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Shortcomings In The Eu Merger Directive
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Book Synopsis Shortcomings in the EU Merger Directive by : Frederik Boulogne
Download or read book Shortcomings in the EU Merger Directive written by Frederik Boulogne and published by Kluwer Law International B.V.. This book was released on 2016-03-23 with total page 434 pages. Available in PDF, EPUB and Kindle. Book excerpt: The European Union (EU) Merger Directive removes certain tax disadvantages encountered by companies and their shareholders in the course of a restructuring operation. However, in spite of amendments and European Court of Justice's (ECJ) interpretations of its provisions, various shortcomings remain. This thoroughgoing analysis, broader and deeper than any prior work on the subject, addresses all the Directive's subtopics methodically, following the paragraphs of Articles 1-15 in their logical succession. The author analyses the points in which the Merger Directive falls short of attaining its stated objective, and he also examines how these shortcomings could be scaled. To do so, he tests the Merger Directive against its own objective, primary EU law (the fundamental freedoms and the unwritten general principles of EU law) and non-discrimination provisions in relevant treaties. Each of the following questions is addressed and responded to in depth: – Which entities have access to the Merger Directive and which entities should have access to it? – Which operations are covered by the Merger Directive and which operations should be covered? – Which tax disadvantages to cross-border restructuring operations does the Merger Directive aim to remove, which tax disadvantages have been actually removed, which tax disadvantages remain, and how should the Merger Directive be amended to remove the remaining tax disadvantages? – How tax avoidance should be combated under Article 15(1)(a) of the Merger Directive, which possible types of tax avoidance can be identi¬fied, and how the Merger Directive should be amended? – Which cases of double taxation does a taxpayer engaging in cross-border restructuring operations potentially encounter, and how they can be taken away by the Merger Directive? The key shortcomings that are identifi¬ed are: the Merger Directive’s objective is not stated precisely; minimum harmonisation does not lead to a common tax system; exhaustive lists are used as legislative technique; the Merger Directive does not add much to the outcomes reached through negative harmonisation; and the de¬finitions of qualifying operations are not fully aligned with corporate law. Chapter 6 contains a deeply informed and viable proposal for the amendment of the Merger Directive. This is the fi¬rst treatment not only to evaluate the Directive's effi¬cacy in detail but also to offer real solutions to its shortcomings. It will be welcomed by policymakers, judges, practitioners and academics, and the recommendations it contains are sure to affect ongoing amendments and jurisprudence on the Merger Directive.
Book Synopsis Shortcomings in the European Union Merger Directive : Lessons for Future Harmonization by : G.F. Boulogne
Download or read book Shortcomings in the European Union Merger Directive : Lessons for Future Harmonization written by G.F. Boulogne and published by . This book was released on 2016 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: The European Union has recently demonstrated with the Anti-Tax Avoidance Directive (ATAD) that it can deliver harmonized measures in areas where controversies exist. With even further-reaching measures, such as the common consolidated corporate tax base (CCCTB) and the Financial Transaction Tax (FTT) (re)gaining momentum it is sensible to learn from the experiences with previous harmonization measures. One of them is the EU Merger Directive. This article addresses five broad shortcomings that have been identified in this directive and draws cionclusions from them. The lessons to be learned from the EU Merger Directive - and those would apply to any future harmonization measure - are, amongst others, that the objective of the measure has to be defined razor sharp, that minimum harmonization measures may still lead to distortions among the Member States, and that it should be crystal clear on which foundations certain demarcations are made.
