Pub Date : 2023-06-30DOI: 10.4467/22996834flr.23.003.18145
Klemens Katterbauer
This contribution deals with fiscal sustainability understood as “avoiding an excessive increase in government liabilities – a burden on future generations – while ensuring that the government can deliver the necessary public services, including the necessary safety net in times of hardship, and to adjust policy in response to new challenges”. The article aims the analysis of the legal framework for fiscal rules at the level of the EU and the national level in France and Poland. The research problem is to answer the question of how and whether the French and Polish regulations meet the international regulations in the field of fiscal sustainability. According to the research hypothesis, both countries only partially meet the EU requirements. The article is based on the detailed desk research method requiring analysis of the literature, statistical data, and EU and national legal regulations. The general conclusion is that both countries do not fully comply with EU commitments regarding fiscal rules.
{"title":"Strengthening the Environment for Islamic Finance in Hong Kong – A Regulatory Analysis","authors":"Klemens Katterbauer","doi":"10.4467/22996834flr.23.003.18145","DOIUrl":"https://doi.org/10.4467/22996834flr.23.003.18145","url":null,"abstract":"This contribution deals with fiscal sustainability understood as “avoiding an excessive increase in government liabilities – a burden on future generations – while ensuring that the government can deliver the necessary public services, including the necessary safety net in times of hardship, and to adjust policy in response to new challenges”. The article aims the analysis of the legal framework for fiscal rules at the level of the EU and the national level in France and Poland. The research problem is to answer the question of how and whether the French and Polish regulations meet the international regulations in the field of fiscal sustainability. According to the research hypothesis, both countries only partially meet the EU requirements. The article is based on the detailed desk research method requiring analysis of the literature, statistical data, and EU and national legal regulations. The general conclusion is that both countries do not fully comply with EU commitments regarding fiscal rules.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80012545","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 : 2023-06-30DOI: 10.4467/22996834flr.23.002.18144
Marek Bočánek
This article consults new regulations in Estonia and Lithuania where significant amendments have been adopted for the establishment and approval of crypto exchange services' providers. While Estonia has adopted an important amendment to the regulation of providers of crypto exchange services and of crypto wallet services, Lithuania has adopted a completely new regulation that has never been part of its legal system in any aspect. Despite these amendments, it's expectable that these regulations will have only temporary effect by the adoption of Markets in Crypto Assets Regulation (MiCA), now only at the stage of working paper.
{"title":"Changes in the Regulation of Crypto Exchanges in Lithuania And Estonia","authors":"Marek Bočánek","doi":"10.4467/22996834flr.23.002.18144","DOIUrl":"https://doi.org/10.4467/22996834flr.23.002.18144","url":null,"abstract":"This article consults new regulations in Estonia and Lithuania where significant amendments have been adopted for the establishment and approval of crypto exchange services' providers. While Estonia has adopted an important amendment to the regulation of providers of crypto exchange services and of crypto wallet services, Lithuania has adopted a completely new regulation that has never been part of its legal system in any aspect. Despite these amendments, it's expectable that these regulations will have only temporary effect by the adoption of Markets in Crypto Assets Regulation (MiCA), now only at the stage of working paper.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"2 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75480279","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}
Abstract 385 Some national competent authorities (NCAs), as well as ESMA, have responded with short-selling bans and other restrictions to the COVID-19 pandemic. This approach has attracted criticism in both legal and economic literature. Although the COVID-19 pandemic has been overcome, or at least ways of dealing with COVID-19 have been found, it is of crucial importance for future EU short selling regulation how the legal basis of the measures for exceptional situations is designed and how the supervisory authorities will deal with it. This is valid not least because we are living in a time in which one crisis (COVID-19) follows the next (Ukraine war, gas shortage, inflation etc). Against this backdrop, this paper reviews the academic assessment of the supervisory approach taken and aims to contribute to an improved legislative and supervisory approach regarding short selling in (future) crises. 386
