Hana Horak

Freedom of Establishment: VALE Case—Direction for New Rules: Dreams or Reality?

Freedom of establishment, as one of the fundamental market freedoms at European market, is fully achieved within natural persons while, when discussing the freedom of establishment for companies, there are still some doubts. The main problem arises from the fact that different Member States apply different principles to determine which company law applies to the company and that different restrictions of the freedom of establishment for companies exist because of the discrepancies between the Member States’ company laws. These problems brought up the idea of the so-called Fourteenth Company Law Directive, whose goal should be the regulation of the cross-border transfer of the companies’ seat. At the moment, the most useful way of regulating that question is still the European Court of Justice’s (ECJ’s) case law. The newly established companies do not face right of establishment problems, while they may be incorporated in any Member State. They will be incorporated in the country where they think that the corporate regime is the most advantageous. Once the company is registered, freedom of establishment guarantees the possibility of companies’ seat cross-border transfer. Authors analyze the last ECJ judgment in the area of company law and freedom of establishment—the judgment in the VALE case. The importance of the judgment is obvious through its introduction of solutions contained in recommendations for the Fourteenth Company Law Directive. The VALE judgment is certainly one step closer to this Commission initiative.

Cross-Border Mobility, Supranational Companies and Employee Participation: No Chance for Harmonisation

Cross-border activities of the companies and regulation of cross-border mergers at the European Union internal market has been and still is a problem concerning employees’ participation. The basic and not easily solved problem is the application of freedom of establishment and its limitations when taking into account change of company ‘nationality’. Special attention must be paid to the cross-border mergers of companies or forming of supranational companies. The transfer of company and contract from the current to the new employer will occur and affect the status of employees. It is not easy to fulfil requirements regarding the full achievement of mobility opportunities at the EU level and to balance between differences in Member State national laws through the implementation of the directives.

CROSS-BORDER TRANSFER OF THE COMPANY SEAT: ONE STEP FORWARD, FEW STEPS BACKWARD

Cross-border transfer of the company seat for more than decade was and still is hot and unresolved topic in EU Company Law. Freedom of establishment is indisputable cornerstone of EU company law and Internal Market enshrined in Articles 49 and 54 of the Treaty on the Functioning of the European Union (TFEU) but still the company’s cross border mobility is unsolved. The company transfer of the seat is closely connected with different Member States legal tradition in relation with the two different “seat theories” that apply. By the practice of the European Court of Justice both seat theories “the real seat theory” and “the incorporation theory” are proclaimed as in line with the EU law. Nevertheless, the process of cross border transfer of the seat occurs as compelling problem for the cross-border company mobility. In most Member States at the moment the cross border transfer of the company seat requires the winding-up of the company and establishing the new one in the other Member State. This procedure leads to the loss of legal and business continuity and national approaches to this issue differ. The Member States intention is to protect shareholders, creditors and employees and they justify restrictions on these reasons. After a long and quite successful journey of the European Court of Justice judgments in favorem of the EU Internal market and with VALE case on the top, there was European Parliament initiative for a proposal for 14th Directive with an aim to regulate cross border transfer of seat. The initiative is still not realized. After the ECJ judgment in Case VALE where the “importance to continue the economic activity” was enshrined there is new European Court of Justice case Polbud that deals with cross-border transfer of the company seat. The authors will examine new developments in the area of EU company law with accent on cross border transfer of the company seat and analysis of the case Polbud.

The Current Challenges for EU Company and Financial Law and Regulation

European company and financial law and regulation have been evolving over time along with business and financial practices. The resulting ‘social licence’ established by company and financial law and regulation aimed to balance the granted privileges of limited liability and share transferability with the corporate social contribution to economic development and employment. Recent transformations driven by shareholder value and financialisation have been challenging this balance of interests between stakeholders (including employees and shareholders) and society. The EU institutional framework may respond to these challenges by reaffirming the centrality of the enterprise as a going concern. On this basis, corporate accountability and responsibility may be enforced to make ongoing corporate affairs accountable and responsible for their contribution to economy and society. Ongoing corporate capacity to cope with social and environmental responsibilities may be assured along with the fair and sustainable remuneration of stakeholders, including shareholding investors, and a fair tax contribution. The EU institutional design and policy mix may be organised to respond to this comprehensive set of corporate dimensions. Here the most relevant fields to be reconsidered include: enterprise groups and corporate social responsibility; financial reporting and transparency; financial investment and asset management.