Book Synopsis The EU Merger Regulation by : Alistair Lindsay
Download or read book The EU Merger Regulation written by Alistair Lindsay and published by Sweet & Maxwell. This book was released on 2012 with total page 849 pages. Available in PDF, EPUB and Kindle. Book excerpt: This is the 4th edition of The EC Merger Regulation - a detailed guide to the method of merger control in the European Union. Fully revised for 2012, this comprehensive text describes how the European Commission determines approval of a notified merger, thereby providing information and techniques to complete merger deals successfully for companies operating in the European Union
Book Synopsis European Merger Control by : Catalin Stefan Rusu
Download or read book European Merger Control written by Catalin Stefan Rusu and published by Kluwer Law International B.V.. This book was released on 2010-01-01 with total page 306 pages. Available in PDF, EPUB and Kindle. Book excerpt: Twenty years of experience have inevitably brought to light challenges and tensions in the enforcement of the European merger control system. Some of these challenges have been faced, some have been solved and some remain latent. This very valuable study starts from the proposition that the EU has never fully acknowledged those fundamental challenges which relate to the rationale behind merger control in Europe. The author shows how the Commission's focus on adapting the rules of merger control to the economic realities of the future business environment, although designed with a view to facilitating European integration, has compromised attainment of legal certainty, transparency and welfare enhancement. In its detailed evaluation of the 'future market structure prediction process' embedded in European merger control policy, this book approaches two rock-bottom, far-reaching questions: In what ways does merger control promote consumer and societal welfare? Is the Commission able to correctly predict the outcome of any given concentration transaction? These considerations take the reader through a deep and searching analysis that calls into question the very credibility and transparency of the system, leading to alternatives which promise a new clarity of purpose and procedure. The author describes how these recommendations can be integrated into the functioning framework of the European project. Taken fully into account along the way is a wide spectrum of relevant source material, including the following: applicable articles and chapters of the founding and subsequent European Treaties; secondary European legislation concerning competition and merger activity; domestic competition laws; guidelines, notices and action plans; competition law reviews, statements of intentions; draft legislative attempts; speeches on the enactment and purpose of merger control; Member States' views concerning European merger control as expressed during Council negotiations; officially available concentration-related statistics; and a wide-ranging literature review covering both the legal and economic sides of merger control. Throughout, the author substantiates theoretical assertions with case law examples, clearly exposing doctrines arising from such cases as Continental Can, Phillip Morris/Rothmans and the Airtours, Schneider and Tetra Laval trilogy. A unique feature of the analysis draws on the author's personal experience while working for a Brussels competition law firm. This book is a remarkable compound of academic guide to the roots and rationales of the European Merger Control System, practical guide to the day-to-day intricacies of merger control enforcement, and 'raw' guide for decision makers and merger control law enforcers. It will be of immense value in all three contexts.
Book Synopsis Cross-Border Mergers within the EU by : Harm Van den Broek
Download or read book Cross-Border Mergers within the EU written by Harm Van den Broek and published by Kluwer Law International B.V.. This book was released on 2011-11-25 with total page 816 pages. Available in PDF, EPUB and Kindle. Book excerpt: As a result of the Regulation on the European Company and the Tenth Council Directive, all Member States are obliged to finally implement the merger arrangements of the 1990 Fiscal Merger Directive, forcefully raising the question of the tax consequences of cross-border mergers. This book is the first to focus in such an extended way on the meaning of the 1990 Directive’s tax provisions in this context. With unique and valuable insights drawn from legislative history documents never examined before, its detailed commentary leads to sound and practical recommendations on cross-border mergers within the EU from a tax law perspective. This book also examines to what extent taxation as a result of mergers is in line with the freedom of establishment and the free movement of capital. Clearly analysing the dangers of advance taxation, double taxation, double non taxation, and additional tax claims as a result of a merger, the book deals with such core elements as the following: the aims of cross-border merger relief schemes; the aims of cross-border merger relief schemes; transfer of losses; exit taxation; taxation of dividend withholding tax; employee participation rights; tax standing of creditors of a transferring company; and taxation of foreign shareholders. With its new insights on tax aspects of mergers within the European Union, this book will be of special value to merging companies and their shareholders, to tax administrations and courts, and to legislators who must properly implement the Merger Directive.
