Abstract 950In light of the experience we surmise that, in the EU law of finance, both for European courts and the BoA and AP the question is not about changing the standards of review as they stand; it is about ensuring that the standard of legality review is meaningfully applied, because the reviewing court or quasi court is capable of engaging in a dialogue with the supervisory institution in its own terms and challenge its reasoning, having due regard to all factual elements of the case. What kind of error of assessment counts as ‘manifest’ cannot be determined independently of the Court’s understanding of what falls within the acceptable range, which, in turn, cannot be established without reference to the court’s willingness to take an hard, or better said, closer look at all factual and legal elements of the reasoning. Thus, albeit with nuances often determined by the specific features of each case, in the supervisory and resolution context it seems to us that the marginal v full review debate is, in the Banking Union, more academic than practical and that a full assessment of facts, to the extent that procedural rules allow a proactive evidentiary role, Q&A and expert witness, and a stringent review of the interpretation and application of law (and thus of the substantive legality) is possible, and thus full legal accountability and full effective judicial protection is warranted.951
{"title":"Some Reflections on the Standard of Review in the Experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel","authors":"Marco Lamandini, David Ramos Muñoz","doi":"10.1515/ecfr-2022-0027","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0027","url":null,"abstract":"Abstract 950In light of the experience we surmise that, in the EU law of finance, both for European courts and the BoA and AP the question is not about changing the standards of review as they stand; it is about ensuring that the standard of legality review is meaningfully applied, because the reviewing court or quasi court is capable of engaging in a dialogue with the supervisory institution in its own terms and challenge its reasoning, having due regard to all factual elements of the case. What kind of error of assessment counts as ‘manifest’ cannot be determined independently of the Court’s understanding of what falls within the acceptable range, which, in turn, cannot be established without reference to the court’s willingness to take an hard, or better said, closer look at all factual and legal elements of the reasoning. Thus, albeit with nuances often determined by the specific features of each case, in the supervisory and resolution context it seems to us that the marginal v full review debate is, in the Banking Union, more academic than practical and that a full assessment of facts, to the extent that procedural rules allow a proactive evidentiary role, Q&A and expert witness, and a stringent review of the interpretation and application of law (and thus of the substantive legality) is possible, and thus full legal accountability and full effective judicial protection is warranted.951","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"950 - 970"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48032730","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}
{"title":"Legal Conference – Panel II – Role, Scope of Review and Significance of Internal Administrative Review Bodies in the Banking Union and in the European System of Financial Supervision","authors":"Ana Raquel Lapresta Bienz, Joan M. Rius Riu","doi":"10.1515/ecfr-2022-0030","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0030","url":null,"abstract":"","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"971 - 977"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41895425","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 936The three financial appeal bodies established in the EU (Board of Appeal of the European Supervisory Authorities, Administrative Board of Review of the SSM, and Appeal Panel of the Single Resolution Board) have certainly a number of advantages. Particularly, their technical expertise in matters of financial supervision and resolution makes them well placed to understand the intricacies, complexities and reactions of financial markets. The members of these bodies are individuals of high repute, with a proven record of relevant knowledge and professional experience and are not bound by any instructions, thereby acting independently and in the public interest. Yet, there are also drawbacks as the nature of these financial appeal bodies is hybrid, quasi-judicial, combining features from both advisory committees and courts of justice. Also, the legal regime applicable to these financial appeal bodies is both complex and not uniform. The rationale of the new European financial regulatory regime post GFC, which prompted the creation of the appeal bodies, resides in the primacy of financial stability and public interest considerations. Although there is no doubt that administrative decisions need to be motivated if they are to be reviewed, most of such decisions in the area of banking and finance are very complex and yet timing is crucial for them to be effective. On these grounds, legitimacy and accountability are of utmost importance for any democratic system to properly function; however, the more complex the activity, the more difficult it is to establish clear standards of conduct and specific outcomes.937
{"title":"The Financial Appeal Bodies of the European Union: Nature and Future of the Appeal Panel of the Single Resolution Board","authors":"R. Lastra, Marco Bodellini","doi":"10.1515/ecfr-2022-0025","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0025","url":null,"abstract":"Abstract 936The three financial appeal bodies established in the EU (Board of Appeal of the European Supervisory Authorities, Administrative Board of Review of the SSM, and Appeal Panel of the Single Resolution Board) have certainly a number of advantages. Particularly, their technical expertise in matters of financial supervision and resolution makes them well placed to understand the intricacies, complexities and reactions of financial markets. The members of these bodies are individuals of high repute, with a proven record of relevant knowledge and professional experience and are not bound by any instructions, thereby acting independently and in the public interest. Yet, there are also drawbacks as the nature of these financial appeal bodies is hybrid, quasi-judicial, combining features from both advisory committees and courts of justice. Also, the legal regime applicable to these financial appeal bodies is both complex and not uniform. The rationale of the new European financial regulatory regime post GFC, which prompted the creation of the appeal bodies, resides in the primacy of financial stability and public interest considerations. Although there is no doubt that administrative decisions need to be motivated if they are to be reviewed, most of such decisions in the area of banking and finance are very complex and yet timing is crucial for them to be effective. On these grounds, legitimacy and accountability are of utmost importance for any democratic system to properly function; however, the more complex the activity, the more difficult it is to establish clear standards of conduct and specific outcomes.937","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"936 - 949"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47705826","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}
