Reform of the ultra vires rule: A personal view.
Company Lawyer 987 REFORM OF THE ULTRA VIRES RULE: A PERSONAL VIEW S.N. Frommel. Legislation: Council Directive 68/151 on company law Art.9 Abstract: Paper submitted to the Department of Trade and Industry in September 1986. *11 The following paper by Dr SN Frommel [FNa1] was submitted to the Department of Trade and Industry in September 1986. The consultative document was published at the end of July. The Consultative Document: A Critical Appraisal The consultative document issued by the Department of Trade and Industry (DTI) consists of a report prepared by Dr D Prentice, preceeded by a short introduction. The great respect I have for Dr Prentice does not, I hope, preclude a friendly but critical appraisal of his paper. Ultra vires and powers of directors I believe the DTI should have asked Dr Prentice to conduct an inquiry into 'the powers of directors to bind a company in transactions with third parties' which is the wider and more important issue; the 'ultra vires rule' is no more than an aspect of the problem. In Great Britain, the board of directors has the power to bind a company in transactions with third parties. These powers, which are conferred upon the directors collectively, while acting as a body, are subject to a double limitation. First, the directors may not act outside the objects of the company, as set out in the memorandum of association
Predatory pricing strategies in the European union: A case for legal reform.
PREDATORY PRICING STRATEGIES IN THE EUROPEAN UNION: A CASE FOR LEGAL REFORM Until now, in-depth analyses concerning predatory pricing have, to a large extent, been scarce in European Union Competition Law, and relevant questions been rarely dealt with by the competent authorities and courts in the Union; criticism produced by European academics or practitioners on the subject has also been rather infrequent. [FN1] By contrast, on the other side of the Atlantic, academic activity, mainly initiated after 1975, the year of publication of a seminal scholarly article attempting to delineate an appropriate standard to cope with this issue, [FN2] has not only been rich, but has also furnished American judges with the appropriate legal and economic basis on which they grounded their numerous holdings. Given this lack of experience in the E.U., would it be wise to assume that a potential incorporation in its Competition Law system of the American standards on predatory pricing may be successful, and under which circumstances? Would, perhaps, the different conditions currently prevailing in the two markets undermine the accuracy of such incorporation? And, in any case, may such differences be properly reconciled with this proposal? This article suggests that an adoption of the American conclusions on predatory pricing issues may indeed be successful. To prove the truth of the
Law of the European Union
Law of the European Union Coursework. Identification of problem - UK in violation of treaty Application of legal rules and legal authority. The European Community is founded upon treaties. The transfer of sovereignty or powers from the member states to the institutions of the community is limited to specific policies and specific procedures to be found in the treaties. In this assignment I will be discussing how community law can be used in times of breaches by member states and what action individuals may take. Supremacy of EC Law. EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas. The legal order of the European community order is based of the twin pillars of supremacy and direct effect. The principle of supremacy is the notion that if there is ever a clash with Community Law and National Law, the community law will always prevail over supremacy law. By creating the community, the member states consented to transfer to it, certain powers of theirs and to restrict their national rights. One of the first cases to come before the European Court of Justice that distinguished the relationship between Community and National law was - Costa v ENEL [1964] E.C.R. 585. In this case the Court of Justice discussed how community law is a unique system that is able to override any conflicting legislation. By 1964
The rule against the horizontal direct effect of directives should be abandoned" Discuss.
The rule against the horizontal direct effect of directives should be abandoned" Discuss. This essay is mainly concerned whether or not the rule against the horizontal direct effect of directives should be abandoned. The analysis will be made in three major stages; the first stage will show the application of direct effects and its distinction from direct applicability; the second will analyse the distinction of vertical-horizontal direct effect and finally an analysis will be made on the rectification of the problem and on a possible extension of it. INTRODUCTION The EC Treaties, together with a number of international agreements formally amending these treaties, form the constitution of the Community and are the ultimate source of legal authority within the Community system. One of their functions is to lay down the powers of Community institutions to pass secondary legislation. These are regulations, directives and decisions. In addition, they can make recommendations or deliver opinions.1 REGULATIONS-DIRECTIVES Regulations, the most common form of secondary legislation, are, according to Article 249(ex 189) EC, as amended by the TEU2, "binding in their entirety and directly applicable in all Member States". Therefore since they become a part of the domestic law of the member state automatically and do not require further incorporation into national legislation, they
Is there sufficient democratic accountability in the EC legislative process?
"Is there sufficient democratic accountability in the EC legislative process?" Introduction Democratic accountability essentially relies upon giving citizens' a say in policy making. So, in terms of the EC legislative process, how are European Union's citizens involved either directly or indirectly in the legislative process? To determine whether there is sufficient democratic accountability, careful consideration must be given to the institutions involved in the legislative process, how they are formed and the procedure by which the legislation is to be implemented. The three main bodies involved in the process of legislating are: - Commission - European Parliament (EP) - Council. * Commission- each Member State nominates one individual (commissioner) whose nomination is then agreed amongst the Member States. * European Parliament- following the introduction of direct elections in 1979, Members of the European Parliament (MEP) are elected at national level. As a result, MEPs are effectively responsible to their electorate. * Council- consists of representatives from the Members States. Appointment is usually a consequences of their position within their Member State, they must be 'at ministerial level, authorised to commit the government of that Member State'I Ways in which it would appear that there is insufficient democratic accountability It is frequently
European Union - When and to what extent are directives 'directly effective'?