Book Synopsis Does EU Merger Control Discriminate against Small Market Companies? by : Mika Oinonen
Download or read book Does EU Merger Control Discriminate against Small Market Companies? written by Mika Oinonen and published by Kluwer Law International B.V.. This book was released on 2010-07-20 with total page 448 pages. Available in PDF, EPUB and Kindle. Book excerpt: Although the question posed by the title of this book has generated considerable debate, the essential issue remains open and largely blurred. While some believe that there is no so-called ‘small market problem’, others discern discrimination against small market companies (i.e., companies with a strong position in their home markets but a modest position in the European and global markets) and a consequent need for changes in competition law. The author of this enormously helpful work here sets the stage for meaningful discussion by analysing the EC Merger Regulation’s objectives, economic foundations, and application practice to present a reasoned view of the issues that can be considered relevant for such a discussion. Considering their effect on the ’small market problem’, the author scrutinizes such factors as the following: the Commission’s methodology for delineating relevant markets in merger assessments; unnecessary prohibition caused by overestimation of the market power of small market mergers; erroneous approval of cases that should actually be prohibited; impact of the so-called ‘Harvard’ and ‘Chicago’ schools of competition theory and their key policy implications; process-related alternative views of competition and new synthesizing approaches; relevant criteria for a proper analysis of market power; concentration measures and market shares; barriers to entry; price and profitability analyses; and product definition v. geographic definition of markets. In a final chapter, the author presents some tentative conclusions, normative in nature, concerning the problem and the relevant issues relating to it. As the first in-depth analysis of the issues that are actually involved – with its particular diagnosis of the assessment of market power in considering the relevant issues for the problem – this study brings into salience the terms of the debate on the ‘problem’, and thus takes a giant step forward towards defining what needs to be done. Competition lawyers, policymakers, and academics in Europe and elsewhere will find the discussion of great value.
Book Synopsis Abuse under the Merger Directive - A different approach to the concept of 'valid comercial reasons' by : Dinis Tracana
Download or read book Abuse under the Merger Directive - A different approach to the concept of 'valid comercial reasons' written by Dinis Tracana and published by Leya. This book was released on 2016-10-01 with total page 247 pages. Available in PDF, EPUB and Kindle. Book excerpt: This thesis, entitled "Abuse under the Merger Directive - A different approach to the concept of `valid commercial reasons'", deals with the issue of tax avoidance within the scope of the Merger Directive, where the Author attempts to determine the concept of `abuse' in the context of EU cross-border restructuring transactions and deal with some practical issues arising from the application of the Merger Directive's anti-abuse provision. In order to reach the conclusions sought by the Author, a first analysis regarding the importance of `abuse' in the tax field and the financial, social and legislative consequences of these conducts driven by tax avoidance or tax evasion purposes will be undertaken. Terminological issues concerning the meaning of the concepts of tax mitigation, 'tax evasion', 'tax fraud' and 'tax avoidance' and limitations to the application of domestic anti-abuse previsions will also be addressed. This study then analyses the requirements for the application of the Merger Directive and the underlying purpose for the tax deferral system, followed by a critical review of the ECJ's case-law on the Merger Directive's anti-abuse rule. The Author then determines the scope of the said rule, through the establishment of general criteria for the finding of `valid commercial reasons', as well as criteria for the application of presumptions of abuse. Finally, this thesis approaches several practical issues arising from the application of article 15 (1) (a) of the Merger Directive, namely whether Member-States are entitled to partially apply the tax deferral system, if there is a connection between qualifying transactions and the maintenance of the holding period for the purposes of the Parent- Subsidiary Directive, whether Member-States are also entitled to apply irrebuttable presumptions of 'abuse' and what may be the consequences for the concept of `abuse' deriving from the last recommendations of the Commission. Key words: Merger Directive; tax avoidance; abuse; restructurings; reorganizations.
