Suchergebnisse

This book investigates in depth the compliance of the financial services legislation of Estonia and Poland with the free movement of capital provisions of European Union law. A sample of the financial services legislation from each of three further European Union Member States is assessed for compliance with these rules, in the light of the conclusions drawn from the comprehensive studies. General comments and recommendations are made in respect of the free movement of capital and of services

One misleading mantra in the Brexit debate is that the EU's single market freedoms were inseparable. This article takes a micro-legal research approach in examining the question: to what extent would free movement of capital be available to the UK when the UK leaves the EU's single market? The free movement of capital is the only one of the EU's fundamental freedoms that extends beyond Member States to also apply to third countries. Like other fundamental freedoms, it extends beyond equal treatment to require market access. This article argues that free movement of capital would still be available to the UK post-Brexit, as all restrictions to free movement of capital are prohibited unless justified under EU law. It argues that as long as the post-Brexit legal context in the UK remains comparable with that of the EU, the justifiable derogations to free movement of capital would not apply against the UK. Thus, the mantra that the EU's single market freedoms were inseparable is misleading.

The current practice of foreign currency control in Russia is based on the mechanisms that were formed during the period of the Soviet administrative and command economy. The approaches applied in Russia to foreign currency regulation and foreign currency control (repatriation requirements, closed list of operations for crediting funds to foreign accounts) create barriers for the Russian business and citizens, significantly complicating the procedure for their foreign economic activity. At the same time, the existing restrictions, in conditions when the requirements for the sale of a part of foreign currency earnings and other restrictions on the movement of capital are not applied, do not ensure the achievement of macroeconomic goals, which are laid down in the preamble of the act "On foreign currency regulation and foreign currency control". The foreign currency act in Russia does not currently ensure the achievement of the goals for which it was adopted. In practice, the act solves the tax objectives and the tasks of combating the legalization of criminal revenue. Developed countries and members of the Organization for economic cooperation and development (OECD) do not use similar mechanisms to control the movement of funds. At the same time, foreign countries are actively developing instruments to control cross-border cash flows within the framework of legislation on combating money laundering and financing of terrorism, as well as in the framework of improving the mechanisms of international exchange of financial information for tax purposes. The authors propose a reform of the current foreign currency regulation aimed at the abolition of currency restrictions and the development of alternative mechanisms for controlling the cross-border movement of funds by improving the international exchange of tax information, including automatic one, as well as improving the effectiveness of measures to combat money laundering in international trade.

Introduction -- i Bridging the Gap between the State and the Market in the Context of Capital Liberalisation -- ii Academic and Societal Relevance -- iii Structure of the Book -- 1   Capital Liberalisation at the International and the European Level -- i Capital Liberalisation at the International Level -- A  The Theoretical Controversy about Capital Liberalisation -- B  The International Legal Framework Governing Capital Liberalisation -- ii Capital Liberalisation at the European Level -- A  A Historical Overview -- 1 Treaty of Rome: The Early Tentative Steps -- 2 The Council Directives -- 3 The Maastricht Treaty -- B  The Current Legal Framework -- 1 The Scope of Article 63 tfeu -- a) Territorial Scope -- b) Material Scope -- i) Difference between Capital Movements and Payments -- ii) Definition of Capital Movements -- c) Relationship with the Other Freedoms -- 2 Direct Effect of Article 63 tfeu -- 3 Restrictions -- 4 Derogations -- a) Treaty-based Derogations -- i) Article 65 tfeu -- ii) Derogations Applicable only to Capital Movements to/from Third Countries -- b) Overriding Reasons in the Public Interest -- 5 Proportionality -- 2   Free Movement of Capital and Privatisations -- i The Theoretical Underpinnings of Privatisation -- A  Definition of Privatisation -- B  The Theoretical Controversy about Privatisation -- ii Privatisation and EU law -- A  The Politico-economic Context -- B  The Legal Framework: The Principle of Neutrality under Article 345 tfeu -- 1 The 'Maximalist Shield' Interpretation -- 2 The 'Reductionist Shield' Interpretation -- 3 The 'Sword' Interpretation -- 4 Assessment of the Three Interpretations -- 3   Free Movement of Capital and Golden Shares -- i Understanding the Theoretical Controversy Surrounding Golden Shares -- A  Definition of Golden Shares -- B  Golden Shares as Control Enhancing Mechanisms -- C  The Principle of Proportionality between Ownership and Control -- D  Varieties of Capitalism: Liberal Market Economies v Coordinated Market Economies -- E  Corporate Governance and EU Law -- F  The Takeover Directive and the Golden Shares Case Law -- ii Legal Issues Arising from the Golden Shares Case Law -- A  The Horizontal Application of Article 63 tfeu in the Golden Shares Case Law -- 1 The Concept of 'Horizontality' in Constitutional Law -- 2 Horizontal Effect in EU Law -- a) Defrenne: Horizontal Effect of Equal Pay -- b) Walrave & Koch and Bosman: Horizontal Effect of Free Movement of Workers - Federation Exercising Regulatory Powers -- c) