Pub Date : 2023-03-09DOI: 10.14712/23366478.2023.1
R. Král
The article is aimed as a contribution to academic discourse on how to solve possible competence conflicts between constitutional or other highest courts of the EU Member States and the Court of Justice of the EU (CJEU). This discourse has rather recently received an extraordinary impetus when Federal Constitutional Court of Germany (FCC) handed down its judgment in Weiss. For the first time in its history, the FCC invoked the ultra vires doctrine against an EU act and a CJEU judgment. It is argued in the article that the final say in dealing with such competence conflicts should not and cannot rest with either the CJEU or individual national apex courts. The article supports the idea of establishing an EU-competence super-arbiter. However, it is stressed in this respect that the component members of whatever EU-competence super-arbiter to be established should always include the representatives of all EU Member States (although not necessarily only them) and the voting of such EU-competence super-arbiter should be based on the (absolute) majority of those of its component members that are the representatives of Member States. Otherwise, the collective competence-competence monopoly of the EU Member States in the EU would be breached too strongly.
{"title":"On the Competence Conflicts between the Constitutional Courts of the EU Member States and the Court of Justice of the EU","authors":"R. Král","doi":"10.14712/23366478.2023.1","DOIUrl":"https://doi.org/10.14712/23366478.2023.1","url":null,"abstract":"The article is aimed as a contribution to academic discourse on how to solve possible competence conflicts between constitutional or other highest courts of the EU Member States and the Court of Justice of the EU (CJEU). This discourse has rather recently received an extraordinary impetus when Federal Constitutional Court of Germany (FCC) handed down its judgment in Weiss. For the first time in its history, the FCC invoked the ultra vires doctrine against an EU act and a CJEU judgment. It is argued in the article that the final say in dealing with such competence conflicts should not and cannot rest with either the CJEU or individual national apex courts. The article supports the idea of establishing an EU-competence super-arbiter. However, it is stressed in this respect that the component members of whatever EU-competence super-arbiter to be established should always include the representatives of all EU Member States (although not necessarily only them) and the voting of such EU-competence super-arbiter should be based on the (absolute) majority of those of its component members that are the representatives of Member States. Otherwise, the collective competence-competence monopoly of the EU Member States in the EU would be breached too strongly.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47606037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.42
Radim Boháč
The Real Estate Acquisition Tax and its predecessor, the Real Estate Transfer Tax, are no longer part of the Czech tax system. The aim of the article is to evaluate the theoretical classification of these taxes within the Czech tax system, in terms of the division of taxes into direct and indirect taxes. The author concludes that the Real Estate Acquisition Tax and the Real Estate Transfer Tax were indirect taxes.
{"title":"Labutí píseň daně z nabytí nemovitých věcí","authors":"Radim Boháč","doi":"10.14712/23366478.2022.42","DOIUrl":"https://doi.org/10.14712/23366478.2022.42","url":null,"abstract":"The Real Estate Acquisition Tax and its predecessor, the Real Estate Transfer Tax, are no longer part of the Czech tax system. The aim of the article is to evaluate the theoretical classification of these taxes within the Czech tax system, in terms of the division of taxes into direct and indirect taxes. The author concludes that the Real Estate Acquisition Tax and the Real Estate Transfer Tax were indirect taxes.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43879218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.48
Ľubomír Čunderlík
The submitted article concerns the topic of administrative punishment in the field of Slovak financial market regulations, placing emphasis on punishing the so-called “administrative procedural offences”. The article stems from the main hypothesis that the respective substantive legal regulation in the insurance sector in Slovakia, that is to say, the Slovak Insurance Act, allows the supervisory authority to impose sanctions for violations of a purely procedural nature (which – in effect – constitute administrative procedural offences), even in the decisions on merits. In the event that such hypothesis is confirmed, the author puts forward legal observations that should guide the supervisory authority towards the optimal choice of the sanctioning regime, i.e., to choose either to impose a procedural fine pursuant to procedural sanctioning provisions or to impose a meritorious sanction. At the same time, the aim of the article is to outline the differences in theory and practice between a substantive offence and a procedural offence and to highlight associated problematic areas of punishing procedural offences in the financial market.