Book Synopsis Merger Control in the EU and Turkey by : Fevzi Toksoy
Download or read book Merger Control in the EU and Turkey written by Fevzi Toksoy and published by Kluwer Law International B.V.. This book was released on 2022-05-11 with total page 264 pages. Available in PDF, EPUB and Kindle. Book excerpt: As a country on the way to integration with the European Union (EU), Turkey has been following EU principles in establishing and improving its merger control regime, as well as overall competition law, keeping pace with changes in relevant EU legislation and case law. This book presents, for the first time, a description and analysis of the relationship between the EU and Turkish merger control law and practice. The second edition of the book considers the legislative changes that occurred in 2020-2021, including the reform of the Turkish Competition Law which introduced the significant impediment to effective competition (SIEC) test into the Turkish concentration control. The authors—all three, both practicing lawyers and academicians in Turkey—focus on comparing substantive, procedural and jurisdictional issues and draw parallels on their regulation in the two jurisdictions. These matters include the following: determining whether a transaction shall be regarded as a notifiable merger, hence be subject to control; financial thresholds used for allocating jurisdictions; extraterritoriality of merger control; relationship between the SIEC test and the dominance test; determination of the relevant market; techniques used for assessment of horizontal and non-horizontal mergers; notification requirements; procedural duties of competition authorities in relation to remedies; third-party rights; gun-jumping fines and other sanctions for failure to comply with merger control requirements; and peculiarities of assessment of mergers in the Big Data world. Each chapter provides an overview of the respective issues in the EU and Turkey, projecting a clear understanding of the main similarities and differences in the two regimes. A notable feature is an in-depth analysis of applicable case law concerning each issue, with most of the Turkish decisions available in English for the first time. The book’s comparative approach will prove to be of great value. With its clear answers to questions about what transactions are subject to merger control, what criteria are used in assessing those transactions, and the main issues that a foreign company should be aware of while merging with another foreign company with effect in Turkey and/or EU, the book will be of immeasurable value for lawyers and their business clients dealing with multijurisdictional merger cases. Interested academics and policymakers will also find much here to attract their attention.
Book Synopsis The European Commission's Jurisdiction to Scrutinise Mergers by : Morten Broberg
Download or read book The European Commission's Jurisdiction to Scrutinise Mergers written by Morten Broberg and published by Springer. This book was released on 1998-04-15 with total page 420 pages. Available in PDF, EPUB and Kindle. Book excerpt: No major business or law firm can afford to disregard the European Commission's power in the control of mergers. Since the Council of Ministers adopted the EC Merger Regulation in 1989, The power of the European Commission has increased steadily. The scope of the Merger Regulation now occupies a central role in many mergers taking place both inside and outside the European Community. To come within the scope of merger regulation and thus within the Commission's jurisdiction, a merger must possess a `community dimension'. Despite the careful definition of this term in the Merger Regulation itself, The concept has created problems in many cases. The European Commission's Jurisdiction to Scrutinise Mergers offers a comprehensive, up-to-date analysis of all aspects of the community dimension concept. The most thorough examination of the Commission's jurisdiction to examine mergers under the EC Merger Regulation, The European Commission's Jurisdiction to Scrutinise Mergers serves as a valuable guide for businesses, their legal advisors, and competition law enforcers in both the Commission And The Member States.
Book Synopsis Survey of the Implementation of Council Directive 90 by :
Download or read book Survey of the Implementation of Council Directive 90 written by and published by . This book was released on 2009 with total page 341 pages. Available in PDF, EPUB and Kindle. Book excerpt: This study carried out by Ernst & Young provides a comprehensive overview of the implementation of the Merger Directive (Council Directive 90/434/EEC as amended) in the 27 EU Member States. The purpose of the survey is to enable the European Commission to assess the need for further EU-wide action in this area. The main finding of the survey is that most Member States have correctly transposed the Tax Merger Directive, but it has been under-utilised due to the fact that the corporate law allowing cross-border mergers has not been in place in many countries up to recently. The survey is based on an analysis of the Merger Directive article by article for each of the Member States. It follows a detailed task description agreed with the European Commission by raising several issues under each of the articles. The survey has been performed by local Experts of the Ernst & Young EU Competence Group of the 27 Member States during the period from November 2007 to August 2008 and reflects the current stand of local tax legislation in each of the Member States as of 31 January 2008.
Book Synopsis EU Merger Control by : Ioannis Kokkoris
Download or read book EU Merger Control written by Ioannis Kokkoris and published by OUP Oxford. This book was released on 2014-01 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Economic issues play a pivotal role in competition enforcement. Integrating economic and legal analysis throughout, this work provides expert coverage of both the substantive and procedural law relating to merger control in the EU, considering EU and national case law. The key substantive and procedural issues in the US are also considered.
