Law of Compulsory Purchase

Now more than ever, it appears that both societal and political factors are supporting and stimulating student mobility in all its shapes and forms, most notably through various initiatives on the European level. The Bologna Process, the European Qualifications Framework and the Lisbon Recognition Convention are all examples of this commitment undertaken by the Member States of the EU as well as other European nations. However, upon taking a closer look at the practical reality, we see that many obstacles remain to exist. As EU law currently stands after the Forster and Morgan and Bucher judgments, mobile students do not have a right to maintenance grants, neither from their host state or their home state. Furthermore, the European Court of Justice has – albeit reluctantly – allowed an exception to the principle of equal treatment on grounds of nationality with regards to access to higher education in the Bressol case. Although the recent, somewhat more restrictive attitude of the European Court can be defended and perhaps even welcomed, it does illustrate the need for a discussion and potential action on the European level by the political institutions. This contribution includes a discussion of the recent ECJ case law on student mobility and some reflections on the desirability, feasibility and potential form and content of such future action.

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section. The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from January to April 2005. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.

Towards a Single Standard of Professional Secrecy for Supervisory Authorities – A Reform Proposal

The objective of this article is to present the most significant recent case law of the Court of Justice of the European Union (CJEU) related to the competition law. Firstly, focus is given to some recent CJEU case law in the antitrust area, i.e. the judgments dealing with the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). A special attention is paid to the most recent CJEU case law analyzing the distinction between the object and effect of the prevention, restriction or distortion of competition. Secondly, some significant State aid cases are dealt with, i.e. the cases related to the application of Article 107 TFEU. Although the CJEU case law has not recently undergone major changes in the competition law field, the article reflects the main trends towards the current jurisprudence and what challenges may be expected in the future.

In this article, the author, in light of the 60th anniversary of European Taxation, reflects on 60 years of State aid case law. In particular, he highlights the two ECJ decisions of 16 March 2021 in Commission v. Poland and Commission v. Hungary, wherein the ECJ determined that the Polish and Hungarian taxes at issue, which apply a progressive tax rate on turnover, do not contradict the EU State aid rules.

A recent court case decided by the District Court in The Hague regarding a captive insurance company involved in reinsurance activities seems to follow the current general approach of the Dutch tax authorities on captives. This article considers this decision in light of existing Dutch case law and the UK Dixons case. There is a striking difference in the approaches taken by the District Court in The Hague and the UK Special Commissioners concerning the Dixons case. Where the decision in the Dixons case focuses on the appropriateness of the transfer pricing method, the District Court in The Hague reclassifies the transactions under review. This article discusses these different approaches to captives. The issue will in particular be considered in the context of the OECD Guidelines.

This case list offers a guide to the European Court of Human Rights (ECtHR) case law pertaining to migration. While the case list does not cite every ECtHR decision related to migration, it offers a comprehensive overview of important instances of case law indicative of the ECtHR’s jurisprudence on migration. These are, for example, Grand Chamber decisions, or cases cited by the Court in its more recent case law. In addition to including key cases cited in the preceding chapters of this book, this list also includes cases identified in thematic case law guides of the ECHR and recent jurisprudence in the area of migration, notified by the ECHR in monthly updates. The cases are organised in thematic blocks, which in turn appear in the order in which they pertain to the different temporal stages of migration, from entering the destination country to the right to remain and the cultural and religious rights of long-term migrants.

Company Valuation: A Comparison of Economic and Legal Perspectives

It is a guiding principle of arbitration that each party must have a reasonable opportunity to put its case to the tribunal. Under English law, this principle is enshrined in section 33(1)(a) of the Arbitration Act 1996 and is expressed as a duty of the tribunal which must “act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent”. This article discusses recent English case law in order to identify the extent of the onus on the tribunal to afford the parties a reasonable opportunity to present their case, and, as a corollary, to identify the onus on the parties themselves and their counsel to ensure that their case is comprehensively set out and that their opponent?s case is comprehensively answered.

This chapter focuses on some central precepts of substantive review. The discussion begins with the meaning accorded to the concepts of law, fact, and discretion in EU law. This is followed by examination of the test for review for questions of law. The focus then shifts to review of fact and discretion. The test for review and the meaning accorded to it in the early case law is explicated. This is followed by an examination of the more recent jurisprudence, and it is shown that the EU courts have used the tests for review more intensively than hitherto, although there may be some modification of this in some recent case law. The final two sections of the chapter contain broader reflections on the standard of review emerging from the case law in relation to fact and discretion, respectively.

While interim measures have been available to parties in international arbitration for decades, recent years have witnessed an explosion in the number of requests submitted and decided. In the context of investment-treaty arbitration, this boom in interim measures decisions has brought a great diversity of substance, making a comprehensive look at the current state of interim measures both timely and necessary. This article is divided into four remaining sections, designed to appeal to practitioners, parties, and decision-makers alike. The second and third sections look to assist in the proper drafting of an interim measures request and order, by identifying and discussing current developments in the key institutional rules and legal standards. We start by addressing developments in the legal standards underpinning interim measures, which arise from institutional rules and case-law developments and involve some or all of the following factors: (1) urgency in the sense that the risk of harm or prejudice is imminent; (2) a threat of substantial or irreparable harm to rights or property capable of being protected by the tribunal; (3) prima facie jurisdiction over the subject-matter of the request; (4) prima facie establishment of a valid claim on the merits; and (5) the extent to which interim measures would burden the other party. Although the decision whether to grant interim measures is necessarily fact-specific, making a clear synthesis of the case law not always possible, a few threads have emerged in the recent case law, particularly regarding irreparable harm and urgency. Recent developments with respect to these two elements – which arguably contain the most ascertainable legal standards among the five – warrant practitioners’ attention, including the importance of changed circumstances for urgency, and the impact of the form of relief requested ( i.e. , non-monetary or monetary damages) on proving irreparable harm. The third section therefore …

