53 and 54 …” „… to Art. 55, the authorities shall investigate cases on its own initiative or on the application of a …”

Finn Arnesen, Halvard Haukeland Fredriksen Preamble S. 150-171

„… homogeneous European Economic Area, based on common rules and equal conditions of competition and providing …” „… Economic Area and convinced of the need to contribute through the application of this Agreement to the …” „… precautionary and preventive action should be taken; DETERMINED to take, in the further development of rules, a …”

Finn Arnesen, Halvard Haukeland Fredriksen Preamble S. 975-977

„… interpretation and application of the EEA Agreement and those provisions of the Community legislation which are …” „… acts adopted in application of the Treaties establishing the European Economic Community and the …” „… Agreement, be relevant to the extent necessary for the proper interpretation and application of the …”

Martin Hennig Article 52 [Charges for crossing the borders] S. 524-525

„… on 3.5.2016 in Case C-253/16, Flibtravel International (undecided), concerning the application of Art …” „… the internal market in application of Arts. 107 and 108 of the Treaty. On the General block exemption …” „… remarks on the rules applicable to undertakings Arts. 53 to 60 are the competition law provisions of the …”

Titelei/Inhaltsverzeichnis

„… interpretation and application of the common EU/EEA rules throughout the EEA. Consequently, the principle of …” „… 47 500 Non-discriminatory application of national rules ...............Article 48 517 State aid in …” „… addressed, explained and overcome, thus facilitating also the subsequent application of imported EEA law …”

Dora Sif Tynes Article 110 [Enforceability of decisions of the ESA and the Commission and of judgments of the EFTA Court and the EU Courts] Einarsson/FredriksenEnforceability of decisions and judgements S. 860-865

„… fall under the competition rules of the TFEU. ESA is responsible for cases where there is an effect on …” „… competition rules.23 ESA will nevertheless make an independent assessment of the impact the case may have on …” „… disagreement between ESA and the Commission concerning the implementation of the state aid rules. In such an …”

Thomas Chr. Poulsen Article 43 [Statute and Rules of procedure of the EFTA Court] S. 1056-1065

„… the field of competition law. Article 43 [Statute and Rules of procedure of the EFTA Court] 1. The …” „… rules of procedure to be approved by the Governments of the EFTA States by common accord. The Statute of …” „… RoP. A new set of rules may be expected in early 2018. 29 The State Aid Guidelines are commented above …”

Ólafur Jóhannes Einarsson Article 36 [Freedom to provide services] S. 450-470

„… the application of any national rules which have the effect of making the provision of services …” „… effectiveness. The application of the host EEA State’s national rules to service providers is liable to prohibit …” „… provided.3 Such rules regarding the equality of treatment between nationals and non-nationals forbid not …”

Per Andreas Bjørgan Article 18 [Publication of decisions] S. 1004-1005

„… addressed and shall take effect upon such notification. The Rules of Procedures Art. 17 stipulates that the …” „… may issue fines to undertakings for certain breaches of the air safety rules. Article 20 [Language …” „… not reveal anything from the deliberations, as these are non-public according to Art. 13 of the Rules …”

Per Andreas Bjørgan Article 23 [Monitoring within the field of public procurement law] S. 1009-1011

„… and for the application of the rules in individual cases. Art. 23 refers for this purpose, in line …” „… failure to act cases before the EFTA Court. With regard to infringements of internal market rules, ESA …” „… rules of practices may violate EEA law. Based on an investigation, ESA may initiate infringement …”

Gunnar Thor Pétursson Article 11 [Quantitative restrictions on imports and measures having equivalent effect] Quantitative restrictions on imports S. 289-299

„… 9 July 2008 laying down procedures relating to the application of certain national technical rules …” „… noted that even if no discrimination was apparent, the application of the licensing scheme could amount …” „… . However, the EFTA Court left it to the national court to decide whether the application of these national …”

Marthe Kristine Fjeld Dystland, Ida Sørebø Article 7 [Binding effect and implementation of EU legal acts] S. 248-270

„… States may adopt rules for the application of a regulation if they do not obstruct its direct …” „… rules, despite the assertions of procedural homogeneity. Secondly, there is no escaping that at least …” „… legislation, as a general rule, is not allowed as it brings “into doubt both the legal nature of the …”

Henrik Bull Article 24 [Energy] S. 356-361

„… rules of the law of contractual or noncontractual liability or a special liability system existing at …” „… market, falls outside the scope of application of the EEA Agreement ratione materiae. Under the EEA …” „… be roughly divided into two groups: Rules concerning stockpiling of crude oil and petroleum products …”

Simen Hammersvik Article 65(1) [Public procurement] S. 612-641

„… application of the Procurement Directives. At the outset, the rules on free movement obviously apply for …” „… provisions relating to the application of Community rules on the procurement procedures of entities operating …” „… detailed rules for the application of Arts. 34 and 35 of Dir. 2014/25/EU on procurement by entities …”

Thomas Chr. Poulsen Article 125 [The EEA Agreement and national systems of property ownership] S. 942-945

„… property ownership] This Agreement shall in no way prejudice the rules of the Contracting Parties governing …” „… interpreted to the effect that rules governing the system of property ownership fall outside the scope of the …” „… EEA Agreement. No provision exempts such rules from the scope of the Agreement. On the contrary …”

Ronny Gjendemsjø Article 58 [Cooperation between the ESA and the Commission] S. 566-568

„… so far as the application of such rules does not obstruct the performance, in law or in fact, of the …” „… der the control of ESA, the concentration shall be subject to the same rules as if it had an EU …” „… implementation, application and interpretation of the provisions of this Agreement to this end, the competent …”

Christian Franklin Article 3 [Principle of loyalty] S. 180-196

„… are similarly under an obligation to ensure the correct application of the choice of law rules …” „… rules and provisions through its reference to attainment of the Agreement’s objectives. As such, it …” „… nevertheless makes it challenging to attempt to catch all of its many actual and potential applications in a …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 102 [Amendments of Annexes, incooperation of EEA-relevant EU legislation] S. 803-819

„… of the corresponding new Community legislation with a view to permitting a simultaneous application …” „… within the competence of the legislator. 4. If, notwithstanding the application of the preceding …” „… application” of legislation in the whole of the EEA Art. 102(1) lays down the procedure for incorporating EEA …”

Halvard Haukeland Fredriksen Article 105 [Homogeneous interpretation of EU and EEA law] S. 825-835

„… application of EEA rules and corresponding rules of Community law. Importantly, the ECJ judges would be in …” „… application of the EEA Agreement and corresponding Community rules in a homogeneous EEA.’9 3 Art. 104(1) of …” „… the ECJ itself, the ECJ feared that its future interpretation of the rules governing the internal …”

Per Andreas Bjørgan Article 5 [Responsibilities and means] S. 987-990

„… this Agreement; (b) ensure the application of the rules of the EEA Agreement on competition; (c …” „… ) establishes ESA as a competition authority empowered to ensure the application of the EEA competition rules …” „… ) monitor the application of the EEA Agreement by the other Contracting Parties to that Agreement. 2. To …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 103 [Requirements for binding Joint Committee decisions] S. 819-824

„… . 103(1) first subparagraph explains the main rule for the entry into force of Joint Committee Decisions …” „… application of the Joint Committee Decision pending the fulfilment of constitutional requirements.7 …” „… , provisional application of international treaties that need approval by the Storting would violate Section …”

Article 124 [Non-discrimination of investments] Henrik Bull S. 939-942

„… firms within the meaning of Art. 34, without prejudice to the application of the other provisions of …” „… longer, the provision must have been meant to have a scope of application of its own. In providing that …” „… the provision should only apply “without prejudice to the application of the other provisions 50 …”

Fredrik Bøckman Finstad Norway and the EEA S. 59-80

„… consequently Norway followed suit and withdrew its applications. A third Norwegian attempt of joining the EEC …” „… approximation of rules and standards went sluggishly due to the EC’s internal processes of making the internal …” „… market rules and standards. As a result of a strong political push by the Norwegian prime minister Gro …”

Per Andreas Bjørgan Article 16 [Obligation to state the reasons for decisions] S. 1003-1004

„… Surveillance Authority shall act by majority of its Members. The rules of procedure shall determine the quorum …” „… decisions. It follows from Art. 8 of the Rules of Procedures that two Members present shall constitute a …” „… important to ensure a homogenous application of the EEA Agreement. In FIFA, the EFTA Court noted that the …”

Pål Wennerås Article 6 [Homogeneity] S. 209-248

„… Contracting Parties themselves. In contrast, the application of the other general principles laid down in this …” „… identical in substance to corresponding rules of the Treaty establishing the European Economic Community and …” „… the Treaty establishing the European Coal and Steel Community and to acts adopted in application of …”

Per Andreas Bjørgan Article 13 [Rules of procedure] S. 997-1002

„… rules apply. As for the processing of access requests, Art. 7 stipulate that applications shall be …” „… Courts, but ESA has continued to base its application of the rules on the case law of the EU courts. Reg …” „… convincing in order to justify the lack of rotation foreseen in Art. 12. Article 13 [Rules of procedure] The …”

Index S. 1125-1141

„… National competition authorities – application of EEA competition rules III 25 10 National courts …” „… Autonomy EU legal order I EU 45 ‘Average consumer’ II 72 8 Aviation safety rules II 47 40 Award of …” „… minimis rule I NOR 32 – delayed notification II 103 9 – entry into force of JCDs II 103 5 ff. – EU …”

Jóhanna Jónsdóttir Article 79 [Dialogue and consultation] S. 754-757

„… relation to Part VI. Indeed Art. 102 has never been given application under Part VI and, as a general rule …” „… incorporation of these rules into Protocol 31 which would arguably be a pragmatic solution rather than the more …” „… Contracting Parties wished to achieve by specifically enabling the application of the residual provisions of …”

Per Christiansen Article 36 [Action for annulment] S. 1041-1046

„… Agreement or of any rule of law relating to their application, or misuse of powers.2 With the exception of …” „… resulting from [EEA] rules without the application of other intermediate rules”.25 VI. The time limit Art …” „… essential procedural requirement, or infringement of this Agreement, of the EEA Agreement or of any rule of …”

Henrik Bull Article 40 [Free movement of capital] S. 473-488

„… that discrimination can arise only through the application of different rules to comparable situations …” „… or the application of the same rule to different situations. In relation to direct taxes, the …” „… Article 39 [Scope of application] The provisions of Articles 30 and 32 to 34 shall apply to the …”

Halvard Haukeland Fredriksen EEA law in and beyond the text of the Main Part of the EEA Agreement S. 124-145

„… orders, settlement of disputes etc., but also the most important substantive rules. These include the …” „… in the fact that the written rules of the EEA Agreement must be supplemented by a number of unwritten …” „… themselves contain any substantive rules of a judicially enforceable nature: all of the substance is found in …”