European Union - When and to what extent are directives 'directly effective'? The European Community has had a decidedly significant impact upon the legal systems of the Member States. It was established in 1957 by the Treaty of Rome, the main objectives being to develop stability throughout Europe by means of encouraging a closer union between member states. It has evolved a long way since having developed its own institutions and an autonomous legal system, with laws that bind each member state ultimately enabling it to regulate the rights and obligations of its members. It achieves this primarily through Treaties, a primary form of EC legislation that forms the basis of all other European Law. However the effect of EC treaties is unlike that of any other international agreement as the latter bind only states at an intergovernmental level and do not of themselves give rise to rights or interests which the citizens of the states can have enforced before their own national courts even if they are designed for the protection of individuals. Although the text of EC treaties do not indicate that their provisions will be any different, the ECJ has taken its own view as to the nature and effect of treaties known as the doctrine of 'direct effect.' This jurisprudential concept means that individuals are able to derive rights directly from community law, which can be enforced in
The Second Directive
European Company Law Coursework, Q. 1 - The Second Directive The EC Commission transmitted original Second Council Directive proposal1 to Council in March 1970. ECOSOC2 and European Parliament Opinions followed in May and October 1971 respectively under consultation procedure, European Parliament exercising little influence3. It was amended in October 1972 to accommodate acceding UK, Ireland and Denmark and adopted on 13 December 19764 within European Company Law harmonisation program, art. 54(3)(g) EC Treaty, to coordinate protection of members and others' interests in companies. British lawyers influenced drafting significantly. Provisions on financial assistance for company's purchase of own shares and their redemption5 were modelled on Companies Act 19486, while some capital maintenance provisions experienced UK caselaw influence7. Many provisions originated from continental legal systems, particularly German AktienGesetz 19658 - disclosure for creditors' confidence9, employee participation facilitation10. Controversial UK common law necessitated amendment to rules on minimum capital, public/private company distinction, consideration for shares, distribution, pre-emption rights11. Commission's suggestion to assimilate British private companies with continental public companies, as with accounting12, was ultimately dropped. Villiers argues that not covering private
This article will critically assess the protection of privacy in the electronic communications sector according to European Directive 2002/85/EC and the resultant privacy and Electronic Communication (EC Directive) Regulations 2003.
Introduction: As a direct result of the explosion in the provision and availability of telecommunications services in the 1980s and early 1990s, concerns arose over the privacy of individuals regarding the use and operation of telephones and related devices. Such concerns have been multiplied with the advent of digital technology, the availability of calling line identification, the explosion of internet trading, mobile phones and new services and technologies such as text messages, location data and cookies. Although data protection legislation applies to the electronic communication sector in the same way as it does to other industries, the European Union considered that extra safeguard were required. The most recent EU legislation in this rapidly changing area of commercial life is the directive concerning the processing of personal data and the protection of the privacy in the electronic communication sector (2002/58/EC) ( the Directive on Privacy and Electronic Communication).The UK implemented the Directive on Privacy and Electronic Communication by way of secondary legislation namely the Privacy and Electronic Communications ( EC Directive) regulation2003. The Electronic Privacy Directive acknowledges that electronic communications over the internet open new possibilities for users, but also new risk for their personal data and privacy therefore, it seeks to ensure
What are the outer limits of Article 28 EU?
What are the outer limits of Article 28 EU? The free movement of goods is one of the 'four freedoms' set out by the Treaty of Rome, to aid economic integration, with the aim to achieve a common market, between member states. They were designed to establish the basic principles of a custom union between Member States1. Articles 28 EU to 31 EU have been essential in achieving single market integration2. Essentially this was created to serve as a wealth maximization mechanism in the Community and to protect the domestic market, according to the economist's point of view and acted as a form of protectionism, following the long history of war in Europe3. The free movement of goods has been embodies in Article 28 EU, which provides " [q] uantitative restrictions on imports and all the measures having equivalent effect shall be prohibited between Member States"4. This provides two measures, quantitative restrictions and measures having equivalent effect to a quantitative restriction, which the ECJ has had much discretion in the broad interpretation of the case law concerning the discrimination of goods, as well as distinctly and indistinctly applicable measures. This essay will outline the development of Article 28, and examine the acceptance of the ECJ's decisions by Member States in order to achieve an integrated Community. It will then go on to examine the courts approach to
FREE MOVEMENT OF GOODS WITHIN EU
FREE MOVEMENT OF GOODS WITHIN EU Introduction European Union(EU), formerly called European Economic Community(EEC) or European Common Market, came into existence on March 25, 1957 at the conclusion of the Treaty of Rome or EEC Treaty or latterly called EC Treaty . The main objective of this Treaty was to promote a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of standard of living and closer relations between the states belonging to it. The principal means of achieving this objective is to establish a Common Market by allowing goods to move freely within EU States. This free movement of goods will promote efficiency in production because it will permit producers in different countries to compete directly with each other. To follow this free movement of goods notion, it is necessary to remove all internal trade barriers; physical, technical and fiscal barriers, which create discriminatory restrictions, between EU States. As a result, all EU Member States must refrain from imposing all kinds of trade restrictions on imports, exports or goods in transit between themselves. However, although it has been nearly half century since the creation of the EC Treaty, its free movement of goods notion is still on the way of journey. It has not yet reached the star. The goods still could not enjoy