{"title":"Panel I of the SRB Legal Conference – Legal and Operational Challenges That Arise in Respect of the Cooperation Between Banking Supervision and Resolution Authorities in the EU and in Respect of Their Cooperation with Third-Country Authorities","authors":"Eleonora Paggi, Cristiano Martinez","doi":"10.1515/ecfr-2022-0036","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0036","url":null,"abstract":"","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"924 - 935"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43163758","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 900 In bank resolution, swift and effective cooperation of different actors is of essence, particularly in cross-border cases. While the same can be said about cross-border insolvency management generally, the European framework for the recovery and resolution of failing banks and, in particular, the centralisation of resolution powers within the Single Resolution Mechanism stand out as particularly complex – and, at the same time, remains to some extent untested to the present date. Against this backdrop, the present article explores the statutory framework for cooperation between the Single Resolution Board, the European Central Bank in its capacity as supervisory authority within the Single Supervisory Mechanism, National Resolution Authorities and Third Country authorities. It concludes that, while the legal and institutional arrangements governing inter-agency cooperation are generally sound, operationalisation in actual cases might still be exposed to unexpected disruptions, especially in cases where political interests are at stake.
{"title":"Inter-agency Cooperation Within the SRM: Legal and Operational Challenges for the Cooperation Between Banking Supervision and Resolution Authorities in the EU and With Third-country Authorities","authors":"Jens-Hinrich Binder","doi":"10.1515/ecfr-2022-0023","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0023","url":null,"abstract":"Abstract 900 In bank resolution, swift and effective cooperation of different actors is of essence, particularly in cross-border cases. While the same can be said about cross-border insolvency management generally, the European framework for the recovery and resolution of failing banks and, in particular, the centralisation of resolution powers within the Single Resolution Mechanism stand out as particularly complex – and, at the same time, remains to some extent untested to the present date. Against this backdrop, the present article explores the statutory framework for cooperation between the Single Resolution Board, the European Central Bank in its capacity as supervisory authority within the Single Supervisory Mechanism, National Resolution Authorities and Third Country authorities. It concludes that, while the legal and institutional arrangements governing inter-agency cooperation are generally sound, operationalisation in actual cases might still be exposed to unexpected disruptions, especially in cases where political interests are at stake.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"900 - 916"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49530992","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 978 The paper aims at reflecting on the judicial control of the discretionary measures in banking and financial fields exercised by the EU Courts, as well as the ‘quasi-judicial’ control, in the same fields, exercised by the Boards of Appeal. Therefore, the present article firstly discusses the EU Courts’ general approach over discretionary acts, assessing the peculiarities of the cases related to decisions taken by banking authorities. Secondly, the papers assessesthe ‘new’ means of quasi-judicial accountability, i.e. SRB Appeal Panel and the ESAs JBoA, their jurisprudence vis-à-vis discretionary choices of EU banking authorities and whether and how their role could be enhanced for improving a greater accountability. Finally, the article discussesthe possible evolution of EU Courts in reviewing banking law, particularly after the 2015-2019 Reforms of CJEU Statute (and those currently ongoing).979
{"title":"The ‘judicial’ control of discretionary measures in banking and financial fields: the role of EU Courts (and Boards of Appeal)","authors":"M. Condinanzi","doi":"10.1515/ecfr-2022-0035","DOIUrl":"https://doi.org/10.1515/ecfr-2022-0035","url":null,"abstract":"Abstract 978 The paper aims at reflecting on the judicial control of the discretionary measures in banking and financial fields exercised by the EU Courts, as well as the ‘quasi-judicial’ control, in the same fields, exercised by the Boards of Appeal. Therefore, the present article firstly discusses the EU Courts’ general approach over discretionary acts, assessing the peculiarities of the cases related to decisions taken by banking authorities. Secondly, the papers assessesthe ‘new’ means of quasi-judicial accountability, i.e. SRB Appeal Panel and the ESAs JBoA, their jurisprudence vis-à-vis discretionary choices of EU banking authorities and whether and how their role could be enhanced for improving a greater accountability. Finally, the article discussesthe possible evolution of EU Courts in reviewing banking law, particularly after the 2015-2019 Reforms of CJEU Statute (and those currently ongoing).979","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":"978 - 991"},"PeriodicalIF":0.6,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42597878","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 : 2022-10-06DOI: 10.18572/1813-1220-2022-10-25-29
Kirill N. Grigorov
In the legal regulation of tax benefits and preferences for the Corporate Property Tax have been noticeable changes for the period from the beginning of 2022 to the present. These changes are related to various rules of Chapter 30 of the Tax Code of the Russian Federation. The author of the article analyzes some of these changes over the specified period of time, establishes certain trends in these changes, and also considers possible options for changes in the legal regulation of tax benefits and preferences for the specified tax in the future.