Håvard Ormberg Article 123 [National security and trade in arms] S. 929-939

„… Ormberg 929 1 2 3 ed from the ordinary rules of the internal market. E.g., the Norwegian Defence Material …” „… scrutinizing the Member State’s application of Arts. 346 and 347 TFEU.7 Similarly, the number of Art. 123 EEA …” „… adjusted to the rules laid down in the Treaties in the event they affect the conditions of competition in …”

Margrét Einarsdóttir, Ragnhildur Helgadóttir Iceland and the EEA S. 13-35

„… Icelandic law, a customary law rule, allowing delegation of state powers to international organs under …” „… . 2 of the Constitution. It must be noted that Icelandic legal theory accepts customary rules on …” „… as amending the written constitutional text. So the rule permitting delegation of state powers to …”

Christian Jordal, Gjermund Mathisen Article 61 [Prohibition of state aid, exemptions] S. 585-598

„… . This does not mean, however, that the application of the EEA state aid rules leaves no room for the …” „… guidelines ESA binds its discretion. ESA cannot, as a rule, depart from the guidelines.1 The objective of the …” „… the state aid rules where they act as one economic unit.9 The exercise of public powers does not …”

Gunnar Thor Pétursson Article 12 [Quantitative restrictions on exports and measures having equivalent effect] Quantitative restrictions on exports S. 299-301

„… application of certain national technical rules to products lawfully marketed in another Member State. Other …” „… the basis of a technical rule to prohibit the placing of a product of the market, requiring …” „… specific national rule implementing non-enforceability of measures not duly notified under Dir. 98/34, and …”

Henrik Bull Article 23 [Technical regulations and barriers to trade in wine, product liability] S. 350-356

„… : Other rules related to the free movement of goods Article 23 [Technical regulations and barriers to …” „… standards, testing and certification have been made part of the EEA Agreement. Such common rules …” „… 22-24. As this case law concerns Art. 34 TFEU, it is clearly also relevant for the application of Art …”

Benedikt Pirker Switzerland and the EEA S. 80-101

„… fashioned after the relevant rules of EU primary and secondary law. Because of this “double parallelism …” „… particular on the pertinent rules of the EFTA Convention.3 At the same time, it is established to what extent …” „… Pirker 83 9 10 emerging EEA.22 The Swiss government explained its application for membership of 26 May …”

Ólafur Jóhannes Einarsson Article 32 [Exemptions for exercise of official authority] S. 420-423

„… exercise of official authority, the rules of the Agreement on establishment and services (cf. Art. 39) are …” „… connection with the exercise of official authority. Moreover, an application of the derogation to a whole …” „… is available as means of derogation from the EEA rules on public procurement as according to its …”

Martin Hennig Article 51 [Prohibition of State aid in the form of favorable rates or conditions] S. 522-524

„… framework of its internal rules. In terms of monitoring discriminatory pricing and conditions in the …” „… authority shall take the necessary decisions within the framework of its internal rules. 3. The prohibition …” „… authority shall take the necessary decisions within the framework of its internal rules.” It is unclear …”

Halvard Haukeland Fredriksen Article 107 [Preliminary rulings from the ECJ] S. 837-840

„… the European Communities to decide on the interpretation of an EEA rule are laid down in Protocol 34 …” „… of EEA rules to the ECJ for a binding preliminary ruling. During the EEA negotiations, the EFTA …” „… interpretation of EEA rules.2 This solution was rejected by the ECJ, however, which held it to be unacceptable …”

Ólafur Jóhannes Einarsson Article 33 [Exemptions] S. 423-434

„… principles recognised in the application of Art. 28(4) EEA, it may probably be added that in order …” „… above, the EFTA Court has deviated from that general rule when it comes to the financing of the health …” „… rules, essentially precluding any private ownership of these resources.23 In Essent, the ECJ was faced …”

Henrik Bull Article 26 [Anti-dumping and anti-subsidies measures] S. 362-367

„… adopted or maintained by a third country in respect of which international trade rules establish a right …” „… of action” – international trade rules being primarily those of the WTO but also of any other trade …” „… commercial policy in order to ensure the exercise of the Community’s rights under international trade rules …”

Håvard Ormberg Article 120 [The EEA Agreement and pre-existing agreements] S. 919-924

„… Protocols 41 and 43, the application of the provisions of this Agreement shall prevail over provisions in …” „… existing agreements governing the same subject matter because of the rules of Public International Law. As …” „… pre-existing agreements Ormberg 923 15 16 17 found that Art. 11 of Protocol 3 did not preclude the application …”

Martin Hennig Article 50 [Prohibition of discriminatory rates or conditions for carriage of goods] S. 521-522

„… own initiative or on application by an EC Member State or an EFTA State, investigate any cases of …” „… rules. Art. 50(1) prohibits discrimination in the form of carriers charging different rates and imposing …” „… . The prohibition complements the general rules on the free movement of goods in Arts. 8 to 16.1 However …”

Jonas W. Myhre Article 16 [State monopolies of a commercial character] S. 323-335

„… not lifted its burden of proof, and that in particular the application of the Treaty rules would …” „… of the application of Art. 16. The EFTA Court stated that this provision is identical in substance to …” „… Art. 11 applies to all trading rules enacted by EEA States which are capable of hindering, directly or …”

Christoph Vedder The EEA in the Union’s Legal Order S. 101-124

„… application was put on hold by the Swiss government as a result of the outcome of the referendum on the EEA …” „… 130 p. 11. 11 Agreement on the association of Iceland and Norway with the implementation, application …” „… as late as in 1987 did the ECJ have the opportunity to determine the scope of application of …”

Ronny Gjendemsjø Introduction to the competition rules applicable to undertakings S. 525-526

„… EEA establishes the competence and duty to ensure the application of the competition rules, and is …” „… of Part IV of the Agreement and contain the rules applicable to undertakings. Chapter 2 of Part IV …” „… principle of homogeneity, or uniform application.1 This implies that anyone with knowledge of the …”

Peter-Christian Müller-Graff Article 34 [Right of establishment for companies] S. 434-450

„… application of EEA law rights would be to dismiss the relevance of international law in both instances …” „… (nowadays Art. 54 TFEU) with the sole exception that its scope of application extends the right of …” „… conflicting national rules. Rather, such effects depend upon the respective rules of the respective …”

Finn Arnesen, Halvard Haukeland Fredriksen Contracting Parties S. 973-975

„… powers of ESA in the field of the competition rules applicable to undertakings and in the field of State …” „… application of the EEA Agreement’.9 This was hardly meant as criticism of ESA, but rather as recognition of …” „… of the courts, to arrive at and maintain a uniform interpretation and application of the EEA …”

Ronny Gjendemsjø Article 53 [Agreements, decisions and concerted practices] S. 526-546

„… requirement intended to define the sphere of application of community rules in relation to national laws.42 …” „… may be criticised for not limiting the scope of the rule expressed in AEG to selective distribution …” „… rules if it reduces or removes the degree of uncertainty as to the operation of the market in question …”

Per Andreas Bjørgan Article 17 [Notification and entry into effect of decisions] S. 1004

„… addressed and shall take effect upon such notification. The Rules of Procedures Art. 17 stipulates that the …” „… regard not only to its wording, but also to its context and to all the legal rules governing the …” „… concerned are familiar, summary reasons may be given.2 The structure and content of ESA’s decisions …”

Henrik Bull Article 22 [Reduction of customs duties] S. 349-350

„… countries, or the suspension of their application, may, however, have negative consequences for other EEA …” „… limits of the general tolerance rule of Art. 4(2) of Protocol 4 EEA on rules of origin, the finished …” „… : Other rules related to the free movement of goods Article 23 [Technical regulations and barriers to …”

Per Christiansen Article 34 [Advisory opinion] S. 1032-1040

„… “clearly … decisive in the interpretation and application of EEA rules by the courts” and considered by …” „… advisory opinions on the interpretation of the EEA Agreement. Supplementary rules on this procedure are …” „… validity of such acts. Therefore, although the ECJ may not rule on the validity of a treaty provision, it …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 104 [Binding effect of EEA Joint Committee decisions] S. 824-825

„… was to safeguard homogeneity between the interpretation and application of EEA rules and corresponding …” „… the EFTA States.18 The sensitivity of these rules, especially with respect to giving ESA new powers in …” „… application. Art. 104 states that decisions of the EEA Joint Committee are binding on the Contracting parties …”

Per Andreas Bjørgan Article 8 [Independence of the members] S. 993-995

„… appointments or benefits. In the event of any breach of these obligations, the EFTA Court may, on application …” „… other more detailed rules regarding the conduct of the members and their spouses, disclosure of their …” „… EFTA Court may, on application by the ESA, rule that the member concerned be, according to the …”

Per Andreas Bjørgan Article 20 [Language] S. 1005-1006

„… certain breaches of the air safety rules. Article 20 [Language] Individuals and economic operators shall …” „… of the EFTA States and the European Communities as regards notifications, applications and complaints …” „… from the deliberations, as these are non-public according to Art. 13 of the Rules of Procedures, see …”

Christian Franklin Article 2 [Principle of loyalty] S. 978-980

„… ‘EFTA States’ found in Art. 2 litra b EEA. Also in the interpretation and application of the SCA …” „… consideration in the interpretation and application of EEA law), and Art. 24 and 25 (duty to issue competition …” „… Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing …”

Per Christiansen Article 31 [Infringement action] S. 1025-1029

„… Reg. (EU) 2015/1589 laying down detailed rules for the application of Article 108 of the Treaty on the …” „… ad hoc Judge, with the exception of the rules in Arts. 4(2) and 13 of the Statute restricting a …” „… from receiving a copy of the application and the defence.16 They may also formally intervene in support …”

Ólafur Jóhannes Einarsson Article 30 [Recognition of diplomas, certificates] S. 391-400

„… expected to export was established. The application of the homogeneity principle in later case law, however …” „… self-employed capacity. The EFTA Court sustained ESA’s application to the effect that this was in breach of Art …” „… case.7 Art. 5 of the Directive sets out the general rule regarding the freedom to provide services. The …”

Finn Arnesen, Halvard Haukeland Fredriksen Article 2 [Definitions] S. 176-180

„… can derive rights from (an analogous application of) the Citizenship Directive.26 Article 2 …” „… the territory of Svalbard from the application of the EEA Agreement.1 The Protocols are addressed in …” „… sometimes even EEA-related parts of EU law). The term ‘EEA rules’ which is found, inter alia, in the …”

Karin Fløistad Article 28 [Free movement of workers] S. 369-385

„… as third-country nationals as far as the application of the EU’s social security rules is concerned …” „… the case law on the free movement of persons. In particular, the Court has struck down national rules …” „… legislation.22 Scrutiny of the national rules’ proportionality characterises the case law – Union Citizenship …”

Ole-Andreas Rognstad Article 65(2) [Intellectual property rights] S. 641-659

„… .220 As to the remedies for breach of primary law, the absence of EEA rules on remedies for …” „… to lay down enforcement rules safeguarding the rights of the EEA Agreement. However, such rules must …” „… , first, comply with the principle of equivalence, implying that national rules on remedy must be no less …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 100 [Participation of EFTA States’ experts in the EU comitology system] S. 800-802

„… EU rules and at the early stages of the EEA negotiations, it became clear that in order to safeguard …” „… issues of relevance to the Agreement. Otherwise, there would be a risk of common rules developing in …” „… States who are responsible at the national level for the implementation and application of the relevant …”

Martin Hennig Article 49 [State aid in the transport sector] S. 518-521

„… in the concept of a public service. Art. 49 lays down specific rules for the award of state aid in …” „… , that Art. 77 EEC Treaty [now Art. 93 TFEU] does not exempt the application of the general provisions on …” „… ) Article 7 contains mandatory rules on the publication of invitations to tender for public service …”

Per Andreas Bjørgan Article 9 [Appointment of the members] S. 995-996

„… code of conduct or other more detailed rules regarding the conduct of the members and their spouses …” „… obligations, the EFTA Court may, on application by the ESA, rule that the member concerned be, according to …” „… professional activities but the exact scope of the limitation remains unclear. ESA has hitherto not published a …”

Per Andreas Bjørgan Article 25 a [Responsibilities in the field of financial supervision] S. 1018-1019

„… or administrative proceedings for the application of Arts. 53 or 54 EEA. In order to prepare for …” „… and the Commission of the European Communities concerning the application of the EEA Agreement are …” „… concerns the establishment, organisation and jurisdiction of the EFTA Court. Further rules are laid down in …”

Per Christiansen Article 27 [The establishment of the EFTA Court] S. 1019-1020

„… and the Commission of the European Communities concerning the application of the EEA Agreement are …” „… concerns the establishment, organisation and jurisdiction of the EFTA Court. Further rules are laid down in …” „… Court’s Rules of Procedure (“RoP”), adopted pursuant to Art. 43(2) SCA and Art. 43 of the Statute. Article …”

Per Andreas Bjørgan Article 26 [Cooperation between the ESA and the EU Commission] S. 1019

„… and the Commission of the European Communities concerning the application of the EEA Agreement are …” „… concerns the establishment, organisation and jurisdiction of the EFTA Court. Further rules are laid down in …” „… Court’s Rules of Procedure (“RoP”), adopted pursuant to Art. 43(2) SCA and Art. 43 of the Statute. Article …”

Per Christiansen Introduction to Part IV S. 1019

„… and the Commission of the European Communities concerning the application of the EEA Agreement are …” „… concerns the establishment, organisation and jurisdiction of the EFTA Court. Further rules are laid down in …” „… Court’s Rules of Procedure (“RoP”), adopted pursuant to Art. 43(2) SCA and Art. 43 of the Statute. Article …”

Christian Frommelt Liechtenstein and the EEA S. 35-59

„… . Implementation of EEA law . . . . . . . 43 3. Application of EEA law . . . . . . . . . . . 48 VII …” „… rejection of Liechtenstein’s application to join the League of Nations in 1920 due to country’s small size …” „… where there is a conflict between EEA rules and other legal rules (see Protocol 35 of the EEA Agreement …”

Finn Arnesen, Halvard Haukeland Fredriksen Article 1 [Object and purpose] S. 171-176

„… Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to …” „… of competition, and respect of the same rules, thus enabling continuous and balanced strengthening of …” „… the EEA rules in question in the light of the new EU rules on cultural and linguistic diversity and …”

Per Andreas Bjørgan Introduction to Part III Article 22 Monitoring the application of the EEA Agreement S. 1007

„… secondary acts regarding ESA’s surveillance activities in the fields of general internal market rules …” „… , public procurement, state aid and competition. Article 22 [Monitoring the application of the EEA …” „… Agreement and the SCA] In order to ensure the proper application of the EEA Agreement, the EFTA Surveillance …”

Christophe Hillion Article 118 [Extension of the EEA Agreement to new fields] S. 904-912

„… application. It does not explicitly contemplate the revision of the EEA institutional framework, nor does it …” „… , competition rules. Yet it has been noted that the notion of “EEA relevance” that triggers the regular updating …” „… stricto sensu, without having formally to extend the scope of application of the Agreement through Art …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 3 [Responsibilities] S. 1085-1089

„… , carry out the following tasks: a) take decisions necessary for the management of rules of, or adopted …” „… Agreement, in the cases which, through the application of Protocol 1 to the EEA Agreement, follow from the …” „… Protocol 1 to this Agreement and which through the application of paragraph 5 of Protocol 1 to the EEA …”

Per Andreas Bjørgan Article 12 [The President of the EFTA Surveillance Authority] S. 996-997

„… or if he has been guilty of serious misconduct, the EFTA Court may, on application by the EFTA …” „… [Rules of procedure] The EFTA Surveillance Authority shall adopt its own rules of procedure. The Rules of …” „… Services Directorates and formed the Internal Market Affairs Directorate. It follows from the Rules of …”

Per Christiansen Article 40 [Suspensory effect of actions brought before the EFTA Court] S. 1050-1051

„… circumstances so require, order that application of the contested act be suspended. Art. 40 corresponds to Art …” „… . Enforcement may be suspended only by a decision of the Court. The procedure for applications for suspension …” „… . Although Art. 35 of the Statute grants the President the authority to adjudicate on applications of this …”

Per Andreas Bjørgan Article 19 [Enforceability of decisions] S. 1005

„… certain breaches of the air safety rules. Article 20 [Language] Individuals and economic operators shall …” „… of the EFTA States and the European Communities as regards notifications, applications and complaints …” „… from the deliberations, as these are non-public according to Art. 13 of the Rules of Procedures, see …”

Introduction S. 1-13

„… agreement of association was preferable to further membership applications from EFTA States at a time when …” „… ) applied for membership of the EC/EU even before the EEA negotiations were concluded. The Swiss application …” „… and rules on a broad range of issues without being a member and without voting rights. This raises …”

Per Andreas Bjørgan Article 21 [Annual report] S. 1006-1007

„… cover all instances of a proceeding, whether it be opened on notification, application or complaint …” „… secondary acts regarding ESA’s surveillance activities in the fields of general internal market rules …” „… , public procurement, state aid and competition. Article 22 [Monitoring the application of the EEA …”

Per Andreas Bjørgan Article 7 [Composition] S. 992-993

„… Council Reg. (EU) 2015/1589 laying down detailed rules for the application of Art. 108 TFEU. 7 See the …” „… appointments or benefits. In the event of any breach of these obligations, the EFTA Court may, on application …” „… competence to request information from undertakings has been of limited practical importance. Subsequent …”

Ronny Gjendemsjø Article 57 [Merger control] S. 563-566

„… bodies that shall ensure the application of the principles laid down in Arts. 53 and Art. 54 …” „… Gjendemsjø 565 6 7 8 9 der the control of ESA, the concentration shall be subject to the same rules as if it …” „… promoting a homogeneous implementation, application and interpretation of the provisions of this Agreement …”

Tron Løkken Sundet Article 68 [Labour law] S. 664-677

„… provisions leaving un-notified changes without effect, and there were no provisions on rules of evidence.19 …” „… understanding of the purpose of the directive and noted: “In the interest of the employees, a national rule may …” „… expiration of a collective agreement limit the freedom of action of the transferee, such a national rule must …”

Martin Hennig Article 14 [Internal taxation: No fiscal discrimination of imported goods] S. 311-322

„… Title VII on “Common rules on competition, taxation and approximation of laws”. To a certain extent, the …” „… limited product coverage of the EEA Agreement, concerns the application of Art. 14 to alcoholic beverages …” „… . In Einarsson, the EFTA Court expounded on the limited application of Art. 14 to alcohol.6 As 1 Case E …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 2 [Consultations] S. 1082-1085

„… the potential for unilateral application of the relevant legislation to Liechtenstein. That being said …” „… of Justice, carry out the following tasks: a) take decisions necessary for the management of rules of …” „… the present Agreement, in the cases which, through the application of Protocol 1 to the EEA Agreement …”

Dora Sif Tynes Article 5 [The droit d’évocation in the EEA Council and Joint Committee] S. 209

„… Contracting Parties themselves. In contrast, the application of the other general principles laid down in this …” „… identical in substance to corresponding rules of the Treaty establishing the European Economic Community and …” „… the Treaty establishing the European Coal and Steel Community and to acts adopted in application of …”

Per Andreas Bjørgan Article 24 [Responsibilities of the ESA in the field of State aid] S. 1011-1012

„… provisions are applied by the EFTA States. In application of Article 5(2)(b), the EFTA Surveillance Authority …” „… rules in Protocol 3 SCA describes the procedures for the review of new aid, including the stand still …” „… Agreement relating to the implementation of the competition rules applicable to undertakings as well as …”

Per Christiansen Article 117 [Provisions governing the EEA financial mechanism] S. 894-904

„… and the requirements of compliance with State aid rules and cooperation with the Commission were …” „… “shall be based on the common values of respect for human dignity, freedom, democracy, equality, the rule …” „… against Poland under Art. 7 TFEU (“rule of law framework”) in response to serious concerns about the rule …”

Dora Sif Tynes Article 89 [Responsibilities of the EEA Council] S. 777-779

„… difficulty. 3. The EEA Council shall by decision adopt its rules of procedure. Art. 89 establishes the EEA …” „… consultations in the framework of shaping new EEA rules.2 The competences and function of the EEA Council are …” „… comments on Art. 5. Article 89 Responsibilities of the EEA Council Tynes 777 1 2 vides that an application …”

Dora Sif Tynes Article 92 [Responsibilities of the EEA Joint Committee] S. 782-784

„… of them. 3. The EEA Joint Committee shall by decision adopts its rules of procedure. I …” „… vital job of incorporating new EU legal acts into the Agreement and thus extend the rules of the …” „… securing homogeneity in the interpretation and application of the Agreement, the settlement of disputes and …”

Christophe Hillion Article 127 [Withdrawal from the EEA Agreement] S. 953-961

„… exemption from the requirements of the EEA rules on freedom of establishment and free movement of services …” „… the EEA, and particularly the bodies in charge of monitoring the application of the Agreement on the …” „… EEA on the geographical scope of application of the Agreement foresees that it covers the territories …”

Gunnar Thor Pétursson Article 27 [Provisions concerning coal and steel products] S. 367-369

„… Agreement’s rules of origin, found in Protocol 4, replace those laid down in the ECSC FTAs. Where the ECSC …” „… , but otherwise falling with the product coverage (and rules of origin) found in Art. 8 EEA. Art. 4 of …” „… ECSC rules. However, the provisions of Protocol 25 were amended to take into account the more developed …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 6 [Decision-making in the Standing Committee] S. 1095-1096

„… thus not only a forum for political discussions. As the main rule, decisions and recommendations of the …” „… in case of application of the safeguards foreseen in Art. 38 of those Regulations:3 If an EFTA State …” „… Council. Article 7 [Rules of procedure] The Standing Committee shall adopt its rules of procedure. The …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 98 [Amendments to Annexes and selected Protocols] S. 795-797