Book Synopsis Time and Tax: Issues in International, EU, and Constitutional Law by : Werner Haslehner
Download or read book Time and Tax: Issues in International, EU, and Constitutional Law written by Werner Haslehner and published by Kluwer Law International B.V.. This book was released on 2018-12-20 with total page 328 pages. Available in PDF, EPUB and Kindle. Book excerpt: Time is a crucial dimension in the application of any law. In tax law, however, where an environment characterized by rapid change on the national, European, and international levels complicates the provision of accurate legal advice, timing is particularly sensitive. This book is the first to analyse the relationship between time and three key areas of tax: treaties, EU law, and constitutional law issues, such as legal certainty and individual rights. Among the numerous timing issues arising out of applying tax rules, the book addresses the following: – time limits within which relief must be requested; – statutes of limitation for claiming a tax refund; – transitional issues relating to changes in tax treaties; – attribution of profits and expenses to a moving or closed-down business; – effect of tax-related CJEU decisions and EU directives; – compliance of exit tax regimes with free movement; – limits of retroactivity under principles protected by the EU Charter and the ECHR; and – conflict between efficiency of taxation and individual rights. Derived from a recent conference organized by the prestigious ATOZ Chair for European and International Taxation at the University of Luxembourg, the book brings together contributions from leading tax experts from various areas of tax practice, academia, and the judiciary. Among other issues, the book notably expands on how economic theory can inform a constitutional analysis of the timing of taxation. There is no other work that concentrates so usefully on the difficulties associated with applying tax rules – whether arising from treaties, jurisprudence, or policy – to changing circumstances over time. This book will quickly prove itself to be an indispensable resource for European tax lawyers, policymakers, company counsels, and academics.
Book Synopsis Cross-Border Mergers by : Thomas Papadopoulos
Download or read book Cross-Border Mergers written by Thomas Papadopoulos and published by Springer Nature. This book was released on 2019-09-28 with total page 511 pages. Available in PDF, EPUB and Kindle. Book excerpt: This edited volume focuses on specific, crucially important structural measures that foster corporate change, namely cross-border mergers. Such cross-border transactions play a key role in business reality, economic theory and corporate, financial and capital markets law. Since the adoption of the Cross-border Mergers Directive, these mergers have been regulated by specific legal provisions in EU member states. This book analyzes various aspects of the directive, closely examining this harmonized area of EU company law and critically evaluating cross-border mergers as a method of corporate restructuring in order to gain insights into their fundamental mechanisms. It comprehensively discusses the practicalities of EU harmonization of cross-border mergers, linking it to corporate restructuring in general, while also taking the transposition of the directive into account. Exploring specific angles of the Cross-border Mergers Directive in the light of European and national company law, the book is divided into three sections: the first section focuses on EU and comparative aspects of the Cross-border Mergers Directive, while the second examines the interaction of the directive with other areas of law (capital markets law, competition law, employment law, tax law, civil procedure). Lastly, the third section describes the various member states’ experiences of implementing the Cross-border Mergers Directive.
Book Synopsis Cross-Border Mergers in Europe by : Dirk Van Gerven
Download or read book Cross-Border Mergers in Europe written by Dirk Van Gerven and published by Cambridge University Press. This book was released on 2010-03-04 with total page 370 pages. Available in PDF, EPUB and Kindle. Book excerpt: This discussion of the Cross-Border Merger Directive and its implementing legislation in each Member State of the European Union and the European Economic Area provides companies and their advisors with useful insight into the legal framework applicable to, and the tax treatment of, cross-border mergers throughout the European Economic Area. Analysis of the Community rules laid down in the Cross-Border Merger Directive and the Community rules on the tax treatment of cross-border mergers is complemented by chapters on the implementing legislation in each Member State, prepared in accordance with a common format and contributed by a practitioner from each state. Annexes contain the Cross-Border Merger Directive (Annex I), the Parent-Subsidiary Directive (Annex II) and a list of the implementing legislation in each Member State (Annex III).
