Company Law and Corporate Governance
"The knock on effect of Enron on European Initiatives in the area of Corporate Governance has been immeasurable and promises to revitalise the whole of the company law harmonisation agenda" Discuss Background and Introduction "Company Law and Corporate Governance are right at the heart of the political agenda, on both sides of the Atlantic"1. The extent of Enron's ruin was enormous, being the largest American company ever to file for bankruptcy2. Justifiably the tragedy sparked an enormous United States Senate Investigation and it was shown that directors of Enron intentionally ignored high risk accounting procedures that led to the energy company's collapse3. After the Enron misfortune, few people doubted the need to re-examine corporate governance globally. Corporate Governance is a contentious issue for lawyers, accountants, politicians and businesses alike4 and in the last decade corporate governance has been a priority on the agenda of several governments and has been firmly under the spotlight. Corporate scandals such as Enron have exposed companies' susceptibility to mismanagement, conflicts of interest and corruption5. As a result, corporate governance has moved up from being a mere exercise to becoming a considerable concern for companies. Corporate Governance is an incredibly extensive area of Company Law, and so for this reason it would be impractical to
European Court of Justice has consistently refused to award EU law protection.
The European Court of Justice has consistently refused to award EU law protection to cases it defines as purely internal to a Member State (Maduro, 2000). This non-involvement by the ECJ has brought about numerous problems and criticism. Maduro, (2000) suggests that the concept of purely internal situations has been mainly used to justify the lack of protection granted by EU law to numerous cases of reverse discrimination where a state does not extend to its own nationals the same treatment it is required by EU law to award to national of Member States. The ECJ first established its approach to reverse discrimination and purely internal situations in the cases of Knoors1, Auer2 and Saunders3. Purely internal situations were first given voice in Knoors but were applied foremost in Saunders. It was held by the ECJ that there was no factor connecting Saunders with any of the situations envisaged by Community law. Therefore Miss Saunders was prevented from relying upon the former Article 48 (now 39) to challenge a binding order which excluded her from part of the national territory for a period of three years. A comparable conclusion appeared in Morson4, where two Dutch nationals wished to bring their parents who were non EC members into the Netherlands to live with them. In the judgement it was stated that their parents would have been covered by Article 10, Regulation 1612/68
Parliamentary Supremacy as the dominate characteristic of political institutions
The constitutional theorist A.V Dicey summarised Parliamentary Supremacy as "the dominate characteristic of political institutions", "the very keystone of the law of the constitution."i "The principle of parliamentary sovereignty means neither more nor less than this....the right to make or unmake any law whatever and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament."ii The magnitude of such an ideal on democratic society can be undisputed, but to explore its relevance today it is necessary to investigate its history and functional mechanisms. The supremacy of Parliament was initially formed by the 1688 Bill of Rights. This followed a period of history known as the "Glorious Revolution." The function of the Bill was to provide dilution of the sovereignty of the monarch, following the forced abdication of James II. It was a time of upheaval and religious division. The power shift towards the sovereignty of parliament aimed to provide a more democratic solution, with representation by the people's representatives. Parliamentary supremacy gives parliament, (which can be summarised as the 3 pillars of the House of Commons, the House of Lords and the monarchy,) the ultimate authority for the creation of law. However, this creates a division between those who create the Acts (Parliament)
Case Critique R. (on the application of Countryside Alliance) v Attorney General. There were two appellants (H and E) and they appealed against a decision ( EWCA Civ 817) that the Hunting Act 2004 was neither incompatible with the European Con
In this unit I have been asked to critique the case of 'R. (on the application of Countryside Alliance) v Attorney General'. I am going to start by stating the material facts of the case and relevant case history. There were two appellants (H and E) and they appealed against a decision ( EWCA Civ 817) that the Hunting Act 2004 was neither incompatible with the European Convention on Human Rights 1950 nor inconsistent with the EC Treaty (Nice). The Act prohibited the hunting with dogs of certain wild mammals, including foxes and hares. H included those involved in hunting for their occupation or livelihood, and landowners who either permitted hunting across their land or managed their land for that purpose. E included Irish dog breeders who had formerly sold their dogs in the United Kingdom, and UK providers of livery services and hunting-based holidays for those visiting from other EU member states. The Appellants argued that the hunting ban infringed their rights under Art.8 of the Convention as it adversely affected their private life, cultural lifestyle, the use of their home. They submitted that the Act infringed their rights under Art.11 to assemble and associate to hunt foxes, and interfered with their property rights under Protocol 1 Art.1. They also argued that the Act subjected them to adverse treatment, on the grounds of their "other" status under Art.14
The Court of First Instance in Jego Quere
Robert Charles Alexander (054643848) - M100 LL.B (Hons.) Law - Level Two 2 January 2007 European Union Law - Assignment: Q3: "The Court of First instance in Jego Quere found that the right to an effective remedy, drawn inter alia from the Charter of Fundamental Rights, was inadequately protected by the model of judicial protection developed over decades since Plaumann. But was it open to put things right? Weatherill, Cases and Materials on EU Law, 7th edition, p.266. In the light of this statement, critically appraise European Community law on the aspect of standing, 'individual concern', evaluating the rulings of the European Courts and the respective Opinions of Advocate General Jacobs in Jego Quere and UPA v Council". Introduction This is a question about: a) the rulings of the European Courts in the three cases of Plaumann & Co v Commission of the European Economic Community1, Unión de Pequenõs Agricultores v Council2 and Jégo-Quéré et Cie SA v Commission3; b) the comments made in relation to these cases by Advocate General Francis G. Jacobs4 and his opinions therein; and c) the interpretation and subsequent application of Article 2305 of the Treaty of the European Union. In order to critically appraise the above issues it will be necessary to first look at the system of justice in the European Union (EU) and the details of the three cases - albeit briefly -
What is the meaning of the term 'measure equivalent to a quantitative restriction' for the purposes of Article 28 EC?