„… annexes and a number of the protocols; and third, a simplified procedure for certain rules within the …” „… Agreement. Furthermore, Art. 118 gives certain rules regarding the preparative stages of such changes, see …” „… Agreement in accordance with Art. 8; Protocol 4 on rules of origin; Protocol 9 on trade in fish and other …”

Ernst Nordtveit, Sigrid Eskeland Schütz Article 74 [Protective measures] S. 721-737

„… NOU 2012:2 p. 576 and below in Annex XX sec. 1 General rules. 8 Decision of the EEA Joint Committee No …” „… Agreement. Agriculture and fisheries Further, environment-related EU rules in the areas of agriculture and …” „… where their characteristics so require.16 Further examples are the EU rules regulating the use of …”

Karin Fløistad Article 29 [Social security for workers and self-employed persons] S. 385-391

„… as the application of the EU’s social security rules is concerned. On the contrary, they have the …” „… EEA Agreement Protocol 1 thereto, coordinate the application of social security schemes within the EEA …” „… triggered by the extension of the new rules in the coordination regime into the EEA Agreement.12 To that end …”

Halvard Haukeland Fredriksen, Jóhanna Jónsdóttir Article 7 [Rules of procedure] S. 1096-1097

„… the Standing Committee in case of application of the safeguards foreseen in Art. 38 of those …” „… voting in the EU Council. Article 7 [Rules of procedure] The Standing Committee shall adopt its rules of …” „… procedure. The rules of procedure of the Standing Committee was adopted by Standing Committee Decision No …”

Finn Arnesen, Halvard Haukeland Fredriksen Article 1 [Definitions] S. 977-978

„… importance in relation to the SCA are Protocol 21 on the implementation of competition rules relating to 1 …” „… definition of the term ‘EFTA States’ found in Art. 2 litra b EEA. Also in the interpretation and application …” „… vant. Thus, the temporal limit of the seventh recital of the preamble to the SCA is just as …”

Per Christiansen Article 35 [Jurisdiction to review penalties imposed by the ESA] S. 1040-1041

„… rules, ESA cannot be regarded to have any margin of discretion in the assessment of complex economic …” „… 94 and 100 to 101. Rules on the burden of proof are also laid down in Art. 2 of Chapter II of …” „… , or infringement of this Agreement, of the EEA Agreement or of any rule of law relating to their …”

Thomas Chr. Poulsen Article 47 [Budget for the ESA] S. 1074-1075

„… less, given the reasonable rationale behind the rule that the liability of the EU institutions and …” „… Fredriksen that the only feasible situation where the application of the condition of a sufficiently serious …” „… strongly suggests that the application of the EU and EEA law principles of State liability is indeed …”

Dora Sif Tynes Article 91 [The EEA Council: presidency and meetings] S. 780-782

„… President. The EEA Council shall also meet when circumstances so require, in accordance with its rules of …” „… Principality of Liechtenstein. In addition, the EEA Council has also adopted its own Rules of Procedure by way …” „… by decision adopts its rules of procedure. I. Establishment of the EEA Joint Committee Art. 92 …”

Per Andreas Bjørgan Article 15 [Decision-making] S. 1003

„… Surveillance Authority shall act by majority of its Members. The rules of procedure shall determine the quorum …” „… decisions. It follows from Art. 8 of the Rules of Procedures that two Members present shall constitute a …” „… important to ensure a homogenous application of the EEA Agreement. In FIFA, the EFTA Court noted that the …”

Marthe Kristine Fjeld Dystland, Fredrik Bøckman Finstad, Ida Sørebø Article 99 [Participation of EFTA States in EU decision-shaping] S. 797-800

„… with Art. 8; Protocol 4 on rules of origin; Protocol 9 on trade in fish and other marine products; and …” „… possibility to request the ECJ to interpret EEA rules, Protocol 35 on the implementation of EEA rules, and …” „… Protocol 40 on Norway’s possibility to exempt the territory of Svalbard from the application of the …”

Ólafur Jóhannes Einarsson Article 39 [Scope of application] S. 473

„… Article 39 [Scope of application] The provisions of Articles 30 and 32 to 34 shall apply to the …” „… , Casati. Article 39 Scope of application Bull 473 1 1 2 …” „… matters covered by this Chapter. Art. 39 contains the same rule as is now laid down in Art. 62 TFEU. The …”

Finn Arnesen Article 20 [Fish and marine products] S. 338-341

„… provides the rules of origin that apply.1 Depending on the interpretation of the rulings of the EFTA Court …” „… EEA rules of origin. Article 20 Fish and marine products Arnesen 339 3 4 5 6 equivalent effect on both …” „… Contracting Parties that are accorded free movement. The rules of origin applicable to fish and marine …”

Gunnar Thor Pétursson Article 13 [Exemptions] S. 301-311

„… application of, cases from the ECJ concerning ‘corresponding’ provisions, and decided after the signature of …” „… ), those national rules ‘must be interpreted in the light of the general principles of law and in …” „… supplementary to Cassis de Dijon and Gilli cases, the ECJ held, in terms of application of the proportionality …”

Berte-Elen R. Konow Article 72 [Provisions on consumer protection] S. 691-713

„… , procedure and effects of the withdrawal), including detailed rules on a standardised withdrawal form that …” „… view to the effective judicial protection and enforcement of the substantive rules. These developments …” „… and procedural rules in decision making. The general, two-instance system of the Consumer Council and …”

Per Andreas Bjørgan Article 14 [The staff of the EFTA Surveillance Authority] S. 1002-1003

„… [Decision-making] The EFTA Surveillance Authority shall act by majority of its Members. The rules of procedure …” „… requiring unanimous decisions. It follows from Art. 8 of the Rules of Procedures that two Members present …” „… . The requirement is moreover important to ensure a homogenous application of the EEA Agreement. In FIFA …”

Thomas Chr. Poulsen Article 51 [Accession to the SCA] S. 1076-1077

„… Icelandic application for EU membership in the wake of the 2008 financial crisis, the official Norwegian …” „… implemented through Sec. 1 of Regulation of 30 October 2009 No 1323 on EEA procedural rules on State aid …” „… Regulation of 21 December 2011 No 1518 on implementation of the competition rules in the EEA Agreement …”

Per Christiansen Article 37 [Action for failure to act] S. 1046-1048

„… taken under EEA law”.7 Lack of such clarity will lead to the application being dismissed as inadmissible …” „… any obligation which may result from the application of Article 46, second paragraph. Art. 38 concerns …” „… conditions are met: first, that the rule of law infringed is intended to confer rights on individuals; second …”

Ólafur Jóhannes Einarsson Article 38 [Transport services] S. 470-473

„… EEA, the right of establishment under Art. 31 EEA is applicable and its application is not dependent …” „… [Scope of application] The provisions of Articles 30 and 32 to 34 shall apply to the matters covered by …” „… , Casati. Article 39 Scope of application Bull 473 1 1 2 …”

Per Christiansen Article 30 [Members] S. 1021-1025

„… Decision No 1/2008 of 30 June 2008 on Rules and Procedure for Occupational Activities of the Judges of the …” „… apply mutatis mutandis to the ad hoc Judge, with the exception of the rules in Arts. 4(2) and 13 of the …” „… duties of a Judge, ad hoc Judge or Advocate General before the EFTA States make the appointments. However …”

Gunnar Thor Pétursson Article 10 [Customs duties and charges having equivalent effect] S. 286-289

„… designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of …” „… similar charges, levied for the purpose of public health inspections based on purely national rules, which …” „… found in Art. 26 and apply, for example, in the case of small personal packages and occasional …”

Ronny Gjendemsjø Article 56 [Distribution of competences between the ESA and the Commission] S. 558-563

„… the territory of which a dominant position is found to exist. The rules set out in paragraph 1(b) and …” „… implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty. Article 56 …” „… /EU on certain rules governing actions for damages under national law for infringements of the …”

Per Andreas Bjørgan Article 6 [Right to information from the EFTA States and from undertakings] S. 990-992

„… Council Reg. (EU) 2015/1589 laying down detailed rules for the application of Art. 108 TFEU. 7 See the …” „… rule of thumb, ESA will carry out all operative tasks that do not involve policy considerations. Policy …” „… the context of verification or approval, information, notification or consultation similar matters …”

Peter-Christian Müller-Graff Article 77 [Provisions on company law] S. 742-751

„… Contracting Parties with equal conditions of competition, and the respect for the same rules, with a view to …” „… accordance with the procedural rules laid down in Part VII of the EEA Agreement.3 The footnotes inserted by …” „… to Dir. 2012/30/EU (as amended) which contains rules in respect of the formation of public limited …”

Per Christiansen Article 41 [Interim measures] S. 1051

„… protocols to the SCA: Protocol 1 (on the functions and powers of ESA which, through the application of …” „… of the EFTA State concerned as a result of ESA’s decision may, however, be sufficient for that …” „… interim measures other than suspension of the contested act. The broad wording of the provision (“any …”

Karl Harald Søvig Article 70 [Equal treatment of men and women] S. 683-690

„… treatment as a fundamental right of the individual. National rules and practices derogating from that right …” „… ECJ’s reasoning in Abrahamsson implied that the Norwegian earmarking rule fell foul of the principle of …” „… . 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an …”

Christophe Hillion Article 128 [Accession to the EEA Agreement] S. 961-968

„… becoming a member of EFTA may, apply to become a party to this Agreement. It shall address its application …” „… geographical scope of application of the EU and EFTA Treaties.4 The reference to “states” as potential …” „… guarantees that its administration and judiciary will ensure effective and homogeneous application of EEA law …”

Karl Harald Søvig Article 69 [Equal pay for equal work] S. 677-683

„… application of the principle that men and women should receive equal pay for equal work. For the purposes of …” „… measures to ‘ensure the application of the principle of equal opportunities and equal treatment of men and …” „… work’ and dictates that each Contracting Party shall ‘ensure and maintain’ the application of this …”

Per Christiansen Article 46 [Exchange of views and information] S. 497-500

„… reach the EEA Agreement’s full potential.10 Chapter 6: Transport Article 47 [Scope of application] 1 …” „… . 45(1). It follows from Art. 45(2) on prior consultation and exchange of information of all measures …” „… grounds of secrecy or urgency. These grounds are spelt out in a more detail in Art. 45 than in Protocol 18 …”

Per Christiansen Article 38 [Obligation to comply with judgements of the EFTA Court] S. 1048

„… obligation shall not affect any obligation which may result from the application of Article 46, second …” „… reparation where the following three conditions are met: first, that the rule of law infringed is intended to …” „… Article 38 [Obligation to comply with judgements of the EFTA Court] If a decision of the EFTA …”

Finn Arnesen Article 119 [Annexes and Protocols as integral part of the Agreement] S. 912-919