{"title":"Some Modern Trends of Legal Regulation of Tax Beneϐits and Preferences on Corporate Property Tax in the Tax Code of the Russian Federation","authors":"Kirill N. Grigorov","doi":"10.18572/1813-1220-2022-10-25-29","DOIUrl":"https://doi.org/10.18572/1813-1220-2022-10-25-29","url":null,"abstract":"In the legal regulation of tax benefits and preferences for the Corporate Property Tax have been noticeable changes for the period from the beginning of 2022 to the present. These changes are related to various rules of Chapter 30 of the Tax Code of the Russian Federation. The author of the article analyzes some of these changes over the specified period of time, establishes certain trends in these changes, and also considers possible options for changes in the legal regulation of tax benefits and preferences for the specified tax in the future.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"32 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75990454","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 : 2022-10-06DOI: 10.18572/1813-1220-2022-10-42-45
E. Gracheva, Marina V. Karaseva (Sentsova), E. Pokachalova, A. Sitnik
This article is a review of the Financial Law textbook edited by V.F. Popondopulo and D.A. Petrov. The article critically assesses the provisions of the textbook, that confound the fundamentals of the financial law of the Russian Federation. The superficial analysis of the fundamental financial law categories, the absence of knowledge of the history of development of financial law as well as the absence of due research of the system of legal regulation of public relations established in the course of functioning of the financial market has led the authors of the textbook to incorrect conclusions. It is concluded that in general the textbook under review is superficial, it does not take into account the basic provisions of the national theory of financial law and intentional negligence of research of the leading representatives of true science of financial law together with incomplete author standpoints is a challenge for the whole scientific community and representatives of the financial law science in particular
{"title":"Review of the Financial Law Textbook Edited by V.F. Popondopulo and D.A. Petrov — Moscow : Prospect, 2021. — 576 p.","authors":"E. Gracheva, Marina V. Karaseva (Sentsova), E. Pokachalova, A. Sitnik","doi":"10.18572/1813-1220-2022-10-42-45","DOIUrl":"https://doi.org/10.18572/1813-1220-2022-10-42-45","url":null,"abstract":"This article is a review of the Financial Law textbook edited by V.F. Popondopulo and D.A. Petrov. The article critically assesses the provisions of the textbook, that confound the fundamentals of the financial law of the Russian Federation. The superficial analysis of the fundamental financial law categories, the absence of knowledge of the history of development of financial law as well as the absence of due research of the system of legal regulation of public relations established in the course of functioning of the financial market has led the authors of the textbook to incorrect conclusions. It is concluded that in general the textbook under review is superficial, it does not take into account the basic provisions of the national theory of financial law and intentional negligence of research of the leading representatives of true science of financial law together with incomplete author standpoints is a challenge for the whole scientific community and representatives of the financial law science in particular","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"27 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85884669","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 : 2022-10-06DOI: 10.18572/1813-1220-2022-10-18-22
I. Andreechev
The article analyzes the forms of implementation of the principle of subsidiarity in the formation of expenditure obligations at the regional level. Such expenditure obligations are designed to complement the powers of the Russian Federation. The examples given in the article demonstrate the transformation of the policy of budgetary federalism, initially aimed at reducing the scope of joint powers to the maximum extent possible, eliminating duplication of powers of authorities of different territorial levels.
{"title":"Use of the Principle of Subsidiarity in Formation of Regional Payment Obligations","authors":"I. Andreechev","doi":"10.18572/1813-1220-2022-10-18-22","DOIUrl":"https://doi.org/10.18572/1813-1220-2022-10-18-22","url":null,"abstract":"The article analyzes the forms of implementation of the principle of subsidiarity in the formation of expenditure obligations at the regional level. Such expenditure obligations are designed to complement the powers of the Russian Federation. The examples given in the article demonstrate the transformation of the policy of budgetary federalism, initially aimed at reducing the scope of joint powers to the maximum extent possible, eliminating duplication of powers of authorities of different territorial levels.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"79 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79070492","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 : 2022-10-06DOI: 10.18572/1813-1220-2022-10-23-24
Dmitry G. Bachurin
The article is devoted to the le al, economic and organizational aspects of value added taxation in the Russian Federation. The questions of the potential possibility of introducing the tax consolidation regime into the legal regulation of VAT in the Russian Federation are examined.
{"title":"On the Issue of Implementing the Regimen of Tax Consolidation into the VAT Legal Regulation in the Russian Federation","authors":"Dmitry G. Bachurin","doi":"10.18572/1813-1220-2022-10-23-24","DOIUrl":"https://doi.org/10.18572/1813-1220-2022-10-23-24","url":null,"abstract":"The article is devoted to the le al, economic and organizational aspects of value added taxation in the Russian Federation. The questions of the potential possibility of introducing the tax consolidation regime into the legal regulation of VAT in the Russian Federation are examined.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"16 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88225393","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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