Samantha Nicholson Seminar Leader - Harm Schepel European Law - LW511 What is the meaning of the term 'measure equivalent to a quantitative restriction' for the purposes of Article 28 EC? Article 28, whilst appearing relatively clear on first reading, has proved problematic and therefore produced a string of case law and discussion, which continues on today. The Article states "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.".1 This initially seems very clear in its implication. No Member State can restrict the quantity of imports from other member states. It is in the second part, the measures having equivalent effect (MEQR's) that the problems arise. In order to define the term 'measure equivalent to a quantitative restriction' one needs to trace the problems and decisions arising from this issue. This can be discussed in three different sections. Firstly, the definition of an MEQR as it stood in the cases prior to Keck2, and Directive 70/50. Secondly the changes created by the decision in Keck and other cases which followed this judgement. Finally, there are the decisions post Keck, and the fact that they have largely regressed to the decisions taken before this case. MEQR's can essentially be split into two categories; those that directly or indirectly discriminate against imported goods, and
Consider the significance of the court's judgment in Case C-376/98 'Tobacco Advertising'  ECR I-8419 for the community's legislative powers.
2. Consider the significance of the court's judgment in Case C-376/98 'Tobacco Advertising'  ECR I-8419 for the community's legislative powers. On October 19th 1998, the Federal Republic of Germany brought an action for the annulment of a directive relating to the advertising and sponsorship of tobacco products. This case gave the court an opportunity to consider the legislative powers the community may or may not exercise. The German government brought a complaint before the Court of Justice on several grounds, the basic of which, was Article 100a1 of the Treaty was not the appropriate legal basis for the Directive. Article 95 prescribes that: "The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administration in Member States which have as their objective the establishment and functioning of the internal market". This means that directives can be approved if there is a need of harmonising the law in order to establish or improve the functioning of the internal market. If that is true, the issue is genuinely a European one. If not, it should remain under the competence of national governments. The German Government disputed the fact that the main argument of the directive was a public health
Introduction: Whether or not it is possible for a reference to be made in this case with reference to relevant EC Treaty provisions and decided cases is one part of the problem which needs to be addressed in the matter. The next part of the problem is to critically explain the purpose and effect of Article 234 Jane not being able to access publicly funded childcare services is a matter to be considered in relation to Art. 234 - i.e. the validity and interpretation of acts of institutions of the Community and the UK's responsibility in effecting this Decision. Art. 234 has been important in the development of landmark cases such as Van Gend en Loos and determining that the ECJ is not acting as an appellate court but simply ruling on a point of EC law. The responsibility of the national court is to use the information provided by the ruling to decide a case. As a result of case law the EU's definition of a court or tribunal has been addressed by the ECJ. The ECJ has tended to provide interpretation based on teleological and purposive approaches. A court or tribunal for the purposes of Article 234 EC is determined by Community, not national, law. Even if the body or tribunal is not regarded as a court or tribunal under its own national law, it may be a court or tribunal under Art 234 EC if it meets certain requirements. In Case 246/80 Broekmeulen  the ECJ
Law with respect to the importing of Citizen Band CB radios.
The UK Government has imposed a (fictitious) absolute ban on the import of all Citizen Band CB Radios, irrespective of their origin, on the basis that they may be used for immoral purposes. The sale and use of CB Radios has not however been outlawed in the UK. Although the manufacturers of CB Radios in the UK do not enjoy much of the market share they do exist. Ms. Richardot, a French exporter of CB Radios, enters into a contract to deliver 200 CB's to Ms. Haggis in Scotland. On arrival at Aberdeen docks, Customs Officers refuse entry to the radios. Advise Ms. Richardot and Ms. McHaggis on the validity of the UK measure and the means available to challenge its validity. The first step in reaching a conclusion is to understand what has taken place, as in this case a ban, how it is achieved by the UK and on what grounds. We are told that a ban exists and on the grounds of immoral purposes. I will first look into why bans are created and the effects they have. Since the entry into force of the EC Treaty, one of the main aims of completing the internal market has been the abolition of quantitative restrictions and the measures having equivalent effect which constitute barriers to trade within the EU. However the abolition of such restrictions is not sufficient to guarantee the free movement of goods within the common market, as there are other barriers to trade. These are
The least one can expect from a Court is that it be consistent and promote legal certainty. If the Court of Justice decides that directives only impose obligations on Member States and only after the period for their transposition has expired, liti
"The least one can expect from a Court is that it be consistent and promote legal certainty. If the Court of Justice decides that directives only impose obligations on Member States and only after the period for their transposition has expired, litigants, especially private litigants, would be able to rely on that. They should not have to meander their way through obscure doctrines to second guess whether the Court might find some way to give effect to a directive prior to the transposition deadline or to make it produce effects detrimental to individuals." DISCUSS The inherent need in any system for there to be legal certainty is a sentiment, which has long been expressed by academics alike, seen perhaps most influentially by Albert Venn Dicey, in his analysis of the rule of law. He stated that to do otherwise, would be to govern arbitrarily. This essay will seek to explore how the European Court of Justice (ECJ) has adapted new rules, contrary to what they have previously stated, on the ability to give effect to directives and whether they have perhaps entered into the 'political thicket', which contravenes Montesquieu's doctrine of separation of powers. The initial part of the assertion makes reference to judgements of the Court and Treaty Articles. The definition in Article 249 shows that: directives have distinct objectives, in that they are 'binding as the result to