{"title":"Správne trestanie na finančnom trhu (vybrané problémy trestania poriadkových deliktov subjektov finančného trhu)","authors":"Ľubomír Čunderlík","doi":"10.14712/23366478.2022.48","DOIUrl":"https://doi.org/10.14712/23366478.2022.48","url":null,"abstract":"The submitted article concerns the topic of administrative punishment in the field of Slovak financial market regulations, placing emphasis on punishing the so-called “administrative procedural offences”. The article stems from the main hypothesis that the respective substantive legal regulation in the insurance sector in Slovakia, that is to say, the Slovak Insurance Act, allows the supervisory authority to impose sanctions for violations of a purely procedural nature (which – in effect – constitute administrative procedural offences), even in the decisions on merits. In the event that such hypothesis is confirmed, the author puts forward legal observations that should guide the supervisory authority towards the optimal choice of the sanctioning regime, i.e., to choose either to impose a procedural fine pursuant to procedural sanctioning provisions or to impose a meritorious sanction. At the same time, the aim of the article is to outline the differences in theory and practice between a substantive offence and a procedural offence and to highlight associated problematic areas of punishing procedural offences in the financial market.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41323685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.53
Dana Ondrejová
The paper deals with the current issue of consumer discrimination from the perspective of the Russia-Ukraine conflict. The subject of the study is the assessment of whether an entrepreneur can completely prohibit or condition access to services to Russian citizens, or whether it can do so against persons supporting the war in Ukraine or Putinʼs regime. This conduct is assessed in particular from the point of view of illegality under Section 6 of the Consumer Protection Act, which very strictly enjoins an entrepreneur not to discriminate. The paper provides a summary of the related case law, raising the question whether, in view of the current political developments in Russia, these case law conclusions can continue to stand in the same form.
{"title":"Může podnikatel zakázat či podmínit přístup ke službám ruským občanům z důvodu války na Ukrajině?","authors":"Dana Ondrejová","doi":"10.14712/23366478.2022.53","DOIUrl":"https://doi.org/10.14712/23366478.2022.53","url":null,"abstract":"The paper deals with the current issue of consumer discrimination from the perspective of the Russia-Ukraine conflict. The subject of the study is the assessment of whether an entrepreneur can completely prohibit or condition access to services to Russian citizens, or whether it can do so against persons supporting the war in Ukraine or Putinʼs regime. This conduct is assessed in particular from the point of view of illegality under Section 6 of the Consumer Protection Act, which very strictly enjoins an entrepreneur not to discriminate. The paper provides a summary of the related case law, raising the question whether, in view of the current political developments in Russia, these case law conclusions can continue to stand in the same form.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45359092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.45
M. Kačaljak
The legal relevance of the OECD TP Guidelines in Slovakia has already been addressed in the previous literature with the seemingly surprising conclusion that despite its general acceptance in practice, it is not a source of law and the principle of iura novit curia does not apply to it. The object of this article is to supplement the existing state of knowledge by identifying the reasons that led to the procedural tactics of taxpayers who challenged the OECD TP Guidelines and its legal relevance en bloc in Slovakia and formulating considerations on how the OECD TP Guidelines should be approached in both application and judicial practice. Disputes between taxpayers and tax administrators to date indicate that there are fundamental defects in the approach to the OECD TP Guidelines, where its individual sentences are referred to as legal norms, which inevitably leads to disputes over the interpretation of this non-binding (soft law) document. Thus, a prerequisite for the OECD TP Guidelines to be enforced is their consistent application by both taxpayers and tax administrators. However, despite the above, it cannot be reasonably expected the OECD TP Guidelines would be relevant in the event of litigation. None of the statements contained therein are capable of overcoming the factual situation established by the evidence gathered (i.e., establishing a legal fiction) or of completing the factual situation where it is not apparent from the evidence (i.e., establishing a legal presumption). The key in a dispute before the court will therefore always be a proper finding of the facts and precise reasoning in any tax assessment decision. This understandably raises the demands on the quality of the tax administrator’s reasons for its decisions.