Challenges of Personalized Medicine: Socio-Legal Disputes and Possible Solutions

We are living in an era of epic transformation and advancement of medical science and technology, which allows us to gather comprehensive information about a person’s health and predict and even prevent a disease. The focus on personalized or individualized medicine presents new challenges, not only in the fields of medical sciences, biotechnology, and nanotechnology but also in the fields of social law and economy, where the consequences of medical activities are manifested. The existence of technically available and possible methods of diagnostic and treatment raises the question whether there could be a constitutionally guaranteed fundamental right of access to them. What consequences would the introduction of personalized medicine in compulsory health insurance systems have? Is it possible, would it destruct or reconstruct the essential features of compulsory health insurance? These are just some of the issues this paper aims to address.

ELCHINOV CASE: NEW ISSUES, NEW MEMBER STATES, NEW PROBLEMS

After the series of ECJ judgments which were dealing with healthcare services, it is the Elchinov judgment which gave the summary of all relevant ECJ healthcare case-law and introduced the provisions of the Patients´ Rights Directive. The first generation of judgments where ECJ ruled within the question of the definition of healthcare services (Luisi and Carbone case, Grogan case) was followed by the ECJ judgments in cases dealing with the patients asking for the reimbursement of costs from the Member State of affiliation for medical treatment gained in the Member State of destination (Kohll case, Decker case). The main restrictions for the freedom to provide healthcare services recognized by ECJ is the national legislation that doesn´t guarantee the patient the same remuneration for the service received abroad as the remuneration that he is entitled to if the healthcare is received in the Member State of affiliation. Since the EU Member States apply different rules on reimbursement, the ECJ ruled that patients should not receive less that they would receive in their Member State of affiliation (Vanbraekel case). The authors in article analyze the ECJ judgment in Elchinov case and its impact on the Patients´ Rights Directive and new Member States regulation in the area of healthcare. The Patients´ Rights Directive can be foreseen as a result of abovementioned ECJ case law. Its objective is to establish a framework for cross-border healthcare, to set the rules that simplify the patient access to healthcare in another Member State and to define what kind of treatment the patients are entitled to in another Member State

Experience with the ICN Recommended Practices in Croatia's Merger Reforms and Legal Framework

The Government of the Republic of Croatia, on the proposal of the Council for Protection of Market Competition, enacted the regulation on notification and concentration assessment criteria. Croatian Competition Act - CCA (2003) stipulates the rules and the system of measures for the protection of competition, regulates the powers, duties and the organisation of the authorities entrusted with the protection of competition, as well as the procedure for the implementation of this Act.

The New Block Exemption Regulation and Croatian Competition Law

The EU Commission has swayed away from the voice of industry by adopting an economic approach to the assessment of agreements under EU competition rules. These new rules have brought about some radical changes. The key factor for determining whether an agreement can be exempted will now be the level of the combined market share of the parties to the agreement /market share threshold/ and whether an agreement contains a prohibited restriction on competition list of hard core restrictions/. The New Block Exemption Regulation 2790/99/ lays down the basic rules on when and how distribution agreements can be exempted from Article 81 EC Treaty prohibition. Distribution agreements are regarded as anti-competitive, because they prevent competitors from entering into a specific distribution territory or product range. On the other side, they promote distribution and help manufacturers to enter into new markets. These agreements are very important for the functioning of the economy. The Block Exemption Regulation has been adopted for exclusive distribution agreements, selective distribution agreements, exclusive purchasing agreements and franchising. The new Regulation provides similar legal framework to the American one .The Law on the Protection of Market Competition of Croatia is based on the experience with the EC Competition Law and is in line with its Article 81. This law shows that in Croatia, the importance of the competition law as a part of economic law has been recognized since 1995. The Law sets the basis for the balancing of disadvantages and benefits for certain types of agreements (including distribution agreements) which, although they restrict competition to a certain extent, have to be considered as useful and efficient in the business sense. Also, there has been a revision of the Croatian Commercial Act , which has integrated the distribution agreements in the Croatian legal system. Due to all these positive changes and having in mind that Croatia is approaching the European economic integration, special attention must be paid to any legislative changes in theEU. For a further development of the Croatian competition law, the harmonization with this new Regulation will be a great challenge. Special attention must be paid to the way this new Regulation, together with an economic analysis, will be accepted in EC law and practice, because long after the new rules will have been introduced, many people in industry may remain puzzled by the complexity of these radical changes.