{"title":"Short Selling, COVID-19 and the Regulators – Lessons Learned","authors":"Sebastian Sieder","doi":"10.1515/ecfr-2023-0017","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0017","url":null,"abstract":"Abstract 385 Some national competent authorities (NCAs), as well as ESMA, have responded with short-selling bans and other restrictions to the COVID-19 pandemic. This approach has attracted criticism in both legal and economic literature. Although the COVID-19 pandemic has been overcome, or at least ways of dealing with COVID-19 have been found, it is of crucial importance for future EU short selling regulation how the legal basis of the measures for exceptional situations is designed and how the supervisory authorities will deal with it. This is valid not least because we are living in a time in which one crisis (COVID-19) follows the next (Ukraine war, gas shortage, inflation etc). Against this backdrop, this paper reviews the academic assessment of the supervisory approach taken and aims to contribute to an improved legislative and supervisory approach regarding short selling in (future) crises. 386","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"49 12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771566","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}
Abstract 314 The option to deviate from a legal provision has been problematic for company law. The theoretical background of legislation is rooted in the interpretative models of company law: the investor model favouring the interests of its members (shareholder theory) and a contractual model which takes into account the stakeholders in the business relationship with the company (stakeholder theory). This article reflects on the development of the regulation’s nature of Hungarian company law; the legislator implemented a fundamental change in the central element to the governance of company law in 2013. After the modification of central regulation concept of Hungarian company law, the role of the judiciary shifted to the classification of the different default-mandatory rules. This article investigates the development of the new company law regulations concept, and the related judicial practice, and also approaches the topic from the view of interests (of creditors, employees and members), striving to create a coherent dogmatic system.
{"title":"The Mandatory and Default Regulation in Hungarian Company Law – A Decade of Experience","authors":"Ádám Auer, Tekla Papp","doi":"10.1515/ecfr-2023-0012","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0012","url":null,"abstract":"Abstract 314 The option to deviate from a legal provision has been problematic for company law. The theoretical background of legislation is rooted in the interpretative models of company law: the investor model favouring the interests of its members (shareholder theory) and a contractual model which takes into account the stakeholders in the business relationship with the company (stakeholder theory). This article reflects on the development of the regulation’s nature of Hungarian company law; the legislator implemented a fundamental change in the central element to the governance of company law in 2013. After the modification of central regulation concept of Hungarian company law, the role of the judiciary shifted to the classification of the different default-mandatory rules. This article investigates the development of the new company law regulations concept, and the related judicial practice, and also approaches the topic from the view of interests (of creditors, employees and members), striving to create a coherent dogmatic system.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771565","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}
Abstract 243 On 29 June 2023, the long-awaited Regulation on markets in crypto-assets (MiCAR) came into force. It is the first comprehensive framework for DLT-based units (tokens or crypto-assets) in the world. This article tries to shed some light on the drivers of its creation and the remarkable speed of the parliamentary process. It discusses its key definitions and rulesets, and identifies some interesting policy decisions made by EU lawmakers. However, despite its speed and boldness, MiCAR perpetuates the existing structures of EU financial markets regulation, including some of its weaknesses such as its emphasis on national enforcement. The idea to “copy and paste” existing regulation might also lead to problems in the future because the inconsistencies between crypto-asset regulation and financial markets regulation will probably become more significant. The big question is if and how MiCAR will approach the remaining gaps, such as the regulation of decentralised finance.