„… main rule following from another part of the Agreement, and that would mandate a strict interpretation …” „… approaches. Here, the EFTA Court was called upon to interpret the rules of origin with regard to trade in …” „… the rules of origin.’5 4 See Case E-7/11, 30.3.2012, Grund, para. 82, and more recently, Case E-26/13 …”

Ernst Nordtveit, Sigrid Eskeland Schütz Article 73 [Object and purpose of EEA environmental law] S. 715-721

„… interpretation and application of already adopted rules. The lack of genuine policy-making in the EEA Joint …” „… obligation when they add new EU environmental rules to the EEA Agreement. The lack of an explicit reference …” „… in the preamble that the parties are ‘determined to preserve, protect and improve the quality of the …”

Tron Løkken Sundet Article 66 [Improvement of working conditions] S. 659-660

„… veloped under Art. 3(1)b) of the Directive that the shape or appearance of a mark must depart …” „… application. It may well be that the questions were not formulated clearly enough in that respect, but the …” „… pleadings of the Norwegian government shed light upon the intention of the questions.81 The EFTA Court’s …”

Martin Hennig Article 15 [Repayment of internal taxes] S. 322-323

„… producers had the opportunity to adapt to the rules of the importing state and thus being able to access the …” „… of the application of Art. 16. The EFTA Court stated that this provision is identical in substance to …” „… Viewed in light of the ECJ’s willingness to accept various national policy choices as grounds for …”

Ronny Gjendemsjø Article 54 [Abuse of a dominant position] S. 546-555

„… economics in the application of competition rules”.58 It is not clear if this statement indicates that the …” „… decision was appealed all the way to the Supreme Court. The case was based on the application of a …” „… interpreted in the same manner as Art. 102 TFEU.47 The application of Art. 54(2)(c) in Sorpa and the …”

Finn Arnesen, Halvard Haukeland Fredriksen The Contracting Parties S. 145-150

„… rules and equal conditions of competition and providing for the adequate means of enforcement including …” „… need to contribute through the application of this Agreement to the reduction of economic and social …” „… , THE KINGDOM OF BELGIUM, THE REPUBLIC OF BULGARIA, THE CZECH REPUBLIC, THE KINGDOM OF DENMARK, THE …”

Halvard Haukeland Fredriksen Article 106 [Exchange of information concerning relevant judgements] S. 835-837

„… such courts on the interpretation and application of, on the one hand, this Agreement or, on the other …” „… Communities to decide on the interpretation of an EEA rule are laid down in Protocol 34. 6 Case E-2/94 …” „… Given the EFTA Court’s very far-reaching understanding of homogeneity in Gunnarsson and Jabbi, it …”

Jóhanna Jónsdóttir Article 81 [EFTA States’ participation in EU programmes] S. 763-767

„… establishing activities which they wish to participate in contain clauses reserving the application of the EEA …” „… cember 2016. Often these networks and bodies have links to EU programmes – each of these networks …” „… example is the inclusion of the Regulation for a European Research Infrastructure Consortium (ERIC)15 in …”

Halvard Haukeland Fredriksen Article 112 [Safeguard measures] S. 883-888

„… limitation of their scope of application. Each Contracting Party may at any time request the EEA Joint …” „… to the low number of substantial cases before the EFTA Court. It is therefore not surprising that …” „… Article 112 [Safeguard measures] 1. If serious economic, societal or environmental difficulties of a …”

doi.org/10.5771/9783845275796

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

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

„… remaining assets and liabilities.2 Article 156 Application of rules on divisions by acquisition 1. Articles …” „… 3 I. Application of Rules on Division by Acquisition The procedure for divisions by acquisition …” „… (eds), Gesellschaftsrecht in Europa (Nomos, 2019), § 52-54, p. 1713. Art 156 Application of rules on …”

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

„… shareholders for the application of the rule of reciprocity. Background The background of Art 12 is manifold …” „… ) stipulates, that for the application of the rule of reciprocity, apart from the opt-in of the Member State …” „… accordance with the rules applicable to amendment of the articles of association. The decision shall be …”

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

„… the rules would only apply to the formation of the company, in practice, the scope of application …” „… rules. VIII. Direct Application Article 51 (1) and Article 51 (2) are unconditional and sufficiently …” „… precise to fulfil the requirements of a direct application (→ Intro Art 44 mn. 46). The same does not …”

Silja Maul, Larissa Furtwengler Introduction S. 979-981

„… takeover barriers by application of the reciprocity rule and the breakthrough rule (→ Art. 11 mn. 5 et seqq …” „… .) as far as these rules are applied by the Member States and/or the companies. (4) The creation of …” „… regarding Art 9 (duty of neutrality) and Art 11 (breakthrough rule), within which the Member States can …”

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

„… of application of any subsequently agreed rules or, in the absence of agreed rules, until the …” „… application of standard rules in accordance with point (a) of Part 3 of the Annex to Directive 2001/86/EC. 5 …” „… existing rules on employee representation until the date of application of subsequently agreed rules or, in …”

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

„… body mandated under national law to deal with any aspect of the application for registration of …” „… detailed rules for the online registration of branches, including rules on the documents and information …” „… required to be submitted to a competent authority. As part of those rules, Member States shall ensure that …”

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

„… application of the standard rules contained in Part 3 of the Annex to that Directive shall be raised from 25 …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 (ii) Direct application of standard rule …” „… been modified for crossborder mergers to one third. Direct application of standard rule Pursuant to …”

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

„… different materiality definitions for the application of paragraph 4 than those for the application of …” „… are aggregated for the purposes of those paragraphs. 9. This Article is without prejudice to the rules …” „… , which can lead to a system of rules on approval that is entirely outside of the sphere of the general …”

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

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. Scope of Application …” „… cross-border divisions and conversions and provides additional rules on cross-border mergers of limited …” „… strict test of the substantive and procedural provisions of their own national rules as well as the legal …”

Tobias de Raet Article 93 Approval by the general meeting of each of the merging companies S. 518-522

„… context. VII. Scope of Application in Regard to other Types of Mergers Article 92 also applies to mergers …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. Rules which apply to the alteration of the articles of association . . . . . . . . . . 10 II …” „… . Scope of Application in Regard to Other Types of Mergers . . . . . . . . . . . . . . . . . . 14 I …”

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

„… application of the law of the departure Member State concerning the satisfaction or securing of pecuniary or …” „… contractual agreement. The option of instituting such proceedings shall be in addition to other rules on the …” „… . Date of disclosure of the draft-terms of the cross-border conversion . . . . . 13 4. Application for …”

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

„… any subsequently agreed rules or, in the absence of agreed rules, until the application of standard …” „… participation that applied prior to the cross-border division continue to apply until the date of application of …” „… rules in accordance with point (a) of Part 3 of the Annex to Directive 2001/86/EC. 5. The extension of …”

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

„… . Non-application of the record date Member States need not apply the record date rule to companies that are able to …” „… this regard. An analogous application of the rule that has been provided for the case of registered …” „… situations.2 Within the scope of application of the SRD, therefore, not only direct legal regulations under …”

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

„… rules governing the civil liability of the experts towards the shareholders of the company being …” „… acquired. Member States are, nevertheless, free to expand the rules regarding the liability of the experts …” „… , free to specify the legal consequences of any misconduct.4 II. Scope of Application in Regard to Other …”

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

„… ‘applicable law’ are references to the law of that Member State. For the purpose of application of Chapter Ib …” „… company or specific types of entity. Where this Directive provides for more specific rules or adds …” „… – albeit, if needed, with necessary adjustments – in the area of application of the EEA. 3 Cf. Recital 4 …”

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

„… creation of a level playing field with regards to takeover barriers by application of the reciprocity rule …” „… the statute or whether the statute provides for the adoption of accompanying rules to simplify its …” „… (breakthrough rule), within which the Member States can decide in a first step if the duty of neutrality or …”

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

„… subsidiaries could be adversely affected by application of rules, for instance where a partly owned subsidiary …” „… for stricter rules. VII. Direct Application Article 66 (1) is unconditional and sufficiently precise …” „… to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). The same does not …”

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

„… Standards Regulation – IAS Regulation) – to be discussed in section C – as far as the application of the …” „… ) – which together lay down detailed rules with a view to the auditing in general as well as the auditors of …” „… (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of …”

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

„… requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 86 Transitional provisions Member …” „… the application it was stated that the dissolved Italian company was the predecessor of the newly …” „… established Hungarian company, registration of which was applied for. The application was rejected with the …”

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

„… application (→ Intro Art 44 mn. 64). Section 4 Rules on companies’ aquisitions of their own shares Article 59 …” „… Neither Article 58 nor any other provisions of the Directive contain any rules regarding the …” „… director of a public limited liability company or (ii) a rule concerning the substantive and procedural …”

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

„… requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 58 Serious loss of the subscribed …” „… provisions of the Directive contain any rules regarding the liability of directors in case of a breach of …” „… protection. Member States are allowed to provide for stricter rules.25 IX. Direct Application Article 58 is …”

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

„… . Member States may provide for stricter rules, for instance nullity of the respective transaction.2 V …” „… . Direct Application Article 62 is unconditional and sufficiently precise to fulfil the requirements of a …” „… direct application (cf. → Intro Art 44 mn. 64). Article 63 Holding of own shares and annual report in …”

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

„… 16 17 18 (e) in so far as they are not legally determined, the rules governing the number of, and the …” „… would simplify the application of the provision laid down in point (c) of Article 14 (1) of the First …” „… instrument of incorporation of the company have to state the rules governing the number of, and the procedure …”

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

„… receipt of an application for disclosure by electronic means. 3. Member States shall ensure that the …” „… rules of Art 16 para. 4 (formerly Art 16 para. 7) still oblige the MS to avoid discrepancies between …” „… para. 5. The third party can rely on the silence of the register. This rule is mirrored in the German …”

Alexander Schall, David Günther Article 12 Consequences of nullity S. 108-110

„… for nullity.10 A doubtful example for the application of this rule is the quashing of the registration …” „… illegal – business of prostitution by the English High Court of Justice (Queen’s Bench) on application of …” „… the Attorney-General of the UK.11 The rule in the UK was and still is that “a company may not be …”

Silja Maul, Larissa Furtwengler Article 11 Breakthrough S. 1010-1014

„… 2001/34/EC; (h) the rules governing the appointment and replacement of board members and the amendment of …” „… deconstruction of defensive measures. The model assumes the application of Art 9 (2) – the duty of neutrality …” „… themselves, since Art 12 (1) allows them to not require the application of Art 9 (2) and/or Art 11 (opt-out …”

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

„… kind has a significant impact on the very scope of the directive, in view of the different rules laid …” „… consideration other than in cash”. Whereas such distinction clearly rules out the existence of any third …” „… (2) (cf. → Art 50 mn. 16 et seqq.). It is clear and undisputed that “the purpose of the rules of …”

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

„… , the harmonised application of the provisions of Sections 2, 3 and this Section, through regular …” „… Member States and therefore had a predominant impact on the rules laid down in Title 1, Chapter III of …” „… State on the grounds of divergent application of provisions for the protection of shareholders and third …”

