The special rights other than shares in cross-border mergers of limited liability companies within the European Union. A perspective from the Spanish Law

The present research aims to study the special rights other than shares in Spanish Law and the protection of their holders in cross-border mergers of limited liability companies within the European Union frame. Special rights other than shares are recognised as an independent legal category within legal systems of some EU Member States, such as Germany or Spain, through the implementation of the Third Directive 78/855/CEE concerning mergers of public limited liability companies. The above-cited Directive contains a special regime of protection for the holders of securities, other than shares, to which special rights are attached, consisting of being given rights in the acquiring company, at least equivalent to those they possessed in the company being acquired. This safeguard is to highlight the intimate connection between this type of rights and the company whose extinction determines the existence of those. Pursuant to the Directive 2005/56/CE on cross-border mergers of limited liability companies, each company taking part in these operations shall comply with the safeguards of members and third parties provided in their respective national law to which is subject. In this regard, the protection for holders of special rights other than shares shall be ruled by the domestic M&A regime. As far as Spanish Law are concerned, holders of these special rights are recognized a right of merger information, in the same terms as shareholders, as well as equal rights in the company resulting from the cross-border merger. However, these measures are not enough guarantee for a suitable protection, thus considering those holders of special rights as special creditors, sometimes it will be necessary to go to the general protection regime for creditors. In Spanish Law, it would involve the recognition of right to the merger opposition, whose exercise would prevent the operation was completed until ensuring equal rights.

Konfliktlinien und die Einstellungen zur Europäischen Integration in Norwegen : eine quantitativ-empirische Analyse basierend auf dem European Social Survey 2004/2005

In den konsultativen Referenden von 1972 und 1994 stimmte eine knappe Mehrheit der norwegischen Wählerschaft gegen einen Beitritt in die europäische Staatengemeinschaft. Regierung und Parlament zogen daraufhin ihr Aufnahmegesuch zurück. Ein erneuter Antrag auf Mitgliedschaft in der EU wird seither vermieden, da sich die Parteien des Konfliktpotenzials bewusst sind. Von der politischen Agenda ist diese Streitfrage jedoch nicht verschwunden. Die vorliegende Magisterarbeit greift den gängigen Erklärungsansatz der politikwissenschaftlichen Forschung auf: Das Scheitern der Referenden ist demnach auf die Aktualisierung traditioneller politischer Konfliktlinien zurückzuführen. Inwieweit diese Cleavages die Einstellungen norwegischer Staatsbürger zur Europäischen Integration bestimmen, wird anhand eines komplexen Konfliktlinienmodells und mittels aktueller Daten untersucht. Aufbauend auf dem klassischen Cleavage-Konzept von Seymour Lipset und Stein Rokkan (Zentrum/Peripherie, Staat/Kirche, Stadt/Land, Kapital/Arbeit), findet eine Konkretisierung von Stefano Bartolini und Peter Mair Anwendung, die jede der vier Konfliktlinien als dreidimensional (empirisch, normativ und organisatorisch) begreift. In einem historischen Überblick zeigt sich die Relevanz der tradierten Konfliktlinien für Norwegen, die sich sowohl im nationalen Parteiensystem als auch in den Standpunkten der Parteien zu einem EU-Beitritt widerspiegeln. Datengrundlage für die folgenden empirischen Analysen (Kreuztabellen, Mittelwert- und Korrelationsvergleiche, multiple lineare Regressionen) stellt die norwegische Teilstudie der zweiten Welle des European Social Survey von 2004/2005 dar. Europäische Integration wird von den meisten norwegischen Staatsbürgern, die sich empirisch, normativ und organisatorisch auf den Konfliktlinienpolen Peripherie, Kirche, Land oder Arbeit verorten lassen, negativ bewertet. Im Gegensatz dazu geht die recht häufig vertretene Kombination der empirischen Konfliktlinienpole Zentrum-Staat-Stadt-Kapital mit einer überdurchschnittlich positiven Einstellung einher. Insgesamt erweist sich der Zusammenhang mit der Zentrum/Peripherie-Konfliktlinie als am höchsten.

The Application of European Competition Law in Arbitration Proceedings

This work provides several policy proposals capable to strengthen the private enforcement of EU competition law in arbitration. It focuses on the procedural law aspects that are permeated by legal uncertainty and that have not yet fallen under the scrutiny of the law and economics debate. The policy proposals described herein are based on the functional approach to law and economics and aim to promote a more qualified decision making process by: adjudicators, private parties and lawmakers. The resulting framework of procedural rules would be a cost-effective policy tool that could sustain the European Commission’s effort to guarantee a workable level of competition in the EU internal market. This project aims to answer the following broad research question: which procedural rules can improve the efficiency of antitrust arbitration by decreasing litigation costs for private parties on the one hand, and by increasing private parties’ compliance with competition law on the other hand?Throughout this research project, such broad question has been developed into research sub-questions revolving around several key legal issues. The chosen sub-research questions result from a vacuum in the European enforcement system that leaves several key legal issues in antitrust arbitration unresolved. The legal framework proposed in this research project could prevent such a blurry scenario from impairing the EU private enforcement of competition law in arbitration. Therefore, our attention was triggered by those legal issues whose proposed solutions lead to relevant uncertainties and that are most suitable for a law and economics analysis.

The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

Injunctions against Innocent Third Parties: The Case of Website Blocking

The paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper.