{"title":"The Regulation on Markets in Crypto-Assets (MiCAR): Landmark Codification, or First Step of Many, or Both?","authors":"Philipp Maume","doi":"10.1515/ecfr-2023-0014","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0014","url":null,"abstract":"Abstract 243 On 29 June 2023, the long-awaited Regulation on markets in crypto-assets (MiCAR) came into force. It is the first comprehensive framework for DLT-based units (tokens or crypto-assets) in the world. This article tries to shed some light on the drivers of its creation and the remarkable speed of the parliamentary process. It discusses its key definitions and rulesets, and identifies some interesting policy decisions made by EU lawmakers. However, despite its speed and boldness, MiCAR perpetuates the existing structures of EU financial markets regulation, including some of its weaknesses such as its emphasis on national enforcement. The idea to “copy and paste” existing regulation might also lead to problems in the future because the inconsistencies between crypto-asset regulation and financial markets regulation will probably become more significant. The big question is if and how MiCAR will approach the remaining gaps, such as the regulation of decentralised finance.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771397","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 : 2023-04-01DOI: 10.1515/ecfr-2023-frontmatter2
{"title":"Frontmatter","authors":"","doi":"10.1515/ecfr-2023-frontmatter2","DOIUrl":"https://doi.org/10.1515/ecfr-2023-frontmatter2","url":null,"abstract":"","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"479 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771400","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}
Abstract 336 This paper deals with the problem of European companies trading with companies in developing countries where fundamental labour rights are being violated. For a long time, this issue was left to the responsibility of European companies on a voluntary basis. Recently, a shift towards hard law in the sense of legal obligations has become visible. The European Commission started a legislative process in 2021 and published a proposal for a due diligence Directive in February 2022 to which the European Parliament responded in first reading on 1 June 2023. In the meanwhile, France and Germany passed legislation, and in the Netherlands and Belgium a private member’s bill was submitted by members of Parliament. All in all, a lot is happening on this subject at both European and national level. Much has been written about the proposals as such but the issue of fundamental labour rights has been underexposed. This paper fills that gap. Central question is as to what extent legislation will lead to an improvement in compliance with fundamental labour rights in the cross-border supply chain. This paper will explore this question on the basis of the said European and national legislative initiatives. It will become clear that the solution lies much more in a mix of hard law and self-regulation and that in the search for a smart mix, lessons can be learned from the Dutch system of private sector-specific agreements. 337
{"title":"Decent Work in the Cross-Border Supply Chain: A Smart Mix of Legislation and Self-Regulation","authors":"Femke G. Laagland","doi":"10.1515/ecfr-2023-0013","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0013","url":null,"abstract":"Abstract 336 This paper deals with the problem of European companies trading with companies in developing countries where fundamental labour rights are being violated. For a long time, this issue was left to the responsibility of European companies on a voluntary basis. Recently, a shift towards hard law in the sense of legal obligations has become visible. The European Commission started a legislative process in 2021 and published a proposal for a due diligence Directive in February 2022 to which the European Parliament responded in first reading on 1 June 2023. In the meanwhile, France and Germany passed legislation, and in the Netherlands and Belgium a private member’s bill was submitted by members of Parliament. All in all, a lot is happening on this subject at both European and national level. Much has been written about the proposals as such but the issue of fundamental labour rights has been underexposed. This paper fills that gap. Central question is as to what extent legislation will lead to an improvement in compliance with fundamental labour rights in the cross-border supply chain. This paper will explore this question on the basis of the said European and national legislative initiatives. It will become clear that the solution lies much more in a mix of hard law and self-regulation and that in the search for a smart mix, lessons can be learned from the Dutch system of private sector-specific agreements. 337","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771396","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}
Abstract 276 Publicly traded companies face growing scrutiny in respect of their sustainability strategies and policies from regulators, the general public, NGOs, as well as investors. One area where the attention for corporate sustainability issues has materialised is at the general meetings of these companies, including in the form of a growing number of shareholder proposals on environmental and social topics. Against the background of this development, I have investigated sustainability-related shareholder proposals in 25 countries. More specifically, this paper presents the results of a survey of shareholder proposals on environmental and social topics that have been put to a vote in the period between 2020 and 2022, with the aim of exploring what sustainability issues are addressed through shareholder proposals, who submit E&S-related shareholder proposals, and which sectors are subjected to such proposals. During this three-year period, nearly one-third of the 1995 shareholder proposal that have been identified directly related to environmental and social issues. The investigation reveals that the majority of such proposals have been submitted by individuals, organisations with primarily social objectives, and SRI asset managers and investment advisors. But in light of increasing attention, both in society and in investor circles, for what institutional investors are doing to support and promote sustainability strategies and policies of publicly traded companies, in particular when it comes to climate change, it may be the case that (some of) these investors will increasingly exercise agenda-setting rights in connection with corporate sustainability issues. 277