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

„… does not fall within the scope of the Directive. Section 3 Rules on distribution Article 56 General …” „… rules on distribution 1. Except for cases of reductions of subscribed capital, no distribution to …” „… European Parliament and of the Council of 19 July 2002 on the application of international accounting …”

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

„… Section 2 Registration and disclosure rules applicable to branches of companies from other Member …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Scope of application (Arts 29, 36 and 42 …” „… for an adaption of the general disclosure rules contained in Chapter III Section 1 of the Company Law …”

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

„… specific Union rules in a particular sector should not exclude the application of this Directive. Where …” „… effective application of this Directive or the achievement of its general aim. The mere existence of …” „… of application of the SRD as regulated in Article 1 SRD. The term “regulated market” is adopted from …”

Tobias de Raet Article 106 Civil liability of members of the administrative or management bodies of the company being acquired S. 557-559

„… II. Scope of Application in Regard to Other Types of Mergers Article 105 is also applicable to …” „… of the company being acquired The laws of the Member States shall at least lay down rules governing …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 II. Scope of Application in Regard to Other Types of Mergers …”

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

„… the ground for nullity.10 A doubtful example for the application of this rule is the quashing of the …” „… board decision will therefore be valid against third parties regardless of the rule in Art 9 para. 2 …” „… diligent examination and the right to reject a faulty application.1 Article 11 Conditions for nullity of a …”

Klaus Bader, Andreas Börner Article 160 b Definitions S. 744-746

„… companies as recipient companies from the application of the cross-border division rules. As a consequence …” „… of applying the rules of the 2019 Directive to an SE as well.3 II. Three Types of Cross-Border …” „… application requires an unintentional gap of the legislator. In view of Recital 8, one could hardly argue that …”

Titelei/Inhaltsverzeichnis

„… formation of new companies’ . . . . . . . . . . . . . . . . . . . . . .Article 155 724 Application of rules …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Article 28 143 Section 2 Registration and disclosure rules applicable to branches of companies from other …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Article 35 182 Section 3 Disclosure rules applicable to branches of companies from third countries …”

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

„… the application of this law, the authorities of the Member State of the recipient company are, however …” „… application of the International Financial Reporting Standards (IFRS) is concerned; – Third, the Directive …” „… 2002 on the application of international accounting standards, OJ L 243, 11/09/2002, p. 1. 3 Directive …”

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

„… However, there is some practical justification for the rule in the context of the signing and closing of …” „… specified period has elapsed between the date of filing and the date of the application. Such a specified …” „… divergent legal situation (Art 16 para. 5 subpara. 1). But only constitutive knowledge of the true …”

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

„… and 3 stipulate exceptions to the scope of application of the Directive. Background Art 1 defines the …” „… unitary scope of application of the Directive to assure the implementation of Art 50 (2)(g) TFEU (former …” „… for derogations of the scope of application of the Directive. 1. 2. 3. Directive 2004/25/EC Art 1 …”

Index S. 1029-1055

„… . – application of rules on divisions by acquisition 156 1 f. – characteristics 155 2 f. – draft terms 156 4 …” „… from the register 34 10 ff. – transposition of EU rules in Member States pre 28a-42 9 – unique …” „… ff. Charges III 3d 1 ff. Choice-of-law rules – in the EU Member States Intro 66 ff. Circumvention …”

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

„… Lexidale, Study on the Application of the Cross-border Mergers Directive (2013) (https://publicati …” „… (1971), 123; Papadopoulos, ‘The Magnitude of EU Fundamental Freedoms: Application of the Freedom of …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. Scope of Application …”

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

„… enforce liability claims pursuant to Article 106.14 II. Scope of Application in Regard to Other Types of …” „… on behalf of the company being acquired The laws of the Member States shall at least lay down rules …” „… 106, Article 107 only requires Member States to lay down rules governing the civil liability of the …”

Tobias de Raet Article 134 Validity S. 686-688

„… 1975 provided for the appropriate application of the merger rules to “operations similar to a merger …” „… implement in their national laws, rules governing the civil liability of the independent experts responsible …” „… at the request of Germany in order to prevent a way out of co-determination after the cross-border …”

Jan P. Brosius Article 78 Redemption of subscribed capital without reduction S. 368-370

„… case of a breach of the principle laid down in Article 77.3 VI. Direct Application Article 77 is …” „… unconditional and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn …” „… provides for a minimum provision and Member States may provide for stricter rules. VI. Direct Application …”

Peter Kindler, Simon Jobst Article 28 b Online filing of documents and information for branches S. 156-158

„… Application of the rules regarding the online registration of branches (Art 28a(2)–(5)) Pursuant to Art. 28b(2 …” „… ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Exception: requirement of physical presence (Article 28b(1) sentence 2) 5 3. Application of the …” „… rules regarding the online registration of branches (Art 28a(2)–(5 …”

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

„… cancellation of the shares must be made subject to the same rules that apply to the legal holding of own shares …” „… provides for minimum requirements.15 Member States may provide for stricter rules. VII. Direct Application …” „… Article 63 is unconditional and sufficiently precise to fulfil the requirements of a direct application …”

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

„… principle of effectiveness (→ Intro Art 44 mn. 62 et seq.). VI. Direct Application Article 59 is …” „… unconditional and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn …” „… objective to make such rules on the acquisition of own shares more flexible. Pursuant to the fourth Recital …”

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

„… unconditional and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn …” „… . Direct Application Article 54 is not sufficiently precise to fulfil the requirements of a direct …” „… instrument of incorporation does not fall within the scope of the Directive. Section 3 Rules on distribution …”

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

„… or division, be it cross-border or domestic. It will, however, anyway be subject to the rules of …” „… States shall ensure that the application referred to in paragraphs 2 and 3, including the submission of …” „… . 5. In respect of compliance with the rules concerning employee participation as laid down in Article …”

Silja Maul, Larissa Furtwengler Article 17 Sanctions S. 1023-1024

„… Background The idea of a sell-out rule stems from the Nordic countries and is especially useful …” „… Nature of the Consideration Art 16 (3) refers to the application of Art 15 (3)-(5) mutatis mutandis …” „… → mn. 7 et seq.). The rules of the squeeze-out do also apply in regard to the nature of the …”

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

„… States may implement stricter rules. VII. Direct Application Article 64 is not sufficiently precise to …” „… fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 65 Additional …” „… sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). 3 …”

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

„… requirements of a direct application (→ Intro Art 44 mn. 46). Article 57 Recovery of distributions unlawfully …” „… to provide for stricter rules.8 However, this does not apply to the privileged status of shareholders …” „… fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 58 Serious loss of …”

Jan P. Brosius Article 51 Consideration other than in cash without an experts' report S. 258-261

„… VI. Direct Application Article 50 is not directly applicable. It is to the sole discretion of the …” „… provide for stricter rules. VIII. Direct Application Article 51 (1) and Article 51 (2) are unconditional …” „… and sufficiently precise to fulfil the requirements of a direct application (→ Intro Art 44 mn. 46 …”

Peter Kindler Introduction S. 1-65

„… Application and Current Legal Policy of European Company Law 74 I. Companies Subject to EU Harmonisation …” „… . . . . . . . . . . . . . . . . . . . . . . . 181 1. EU conform interpretation of national law; primacy of application of EU law …” „… Commission states the purpose of EU rules in Company Law being to – enable businesses to be set up and to …”

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

„… Section 5 Rules for the increase and reduction of capital Article 68 Decision by the general …” „… application of European law6 and compromise the directive’s objective to protect shareholders.7 Therefore, the …” „… (cf. → Art 84 mn. 5, 15). As stated in Recital 121 of the preamble of that directive, rules on …”

Jan Lieder, Martin Bialluch Article 3 f Information on implementation S. 884-885

„… scope of application of this Chapter in relation to third-country intermediaries. The Commission shall …” „… . Conflicts of interests rules applicable to institutional investors and asset managers, including Article 14 …” „… and the relevant implementing rules, and Article 23 of Directive 2014/65/EU shall also apply with …”

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

„… mutandis application of Article 64, either directly or indirectly, advance funds or make loans or provide …” „… consequences of a breach of the rules laid down in Article 66 are to be determined by the Member States.8 V …” „… . Member States may also provide for stricter rules. VII. Direct Application Article 66 (1) is …”

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

„… shall lay down detailed rules for the online formation of companies, including rules on the use of …” „… a company. As part of those rules, Member States shall ensure that such online formation may be …” „… procedures to verify the appointment of directors. 4. The rules referred to in paragraph 2 may, in particular …”

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

„… VIII. Direct Application Even though Member States may provide for stricter rules, Article 48 is …” „… unconditional and sufficiently precise to fulfil the requirements of a direct application where Member States do …” „… methods of valuation used and shall state whether the values arrived at by the application of those …”

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

„… sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 46). Article 50 …” „… accordance with its non-discretionary rules – in a way that results in a contract, in respect of the …” „… Application Article 50 is not directly applicable. It is to the sole discretion of the Member States whether …”

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

„… the adoption or application of provisions designed to encourage the participation of employees, or …” „… stricter requirements. VI. Direct Application Even though Member States may provide for stricter rules …” „… , Article 69 is unconditional and sufficiently precise to fulfil the requirements of a direct application …”

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

„… Member States may provide for stricter rules. VI. Direct Application Article 78 is unconditional and …” „… sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 79 …” „… sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64). Article 80 …”

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

„… special negotiation body, content of the participation agreement, application of the standard rules in …” „… application of two national laws.1 The law of the departure Member State will be decisive for obtaining the …” „… (Recital (18)). Subject to national rules, the draft terms of the cross-border conversion may therefore …”

Silja Maul, Larissa Furtwengler Article 13 Other rules applicable to the conduct of bids S. 1018-1019

„… for the application of the rule of reciprocity, apart from the opt-in of the Member State, the …” „… meeting of shareholders to decide whether or not the reciprocity rule will be applied on a case by case …” „… consideration (Reasons for Consideration 21 of the Directive). Article 13 Other rules applicable to the conduct …”

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

„… . The provision sets the rules for the second step of the two-step scrutiny procedure1 whereby the lead …” „… Member State authorities and the use of digital tools to submit the application for approval of the …” „… , statutory components of the company’s statutes, rules of representation, qualification of directors …”

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

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 III. Scope of Application …” „… co-determination: Can a cross-border merger trigger the application of co-determination if the laws of the Member …” „… companies and their corporate bodies.29 As a result of this option of non-application, all Member States …”

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

„… derogate from Article 69 to the extent that such derogation is necessary for the adoption or application of …” „… Application Even though Member States may provide for stricter rules, Article 69 is unconditional and …” „… sufficiently precise to fulfil the requirements of a direct application where Member States do not at least …”

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

„… increasing the subscribed capital by the capitalisation of such reserve. Article 76 (2), as an application of …” „… and not sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn …” „… of the company. Again, the provision leaves Member States great scope of discretion. Legal Scholars …”