European Union Meets South Korea: Bureaucratic Interests, Exporter Discrimination and the Negotiations of Trade Agreements

Who in the European Union drives the process of pursuing bilateral trade negotiations? In contrast to societal explanations, this article develops a novel argument as to how the European Commission manages the process and uses its position in strategic ways to pursue its interests. Rooted in principal–agent theory, the article discusses agent preferences and theorizes the conditions under which the agent sets specific focal points and interacts strategically with principals and third parties. The argument is discussed with case study evidence drawn from the first trade agreement concluded and ratified since the EU Commission announced its new strategy in 2006: the EU–South Korea trade agreement

Populist Communication in the Context of European Parliament Elections 2014

Over the last decade European democracies have been facing a challenge by the rising force of new populist movements. The emergence of the financial and sovereign debt crisis in Europe created new fertile soil for the strengthening of old-established – and the development of new – populist parties in several EU-member states. José Manuel Barroso, president of the European Commission, emphasized his increased unease concerning these developments when he was speaking at the annual Brussels Think Tank Forum on 22. April 2013: “I am deeply concerned about the divisions that we see emerging: political extremes and populism tearing apart the political support and the social fabric that we need to deal with the crisis; […]” (Barroso 2013). Indeed, European elites seem to be increasingly worried by these recent developments which are perceived as an impending stress test of the Union and the project of European integration as a whole (Hartleb 2013). Sure enough, the results of the recent European Parliament Elections 2014 revealed a great support for populist political parties in many societies of EU-member countries. To understand the success of populist parties in Europe it is crucial to first shed light on the nature of populist party communication itself. Significant communicative differences may explain the varying success of populist parties between and within countries, while a pure demand-side approach (i.e. a focus on the preferences of the electorate) often fails to do so (Mudde 2010). The aim of this study is therefore to analyse what different types of populist communication styles emerge during the EP election campaign 2014 and under which conditions populist communication styles are selected by political parties. So far, the empirical measurement of populism has received only scarce attention (Rooduijn & Pauwels 2011). Besides, most of the existing empirical investigations of populism are single case studies (Albertazzi & McDonnell 2008) and scholars have not yet developed systematic methods to measure populism in a comparative way (Rooduijn & Pauwels 2011). This is a consequence of a lack of conceptual clarity which goes along with populism (Taggart 2000; Barr 2009; Canovan 1999) due to its contextual sensitivity. Hence, populism in Europe should be analysed in a way that clarifies the concept of populism and moreover takes into account that the Europeanization of politics has an influence on the type of populist party communication, which is intended in the course of that study.

How parties frame social citizenship and the inclusion of immigrants in Germany, Switzerland and the United Kingdom

Recent research on the transformation of West European party systems emphasises that cultural issues such as immigration have gained in importance besides the traditional socio-economic cleavage. While this literature shows that parties address not only cultural but also economic is-sues, it has paid less attention on whether parties combine cultural and economic issues. In this paper we focus on immigrants’ social rights by analysing if and how mainstream parties combine immigration and redistributive issues. Drawing on Faist (1995), we distinguish three different perspectives how political actors, here mainstream parties, might react to the welfare chauvinist claims that aim to restrict immigrants’ social rights. Our analysis relies on party manifestos in Germany, Switzerland and the United Kingdom between 1999 and 2011. The results of the anal-ysis indicate that variation is found among party families, in particular among the left. Even though the purpose of the paper is not to ‘prove’ that the populist challenge explains how the mainstream left-wing parties behave, the results allow nonetheless for interpreting mainstream parties’ strategic combination of welfare and immigration issues as a response to anti-immigration and anti-integration issues raised by populist challengers.

Corruption and the Electoral Support of New Political Parties in Central and Eastern Europe

More than 20 years after the collapse of the Soviet Union, the electoral volatility in Central and Eastern Europe (CEE) is still remarkably high. A considerable part of the volatility derives from the votes for new political parties, since they are very often on the winning side of elections. This article examines corruption as a potential determinant of their electoral support. It argues that the effect of corruption is twofold: on the one hand, the historically derived corruption level reduces the electoral support for new political parties due to strong clientelist structures that bind the electorate to the established parties. On the other hand, an increase in perceived corruption above the traditional corruption level leads to a loss of trust in the political elite and therefore boosts the electoral support for new competitors. A statistical analysis of all democratic elections in CEE between 1996 and 2013 confirms these two counteracting effects.

Choosing the path of austerity: how parties and policy coalitions influence welfare state retrenchment in periods of fiscal consolidation

What are the conditions under which some austerity programmes rely on substantial cuts to social spending? More specifically, do the partisan complexion and the type of government condition the extent to which austerity policies imply welfare state retrenchment? This article demonstrates that large budget consolidations tend to be associated with welfare state retrenchment. The findings support a partisan and a politico-institutionalist argument: (i) in periods of fiscal consolidation, welfare state retrenchment tends to be more pronounced under left-wing governments; (ii) since welfare state retrenchment is electorally and politically risky, it also tends to be more pronounced when pursued by a broad pro-reform coalition government. Therefore, the article shows that during budget consolidations implemented by left-wing broad coalition governments, welfare state retrenchment is greatest. Using long-run multipliers from autoregressive distributed lag models on 17 OECD countries during the 1982–2009 period, substantial support is found for these expectations.

The Political Candidacy of EU Migrants in their European Countries of Residence. The Case of British and Romanians Standing in Spanish Local Elections

What explains the variation in how European citizens of diverse origins are politically incorporated in the member states of residence? This paper argues that immigrant groups’ status in the host society plays an important role in political party responses to immigrants’ political participation. Drawing on the case of Romanian and British candidacies in the Spanish local elections from 2011, the paper finds that the level of competition between parties is the key mechanism for incorporating candidates from a positively/neutrally perceived group. Instead, a greater level of ethnic diversity encourages the incorporation of candidates from the negatively perceived group. To demonstrate this, the paper uses an original data-set with the Romanian and British candidates in a large number of Spanish localities.