Objective: This paper explores the legal and ethical frameworks that inform nursing practice and health care cultures. Using methodologies informed by critical race and feminist jurisprudence (also called ‘outsider scholarship’), images of nursing and the positive and negative effects of these images and their legal, moral and ethical impact on nursing practice, are explored. This exploration assists in exposing some of the power structures and assumptions which govern contemporary nursing practice and standards of care and which impact on factors such as workforce retention. Legality, morality and reality ‑ the role of the nurse in maintaining standards of care. Setting: Applies to all settings in which nurses’ practise. Subjects: Nurses, other health care professionals and patients. Primary argument: Examples from case law are used to illustrate the relationship between image and power and how these affect legal and moral frameworks and the realities of the workplace for nurses. This is done by examining the law, as a form of insider (whereby the world is described in terms of pre‑existing power structures) and outsider story‑telling (whereby stories are challenged to reflect experiences). Five dominant and recurrent images of nursing emerge from case law analysis. These have implications for: the way in which nurses respond to critical situations which involve the adoption of a moral stance; nurses’ legal and ethical status, and; the environment in which nurses’ practise. Conclusion: Each of the images of nurses described in this paper is still present in both recent case law and workplace practice. These images have deleterious effects, most particularly contributing to feelings of powerlessness in the workplace and affecting nurses’ ability to be ‘heard’ when patient safety is at stake. While some images give the nurse a degree of moral (and clinical) responsibility, there is no promise of power. Both the inability to influence patient care and an unmet need to feel valued and appreciated contribute to nursing workforce attrition. A complex mix of solutions needs to be implemented to achieve improved workplaces, patient outcomes and retention rates. The promotion of a safety and quality agenda; promoting strategies for self care; well developed clinical career paths; implementing clinical supervision, and introducing Magnet organisation reform, are among the important solutions for addressing these issues.

The chapter analyses the case law of the CJEU on national security and essential interests of member states security. It answers the following questions: what do the national security and essential security interests clauses in EU law actually mean, what is their content? What role do they play? What is the extent of discretion of the member states when applying those clauses? What are the requirements concerning an effective review of measures undertaken to protect security? The analysis leads to the conclusion that recent case law could be seen as the beginning of differentiation or stratification between clauses of public and national security. This case law is, however, contradicted to some extent by the interpretation of the ‘public security’ clause by the Court. Instead of demoting the public security to less crucial threats to ‘make room’ above for national security, the Court seems to continue to attribute to it fundamental importance (notably a threat to the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations). Also, as concerns the role of the national security clause, the difference between national and public clauses seems to be only quantitative, not qualitative. For the Court, the national security clause does not seem to be about the question of delimitation of competencies between the EU and the member states.

Recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) has declared practices involving the pushback of individuals, including those seeking asylum, to be illegal. This is a significant and positive development. This article examines the approaches taken in key cases before these two courts, comparing and reflecting on how they have framed pushbacks as a violation of fundamental rights and the procedural obligations that States have under international and European law. While both courts have ruled these practices to be in breach of applicable laws, their framing of the violations has differed. The ECtHR has focused on the fundamental rights that are threatened when individuals are pushed back across borders. In contrast, the CJEU has previously concentrated on the violations of procedural rules that occur during the forcible return of individuals. However, in the recent case of MA, the CJEU acknowledged that the breach of procedural rules inherent in pushbacks undermines access to effective protection, resulting in a denial of access to asylum. This situation constitutes a breach of Article 18 of the Charter of Fundamental Rights. This important development indicates a convergence in the approaches of the two courts, both condemning pushbacks as violations of individual rights and highlighting the necessity of the right to enter as an integral part of the effective right to asylum.

In Benedetto,the promoter of a pre-incorporation transaction argued that a deposit had to be returned to him when the transaction did not close. His reason was that there was language in the agreement to indicate that he was invoking the protection of subsection 21(4) of the Business Corporations Act (Ontario).The Court refused. While I agree with the ultimate result in the case, there are three basic issues that will be considered in this Comment. After laying out the reasoning of the Court of Appeal (in Part II), I turn to a fundamental concern that lies at the heart of my discomfort with this ruling, namely, my view that any deposit is inextricably intertwined with the contract that provides for it. This runs directly counter to the reasoning provided by the Court of Appeal (the focus of Part III). In Part IV, I suggest that there is a more direct route to deal with the issue of deposits in pre-incorporation transactions that use language that is reasonably considered a subsection 21(4) inclusion. Essentially my argument is three-fold. The first argument is one of contractual interpretation. Drawing upon both recent case law from the Supreme Court of Canada, as well as older case law from other courts, I suggest that a proper interpretation of the contract at issue (and others like it) would have led to a narrow interpretation of the language of the subsection 21(4) inclusion. Narrowly construed, the inclusion does not force the payment of the deposit, but also does not mandate its return. Second, the tort of deceit may also have a role to play here. I then suggest that there was in fact a third route that would have allowed the Court to refuse to return the deposit, namely, the law of restitution. Finally (in Part V), I will review the academic commentary that immediately followed the release of this judgment, suggesting that the Court of Appeal’s conclusion was problematic. I will suggest that the commentary, which criticizes the Court of Appeal, is itself flawed.