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

„… companies from the application of the cross-border division rules. As a consequence, these limitations of …” „… Member States and entailing additional risks in terms of the circumvention of Union and national rules …” „… the scope of application lead to a somewhat difficult coexistence of cross-border divisions which can …”

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

„… 1975 provided for the appropriate application of the merger rules to “operations similar to a merger …” „… of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. National …” „… particular to prevent potential circumvention of the standards of the Merger Directive. The procedural rules …”

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

„… implementation of a cross-border conversion requires [...] the consecutive application of two national laws to …” „… concentrations.17 The reference to Article 21 of the Merger Control Regulation ensures the application of this …” „… ) specifies what is to be understood by the rules and formalities of the national laws of the Member States …”

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

„… Article 71 is sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art. 44 …” „… rules on pre-emption stipulated in Article 72 and the principle of pre-emption have a primal predecessor …” „… represents an application of the principle of equal treatment.13 However, the scope of Article 72 reaches …”

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

„… remaining assets and liabilities.2 Article 156 Application of rules on divisions by acquisition 1. Articles …” „… company being divided in proportion to their rights in the capital of that company. I. Application of …” „… 138 have been complied with in respect of all participating companies, and (ii) the shareholders of …”

Silja Maul, Larissa Furtwengler Article 18 Committee procedure S. 1024-1025

„… the entry into force of this Directive, the application of those of its provisions that require the …” „… adoption of technical rules and decisions in accordance with paragraph 2 shall be suspended. On a proposal …” „… consensus among the Member States. The European Parliament opposed a broad application of the committee …”

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

„… body, content of the participation agreement, application of the standard rules in case of no agreement …” „… company’s rules of representation, are responsible for drawing up the report. As long as management’s …” „… , telecommunications), the regulatory regime may look different which, in turn, may result in the application of a …”

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

„… follows different rules and doctrinal principles in the national laws of the Member States. It can be …” „… general default rules of representation (Art 9 para. 3, in more detail → mn. 25). II. Organs of the …” „… their own mistakes.10 The non-application of Art 9 in favour of insiders had been approved by learned …”

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

„… X. Direct Application Article 52 is not sufficiently precise to fulfil the requirements of a …” „… formation of the company as well as to any subsequent capital increase. It complements the rules laid down …” „… and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn. 64 …”

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

„… has been reached, in which case the company would be subject to the application of the standard rules …” „… protection of members, unless such rules conflict with those provided for under this 2019 Directive or with …” „… future, cross-border divisions by acquisition were to be included within the scope of application of the …”

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

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 IV. Application of the Principle to the Various Types of Cross-Border Divisions 15 1. Full …” „… applicable substantive law provisions.5 IV. Application of the Principle to the Various Types of …” „… Independent experts 1. Member States shall lay down rules governing at least the civil liability of the …”

Silja Maul, Larissa Furtwengler Article 16 The right of sell-out S. 1022-1023

„… ) refers to the application of Art 15 (3)-(5) mutatis mutandis. Hence the same distinction between …” „… mandatory and voluntary bids has to be made (compare above Art. 15→ mn. 7 et seq.). The rules of the …” „… been reached. If Member States decide on a regulation for this kind, the question of the threshold …”

Jan P. Brosius Article 83 Voting requirements for the decisions of the general meeting S. 380-382

„… stricter rules.8 VII. Direct Application Article 82 is unconditional and sufficiently precise to fulfil …” „… the requirements of a direct application (cf. → Intro Art. 44 mn. 64). Article 83 Voting requirements …” „… requirements of a direct application (cf. → Intro Art 44 mn. 64). The same does not apply to Article 83 (2 …”

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

„… Application in Regard to Other Types of Mergers The rules laid down in Article 96 also apply to mergers by …” „… merger, since Member States are required to implement rules governing the civil liability of members of …” „… those bodies pursuant to Article 106. V. Scope of Application in Regard to Other Types of Mergers …”

Jan P. Brosius Article 77 Reduction in the subscribed capital and the minimum capital S. 367-368

„… unconditionally and not sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art …” „… . Direct Application Article 77 is unconditional and sufficiently precise to fulfil the requirements of a …” „… direct application (cf. → Intro Art 44 mn. 64). Article 78 Redemption of subscribed capital without …”

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

„… statements as it was previously the case under the application of Articles 17(1)(d) and 28(1) Directive …” „… standard of full harmonisation and at the same time supports the hypothesis that the aforementioned rule of …” „… of the related party. Member States may adopt different materiality definitions for the application …”

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

„… , for instance nullity of the respective transaction.2 V. Direct Application Article 62 is …” „… unconditional and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art 44 mn …” „… Article 61 (3) provides that in case of a breach of Article 61 (2) the respective shares must be …”

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

„… harmonized rules across Member States. This may likely increase the number and complexity of practical …” „… in that context. Firstly, the 2019 Directive does not affect national rules on the validity of …” „… is not necessarily for the benefit of harmonized rules across Member States. The period within which …”

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

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 IV. Scope of Application in Regard to Other Types of Mergers …” „… to fully approximate the rules for the protection of creditors in the Member States.1 Today, the …” „… Application in Regard to Other Types of Mergers Article 99 also applies to mergers by formation of a new …”

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

„… of conduct which they apply and report on the application of that code of conduct. Where proxy …” „… disconnected from the system of the above rules in Article 3g-3 i SRD4 as it deals with proxy advisors who …” „… . 4) The vast majority of large proxy advisors are based in the US. A rule that does not cover these …”

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

„… Application Article 4 is unconditional and sufficiently precise to fulfil the requirements of a direct …” „… application (→ Foreword Art 44 mn. 64). Article 5 Authorisation for commencing business 1. Where the laws of a …” „… rules regarding the responsibility for liabilities incurred by or on behalf of the company during the …”

Tobias de Raet Article 97 Availability of documents for inspection by shareholders S. 534-540

„… conditions laid down in Article 114 are fulfilled. VI. Scope of Application in Regard to Other Types of …” „… Mergers The rules laid down in Article 96 also apply to mergers by formation of a new company (cf. Article …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. Scope of Application in Regard to Other Types of Mergers …”

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

„… necessary for the application of the rules drawn up in accordance with this Directive and in particular in …” „… authority or authorities competent to supervise bids for the purposes of the rules which they make or …” „… document and the disclosure of the bid, shall be dealt with in accordance with the rules of the Member …”

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

„… board decision will therefore be valid against third parties regardless of the rule in Art 9 para. 2 …” „… diligent examination and the right to reject a faulty application.1 Article 11 Conditions for nullity of a …” „… the rules of preventive control or the requisite legal formalities were not complied with; (ii) that …”

Alexander Schall, David Günther, Michael Lamsa Foreword to Arts 13-28 Foreword to Arts 13-28 S. 110

„… to get active in another EU country.2 The centerpiece of the rules of the Digitalisation Directive is …” „… formation to companies according to Annex IIA. This allows for the exclusion of the application to public …” „… newly introduced by the “Digitalisation Directive” 2019/1151. Together with Directive (EU) 2019/2121 of …”

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

„… and Michael Lamsa 143 2 3 4 1 1 Section 2 Registration and disclosure rules applicable to branches of …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Scope of application (Arts 29, 36 and 42 …” „… for an adaption of the general disclosure rules contained in Chapter III Section 1 of the Company Law …”

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

„… Application in Regard to Other Types of Mergers Article 99 also applies to mergers by formation of a new …” „… companies Without prejudice to the rules governing the collective exercise of their rights, Article 99 shall …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. Scope of Application in Regard to Other Types of Mergers …”

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

„… the protection of creditors are without prejudice to the application of the national laws of the …” „… disclosure of said solvency declaration. The purpose of such a declaration is to inform the …” „… creditors about the financial status of the merging companies, which might include indications if they have …”

Silja Maul, Larissa Furtwengler Article 6 Information concerning bids S. 999-1003

„… the rights which might be removed as a result of the breakthrough rule laid down in Article 11(4 …” „… company’s securities as a result of the bid and the competent courts. 4. The Commission shall adopt rules …” „… for the application of paragraph 3 in accordance with the procedure referred to in Article 18(2). 5 …”

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

„… ensure that the application referred to in paragraphs 2 and 3, including the submission of any …” „… I. 5. In respect of compliance with the rules concerning employee participation as laid down in …” „… the legal form of the recipient company must be chosen in such a way that the interim regime can be …”

Jan P. Brosius Article 85 Equal treatment of all shareholders who are in the same position S. 387-390

„… of equal treatment, as, inter alia, laid down in Article 85. VIII. Direct Application Article 84 (3 …” „… ) is unconditional and sufficiently precise to fulfil the requirements of a direct application (cf …” „… purpose confirms that the European legislature did not intend the rule of equal treatment of shareholders …”

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

„… interpretations in the application of national law3 and solidification of a double-track approach to (stock …” „… application of this Directive or the achievement of its objectives, and should, in any event, comply with the …” „… Regarding Shareholder Identity Principal rule In terms of its material content, the claim is addressed to …”

Jan P. Brosius Article 82 Conditions for redemption of shares S. 378-380

„… requirements. Member States are allowed to provide for stricter rules.8 VII. Direct Application Article 82 is …” „… unconditional and sufficiently precise to fulfil the requirements of a direct application (cf. → Intro Art. 44 …” „… Article 82 Conditions for redemption of shares Where the laws of a Member State authorise companies …”

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

„… fulfil the requirements of a direct application (→ Foreword Art 44 mn. 64). Article 6 Multiple-member …” „… and sufficiently precise to fulfil the requirements of a direct application (cf. → Foreword Art 44 mn …” „… all. At the same time the exception allows the persons acting on behalf of the company to make any …”

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

„… to get active in another EU country.2 The centerpiece of the rules of the Digitalisation Directive is …” „… formation to companies according to Annex IIA. This allows for the exclusion of the application to public …” „… newly introduced by the “Digitalisation Directive” 2019/1151. Together with Directive (EU) 2019/2121 of …”

Jan P. Brosius Article 71 Increase in capital not fully subscribed S. 345-346

„… precise to fulfil the requirements of a direct application (cf. → Intro Art. 44 mn. 64). Article 72 …” „… distributed until three years after publication of the annual accounts of the recipient company for …” „… subparagraph of Article 70 (2) does not apply in the case of use of the resolution tools, powers and mechanisms …”

Jan Lieder, Martin Bialluch Article 15 Transposition S. 974-976

„… would also be feasible. The Commission shall be notified of any implemented rules and of implemented …” „… optional provision. Thus, the rule of Article 14 b SRD applies to the extent that the adopted provisions …” „… accompanying rules to simplify its application.12 The provision is sufficiently precise if it unambiguously …”

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

„… referred to in paragraphs 2 and 3, Member States may adopt rules allowing a general meeting of shareholders …” „… options model and the reciprocity rule of Art 12, will depend on whether or nor not Member States reserve …” „… application of the duty of neutrality. Paragraph 3 addresses cases in which the decisions have not yet been …”