{"title":"Shareholder Proposals and Sustainability: An Empirically-Based Critical Reflection","authors":"Michael H.C. Bakker","doi":"10.1515/ecfr-2023-0015","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0015","url":null,"abstract":"Abstract 276 Publicly traded companies face growing scrutiny in respect of their sustainability strategies and policies from regulators, the general public, NGOs, as well as investors. One area where the attention for corporate sustainability issues has materialised is at the general meetings of these companies, including in the form of a growing number of shareholder proposals on environmental and social topics. Against the background of this development, I have investigated sustainability-related shareholder proposals in 25 countries. More specifically, this paper presents the results of a survey of shareholder proposals on environmental and social topics that have been put to a vote in the period between 2020 and 2022, with the aim of exploring what sustainability issues are addressed through shareholder proposals, who submit E&S-related shareholder proposals, and which sectors are subjected to such proposals. During this three-year period, nearly one-third of the 1995 shareholder proposal that have been identified directly related to environmental and social issues. The investigation reveals that the majority of such proposals have been submitted by individuals, organisations with primarily social objectives, and SRI asset managers and investment advisors. But in light of increasing attention, both in society and in investor circles, for what institutional investors are doing to support and promote sustainability strategies and policies of publicly traded companies, in particular when it comes to climate change, it may be the case that (some of) these investors will increasingly exercise agenda-setting rights in connection with corporate sustainability issues. 277","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771398","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}
Abstract 358 Recent judgments of the Court of Justice of the European Union involving Austria and Italy raises the question of whether greater access to the courts makes ineffective the duty of supervisory authorities in enforcing the mandatory bid rule. This question is discussed in the context of provisions in the Takeover Bid Directive that enables Member States to avoid disruptive greater access to the courts. The overarching argument advanced in this article is that a system of takeover regulation that provides parties the ability to challenge regulatory decisions in courts is bound to cause delays and uncertainty in the takeover process. In the UK, the Takeover Bid Directive was implemented in a way that limits greater access to the courts for parties that are required to comply with the ruling of the supervisory authority. The article suggest that the UK approach may provide a benchmark for reform in EU countries. 359
{"title":"Negative Implications of Greater Access to the Courts in the Takeover Process","authors":"Jonathan Mukwiri","doi":"10.1515/ecfr-2023-0018","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0018","url":null,"abstract":"Abstract 358 Recent judgments of the Court of Justice of the European Union involving Austria and Italy raises the question of whether greater access to the courts makes ineffective the duty of supervisory authorities in enforcing the mandatory bid rule. This question is discussed in the context of provisions in the Takeover Bid Directive that enables Member States to avoid disruptive greater access to the courts. The overarching argument advanced in this article is that a system of takeover regulation that provides parties the ability to challenge regulatory decisions in courts is bound to cause delays and uncertainty in the takeover process. In the UK, the Takeover Bid Directive was implemented in a way that limits greater access to the courts for parties that are required to comply with the ruling of the supervisory authority. The article suggest that the UK approach may provide a benchmark for reform in EU countries. 359","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135771399","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}
622This paper discusses steward ownership, a concept of business ownership aiming at long-term and purpose-oriented entrepreneurship developed in Germany. Steward ownership can be seen in the context of the current worldwide discussion of corporate purpose and legal innovations like the US-American benefit corporation and the French société a mission has developed a unique approach. The concept is currently put into practice using German company law and the law of foundations. However, in the coalition agreement of the current German government, a new legal form is envisaged to facilitate the founding of steward-owned businesses. The paper presents the concepts and discusses a draft law developed as food for thought for the legislature.
{"title":"Binding Capital to Free Purpose: Steward Ownership in Germany","authors":"Anne Sanders","doi":"10.1515/ecfr-2022-0020","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0020","url":null,"abstract":"<jats:target target-type=\"next-page\">622</jats:target>This paper discusses steward ownership, a concept of business ownership aiming at long-term and purpose-oriented entrepreneurship developed in Germany. Steward ownership can be seen in the context of the current worldwide discussion of corporate purpose and legal innovations like the US-American <jats:italic>benefit corporation</jats:italic> and the French <jats:italic>société a mission</jats:italic> has developed a unique approach. The concept is currently put into practice using German company law and the law of foundations. However, in the coalition agreement of the current German government, a new legal form is envisaged to facilitate the founding of steward-owned businesses. The paper presents the concepts and discusses a draft law developed as food for thought for the legislature.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540195","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}
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