Book Synopsis EU Merger Control by : Ioannis Kokkoris
Download or read book EU Merger Control written by Ioannis Kokkoris and published by . This book was released on 2014 with total page 628 pages. Available in PDF, EPUB and Kindle. Book excerpt: Economic issues play a pivotal role in competition enforcement. Integrating economic and legal analysis throughout, this work provides expert coverage of both the substantive and procedural law relating to merger control in the EU, considering EU and national case law. The key substantive and procedural issues in the US are also considered.
Book Synopsis Cross-border Transfers of Undertakings by : Kirsten Henckel
Download or read book Cross-border Transfers of Undertakings written by Kirsten Henckel and published by Kluwer Law International. This book was released on 2017 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: European Monographs Volume 103 Cross-Border Transfers of Undertakings: A European Perspective discusses the issue of cross-border transfers of undertakings from a European perspective and offers new and different solutions to issues of conflicting laws. Globalization and market integration have shaped the economic climate in such a way as to give rise to a considerable increase in cross-border mergers, acquisitions and corporate restructurings. However, the primary European Union (EU) legislation in this area - the Acquired Rights Directive - brings about only partial and minimum harmonization, giving rise to differences in the employee protective regime across the EU Member States. This book, the first full analysis of the EU-level private international law implications of the subject, masterfully addresses the plethora of questions that arise and presents well-considered recommendations towards the introduction of a new and uniform conflict of laws path for transfers of undertakings throughout the EU. What's in this book: With a methodology that combines comparative, 'black letter', legal historical and empirical approaches, the author addresses such issues and topics as the following: determination of applicable law both upon and after transfers; jurisdictional issues; the main provisions of the Acquired Rights Directive and their content; the main differences existing among the relevant laws of the Member States; special characteristics of the maritime sector and seagoing workers; and cross-border implications of Brexit. This book critically evaluates the existing rules on international jurisdiction and the conflict of laws relating to cross-border transfers of undertakings, clearly exposing the regime's merits and demerits. How this will help you: This book provides a comprehensive study of existing rules on jurisdiction and applicable laws to a cross-border transfer of undertaking. This book helps counsel representing any actor involved in a cross-border merger, acquisition or business restructuring - transferor, transferee or affected employees - gain a clear understanding of their legal position both before and after the transfer. Thus, this book serves as a useful resource for policymakers, legislators and interested academics by helping them to solve issues of conflicting laws and international jurisdiction relating to transfers of undertakings.
Book Synopsis Abuse Under the Merger Directive by : Dinis Tracana
Download or read book Abuse Under the Merger Directive written by Dinis Tracana and published by . This book was released on 2018 with total page 243 pages. Available in PDF, EPUB and Kindle. Book excerpt: Présentation de l'éditeur : "This thesis, entitled "Abuse under the Merger Directive - A different approach to the concept of 'valid commercial reasons'", deals with the issue of tax avoidance within the scope of the Merger Directive, where the Author attempts to determine the concept of 'abuse' in the context of EU cross-border restructuring transactions and deal with some practical issues arising from the application of the Merger Directive's anti-abuse provision. In order to reach the conclusions sought by the Author, a first analysis regarding the importance of 'abuse' in the tax field and the financial, social and legislative consequences of these conducts driven by tax avoidance or tax evasion purposes will be undertaken. Terminological issues concerning the meaning of the concepts of tax mitigation, ́tax evasion', ́tax fraud' and ́tax avoidance' and limitations to the application of domestic anti-abuse previsions will also be addressed. This study then analyses the requirements for the application of the Merger Directive and the underlying purpose for the tax deferral system, followed by a critical review of the ECJ's case-law on the Merger Directive's anti-abuse rule. The Author then determines the scope of the said rule, through the establishment of general criteria for the finding of 'valid commercial reasons', as well as criteria for the application of presumptions of abuse. Finally, this thesis approaches several practical issues arising from the application of article 15 (1) (a) of the Merger Directive, namely whether Member-States are entitled to partially apply the tax deferral system, if there is a connection between qualifying transactions and the maintenance of the holding period for the purposes of the Parent-Subsidiary Directive, whether Member-States are also entitled to apply irrebuttable presumptions of ́abuse' and what may be the consequences for the concept of 'abuse' deriving from the last recommendations of the Commission."