Jan P. Brosius Article 74 Reduction in the subscribed capital in case of several classes of shares S. 360-362

„… Article 68 (3), an application of the principle of equal treatment of shareholders.2 This principle does …” „… duction requires the amendment of the company’s statutes. Therefore, the Commission considered it …” „… necessary to provide for the requirement of a qualified majority.9 In case there are several classes of …”

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

„… the cross-border exercise of shareholder rights lies in the rules on participation in general meetings …” „… electronic participation in points (a)–(c). However, the rule leaves room for discussion. First of all, the …” „… general principle of permissibility of “any form” of participation from the Directive to a general rule in …”

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

„… satisfaction or a court has decided that their application should not be acceded to.12 VII. Waiver of Payment …” „… provide for stricter rules as well.16 Article 76 Derogation from safeguards for creditors in case of …” „… necessary for the establishment of the preventive restructuring frameworks provided for in …”

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

„… may exclude single-member companies from the application of this Article. I. Expert Examination of the …” „… the purposes of the application and appointment procedure.9 This choice is important, because it is …” „… left to the Member States to specify the details of the application and appointment of the experts, i.e …”

Jan Lieder, Martin Bialluch Article 3 Further national measures S. 869-870

„… interpretations in the application of national law3 and solidification of a double-track approach to (stock …” „… application of this Directive or the achievement of its objectives, and should, in any event, comply with the …” „… utilities, and departments and agencies of a government that does not control, jointly control or …”

Klaus Bader, Andreas Börner Article 145 Protection of employees’ rights S. 710-711

„… division have so agreed. 2. Member States may permit the non-application of Article 141 and points (c) and …” „… holders of other securities conferring the right to vote of each of the companies involved in the …” „… (d) of Article 143(1) if all the shareholders and the holders of other securities conferring the …”

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

„… States shall ensure that they have rules on disqualification of directors. Those rules shall include …” „… 13 j para. 4 refers to Article 13 g para. 2 to 5 for application in this case. As the proposal of the …” „… the applicant. IV. Language of the Template (para. 3) There is no doubt that the template can always …”

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

„… insolvency law is determined by the domestic conflict-of-law rules of the Member State where the branch is …” „… activities of the branch be drawn up and disclosed; according to Art 38 para. 2 the rules contained in …” „… registration number of the company in that register). The scope of application covers branches of companies …”

Tobias de Raet Article 98 Protection of employees’ rights S. 540-541

„… only important for employees but also for the shareholders. II. Scope of Application in Regard to …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 IV. Scope of Application in Regard to Other Types of Mergers …” „… to fully approximate the rules for the protection of creditors in the Member States.1 Today, the …”

Jan P. Brosius Article 84 Derogation from certain requirements S. 382-387

„… requirements of a direct application (cf. → Intro Art 44 mn. 64). The same does not apply to Article 83 (2 …” „… application of provisions designed to encourage the participation of employees, or other groups of persons …” „… respective derogations are necessary for the adoption or application of such provisions. There is a …”

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

„… application referred to in paragraphs 2 and 3, including the submission of any information and documents, may …” „… Directive implemented a more detailed framework as to the application and issuance of the pre-merger …” „… authority or authorities competent to scrutinise the legality of cross-border mergers as regards those parts …”

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

„… . Article 97, as well as Articles 106 and 107, the application of which is excluded pursuant to sentence 3 …” „… general meetings of the company or companies being acquired or by a person who holds directly or …” „… acquiring company does not allot any shares under the merger: — points (b), (c), (e) and (m) of Article 122 …”

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

„… Articles in the SRD, it begins with a definition of its own scope of application. Apart from this …” „… However, Member States are permitted under Article 3 SRD to provide for certain rules on chains of …” „… the possibility of postal voting in their transposition, even under the narrowest interpretation of …”

Silja Maul, Larissa Furtwengler Article 10 Information on companies as referred to in Article 1(1) S. 1008-1010

„… within the meaning of Directive 2001/34/EC; (h) the rules governing the appointment and replacement of …” „… directive, other than Art 1 (1) defining the scope of application. It is however related to Directive 78/660 …” „… rules governing the appointment and replacement of board members and the amendment of the articles of …”

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

„… in two ways. They may include derogations in their national rules to take account of circumstances …” „… ) the authority to waive such national rules to take account of such circumstances. The latter is …” „… the purposes of paragraph 1 and the method of its calculation shall be determined by the rules of the …”

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

„… transferring company. III. Scope of Application in Regard to Other Types of Mergers Article 104 also applies …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 II. Scope of Application in Regard to Other Types of Mergers …” „… de Raet 10 11 12 13 14 15 II. Scope of Application in Regard to Other Types of Mergers Article 105 …”

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

„… Article 61 Derogation from rules on acquisition of own shares 1. Member States may decide not to …” „… et seqq. 6 See also OJ No C 48, 24.04.1970, p. 13. Art 61 Derogation from rules on acquisition of …” „… para. 141. Art 61 Derogation from rules on acquisition of own shares 300 Jan P. Brosius 10 11 12 13 …”

Klaus Bader, Andreas Börner Article 160 k Employee information and consultation S. 784-786

„… introduction of the limitation is at the discretion of the Member State – in a cross-border context such …” „… limitation is mandatory. The maximum amount of the joint and several liability is limited to the value of the …” „… income which could reasonably be expected as being generated by any of the companies involved, and has …”

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

„… division 1. The laws of Member States may lay down nullity rules for divisions in accordance with the …” „… division as null and void. The court may rule the division null, among others, if the notarial deed of …” „… 143(2), (3) and (4) and Article 144 shall apply. I. Scope of Application Member States should be able …”

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

„… . Scope of Application in Regard to Other Types of Mergers Pursuant to Article 109, Article 91 applies to …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VII. Scope of Application in Regard to other Types of Mergers …” „… general rule on the publication of the draft terms of merger. Paragraphs two to six were adopted under the …”

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

„… ensuring compliance with the rules on legal capacity and on the authority of applicants to represent a …” „… Article 13 a Definitions For the purposes of this Chapter: (1) ‘electronic identification means …” „… ’ means an electronic identification means as defined in point (2) of Article 3 of Regulation (EU) No …”

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

„… single-member companies from the application of this Article. I. Scope of the Examination of the Draft Terms by …” „… some flexibility. Article 160 t requires Member States to enact rules ensuring the independence of the …” „… divided must adopt its own rules as to the legal consequences of errors in content and the like.8 VII …”

Jan Lieder, Martin Bialluch Article 16 Entry into force S. 976

„… the statute or whether the statute provides for the adoption of accompanying rules to simplify its …” „… enforceable against them after the deadline has expired (estoppel).9 The content of the relevant provision …” „… without reservation or condition and does not require further action by the institutions of the Member …”

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

„… accordance with Article 160 g. 4. Paragraphs 1, 2 and 3 shall be without prejudice to the application of the …” „… . 3 Bech-Bruun, Study on the application of the cross-border mergers directive, Directorate for the …” „… the jurisdiction of that Member State. The provision ensures that applicable law and competent …”

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

„… Merger Control Regulation ensures the application of this regulation to national law in cases of …” „… )). Specification of provisions and formalities Article 121(2) specifies what is to be understood by the rules and …” „… account of the valuation methods applied in the Union: Bech-Bruun and Lexidale, Study on the Application …”

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

„… application covers branches of companies from another Member State. As far as branches of companies from third …” „… website must indicate the number of the branch in that register. Section 3 Disclosure rules applicable to …” „… As Art 86 b para. 2 of the Directive makes clear, the company concerned retains its legal …”

Klaus Bader, Andreas Börner Article 144 Simplified formalities S. 709-710

„… terms of division must be provided at least one month before the date of the general meeting, so that …” „… the required contents and means of communication of such information only establish minimum standards …” „… and correspond to a large extent to those of Article 97 for mergers. Every shareholder has to be given …”

Klaus Bader, Andreas Börner Article 154 Exemption from the requirement of approval by the general meeting of the company being divided S. 723-724

„… first paragraph, Article 143(2), (3) and (4) and Article 144 shall apply. I. Scope of Application …” „… II. Examples of Nullity under National Law Germany, making use of its margin of interpretation in …” „… a permissible manner, has gone beyond the minimum standard of the Directive and generally ruled out …”

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

„… referred to in Article 86 h. 3. Each Member State shall ensure that any application for the purposes of …” „… . The provision sets the rules for the second step of the two-step scrutiny procedure1 whereby the lead …” „… template of the pre-conversion certificate which is applicable to all Member States would …”

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

„… ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 V. Scope of Application in Regard to Other Types of Mergers . . . . . . . . . . . . . . . . . . 18 …” „… implementing the merger, since Member States are required to implement rules governing the civil liability of …” „… members of those bodies pursuant to Article 106. V. Scope of Application in Regard to Other Types of …”

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

„… collected for purposes of issuing the pre-division certificate. This newly introduced rule prevents a …” „… Article 160 o Scrutiny of the legality of the cross-border division 1. Member States shall …” „… designate the court, notary or other authority competent to scrutinise the legality of the cross-border …”

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

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 III. Scope of Application in Regard to Other Types of Mergers …” „… States may require to be included in the draft terms of merger. As a general rule, content must not lead …” „… They do, therefore, not apply to auditors.27 III. Scope of Application in Regard to Other Types of …”

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

„… guarantee the application and effectiveness of the provisions laid down in such directive. While it is …” „… within the discretion of Member States to choose a suitable method to do so, they have to ensure to …” „… provide for procedural and substantive regulation, which, as a matter of fact, may not be less effective …”

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

„… shareholders. But instead of imposing strict rules on how to ensure the transparency of the decision making …” „… parties are guaranteed by the corresponding application of the Directive with regard to single-member …” „… . 223-1 Code de commerce states that the sole shareholder shall exercise the powers of the meeting of …”

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

„… classification of all assets, the Directive in its Article 137(3) provides for a set of fallback rules governing …” „… requested with application of Article 2:334ee1 Dutch Civil Code. Article 138 Publication of the draft terms …” „… to minority shareholders. Article 137 Draft terms of division 1. The administrative or management …”

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

„… conversion requires [...] the consecutive application of two national laws to that legal operation.”; Frenzel …” „… error.27 However, the 2019 Directive provides for the non-application of Article 124 only in the case of …” „… of the cross-border merger or the information referred to in Article 123(3) also be published in the …”

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

„… requirements of a direct application (cf. → Foreword Art 44 mn. 64). The same does not apply to Article 6 (2 …” „… second paragraph Member States are not precluded from permitting the company to be wound up by order of …” „… need to be able to set a grace period of at least 6 months,10 the Directive does not stipulate a fixed …”

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

„… within the scope of application of the 2019 Directive, it would have to be further regulated that the …” „… terms of the cross-border division including the instrument of constitution and the statutes of the …” „… recipient company, will typically be prepared in a bi-lingual version.5 Content of the approval decision The …”

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