{"title":"Súdne spory v oblasti transferového oceňovania na Slovensku – relevancia OECD smernice o transferovom oceňovaní","authors":"M. Kačaljak","doi":"10.14712/23366478.2022.45","DOIUrl":"https://doi.org/10.14712/23366478.2022.45","url":null,"abstract":"The legal relevance of the OECD TP Guidelines in Slovakia has already been addressed in the previous literature with the seemingly surprising conclusion that despite its general acceptance in practice, it is not a source of law and the principle of iura novit curia does not apply to it. The object of this article is to supplement the existing state of knowledge by identifying the reasons that led to the procedural tactics of taxpayers who challenged the OECD TP Guidelines and its legal relevance en bloc in Slovakia and formulating considerations on how the OECD TP Guidelines should be approached in both application and judicial practice. Disputes between taxpayers and tax administrators to date indicate that there are fundamental defects in the approach to the OECD TP Guidelines, where its individual sentences are referred to as legal norms, which inevitably leads to disputes over the interpretation of this non-binding (soft law) document. Thus, a prerequisite for the OECD TP Guidelines to be enforced is their consistent application by both taxpayers and tax administrators. However, despite the above, it cannot be reasonably expected the OECD TP Guidelines would be relevant in the event of litigation. None of the statements contained therein are capable of overcoming the factual situation established by the evidence gathered (i.e., establishing a legal fiction) or of completing the factual situation where it is not apparent from the evidence (i.e., establishing a legal presumption). The key in a dispute before the court will therefore always be a proper finding of the facts and precise reasoning in any tax assessment decision. This understandably raises the demands on the quality of the tax administrator’s reasons for its decisions.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48005042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.44
W. Morawski
This article deals with whether the most recent version of the OECD Commentary should be used when interpreting a double taxation convention or the version that was in force at the time the tax treaty was concluded. The author generally prefers the second position. He rejects the dynamic interpretation of the tax treaty because of the risk of violating democratic standards, inter alia, the decisive role of the parliament in the process of creating tax law.
{"title":"Impact of Changing the Content of the OECD Commentaries to the OECD Model Convention on the Interpretation of a Double Taxation Convention – between Interpretive Dynamism and Unacceptable Change","authors":"W. Morawski","doi":"10.14712/23366478.2022.44","DOIUrl":"https://doi.org/10.14712/23366478.2022.44","url":null,"abstract":"This article deals with whether the most recent version of the OECD Commentary should be used when interpreting a double taxation convention or the version that was in force at the time the tax treaty was concluded. The author generally prefers the second position. He rejects the dynamic interpretation of the tax treaty because of the risk of violating democratic standards, inter alia, the decisive role of the parliament in the process of creating tax law.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46733349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.50
Roman Vybíral
The paper deals with the system of employer’s insurance for damages in the event of a work accident or occupational disease from the perspective of financial law (especially tax law). First of all, the author discusses the theoretical nature of this insurance and its establishment in the Czech legal system. In the following parts of the paper, the author deals with further legal implications of the results of his findings, namely whether the paid insurance premium has the character of a tax or an insurance premium from a theoretical point of view. He then places these results in the context of the assessment of constitutionality within the meaning of Article 11(5) and Article 4(1) of the Charter of Fundamental Rights and Freedoms.
{"title":"Pojištění zaměstnavatele za škodu při pracovním úrazu nebo nemoci z povolání z pohledu finančněprávní teorie","authors":"Roman Vybíral","doi":"10.14712/23366478.2022.50","DOIUrl":"https://doi.org/10.14712/23366478.2022.50","url":null,"abstract":"The paper deals with the system of employer’s insurance for damages in the event of a work accident or occupational disease from the perspective of financial law (especially tax law). First of all, the author discusses the theoretical nature of this insurance and its establishment in the Czech legal system. In the following parts of the paper, the author deals with further legal implications of the results of his findings, namely whether the paid insurance premium has the character of a tax or an insurance premium from a theoretical point of view. He then places these results in the context of the assessment of constitutionality within the meaning of Article 11(5) and Article 4(1) of the Charter of Fundamental Rights and Freedoms.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45751929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.47
Hana Marková
The mission of non-business entities is to provide publicly beneficial services. The possibilities of financial support of these entities originate from the system of public finances (subsidies), monetary non-public sources (donations), own resources, and indirect support. All the above-mentioned financial supplies belong to basic streams that can furnish non-profit organizations. In some countries the financial sources are broadened by tax rebates. Taxpayers redirect a share of paid income tax to a selected organization that is not business-based. A State is able to respond to these situations, for instance it can expand or narrow donations either in general or to certain entities. The overall consideration on the effectiveness of the use of individual monetary instruments might differ from the point of view of a State as well as from non-profit organizations.
{"title":"Stimulační možnosti státu při financování neziskového sektoru daňovými a dotačními nástroji","authors":"Hana Marková","doi":"10.14712/23366478.2022.47","DOIUrl":"https://doi.org/10.14712/23366478.2022.47","url":null,"abstract":"The mission of non-business entities is to provide publicly beneficial services. The possibilities of financial support of these entities originate from the system of public finances (subsidies), monetary non-public sources (donations), own resources, and indirect support. All the above-mentioned financial supplies belong to basic streams that can furnish non-profit organizations. In some countries the financial sources are broadened by tax rebates. Taxpayers redirect a share of paid income tax to a selected organization that is not business-based. A State is able to respond to these situations, for instance it can expand or narrow donations either in general or to certain entities. The overall consideration on the effectiveness of the use of individual monetary instruments might differ from the point of view of a State as well as from non-profit organizations.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46209269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.43
Radek Halíček, M. Karfíková
Historically, the cost of financing business through debt has reduced income tax paid. Financing via new equity has not. This asymmetry has not been without consequences. The high indebtedness and relative undercapitalisation of corporates creates a risk of reduced resilience to economic shocks. Some countries have introduced tax incentivisation of equity, reduced tax incentivisation of debt, or both. In June 2022, the European Commission proposed a harmonised solution: Debt Equity Bias Reduction Allowance (DEBRA). All EU Member States, including the Czech Republic, should provide corporate income tax deduction for equity, whilst further limiting interest deduction, starting 2024.
{"title":"Tax Incentivisation of Debt Financing vs. Equity Financing: Present Status and Approaches to Solve the Tax Asymmetry","authors":"Radek Halíček, M. Karfíková","doi":"10.14712/23366478.2022.43","DOIUrl":"https://doi.org/10.14712/23366478.2022.43","url":null,"abstract":"Historically, the cost of financing business through debt has reduced income tax paid. Financing via new equity has not. This asymmetry has not been without consequences. The high indebtedness and relative undercapitalisation of corporates creates a risk of reduced resilience to economic shocks. Some countries have introduced tax incentivisation of equity, reduced tax incentivisation of debt, or both. In June 2022, the European Commission proposed a harmonised solution: Debt Equity Bias Reduction Allowance (DEBRA). All EU Member States, including the Czech Republic, should provide corporate income tax deduction for equity, whilst further limiting interest deduction, starting 2024.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46474891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-09DOI: 10.14712/23366478.2022.49
Miroslav Štrkolec
Virtual currencies have been part of economic reality for more than a decade but have only become the subject of legal regulation at European and national level in recent years. This is in a sense natural, since law as a normative system reacts only with a certain time lag to already existing facts, circumstances, and relations which, due to their impact, require legal regulation. The author deals with the legal nature of virtual currencies and their relationship to categories such as money, currency, crypto assets. The article then defines their regulatory framework and taxation in terms of de lege lata and de lege ferenda. The paper concludes with thoughts towards the future of virtual currencies in financial and tax law.
{"title":"Virtuálne meny (právna podstata, regulačný rámec a zdaňovanie)","authors":"Miroslav Štrkolec","doi":"10.14712/23366478.2022.49","DOIUrl":"https://doi.org/10.14712/23366478.2022.49","url":null,"abstract":"Virtual currencies have been part of economic reality for more than a decade but have only become the subject of legal regulation at European and national level in recent years. This is in a sense natural, since law as a normative system reacts only with a certain time lag to already existing facts, circumstances, and relations which, due to their impact, require legal regulation. The author deals with the legal nature of virtual currencies and their relationship to categories such as money, currency, crypto assets. The article then defines their regulatory framework and taxation in terms of de lege lata and de lege ferenda. The paper concludes with thoughts towards the future of virtual currencies in financial and tax law.","PeriodicalId":52921,"journal":{"name":"Acta Universitatis Carolinae Iuridica","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44717693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：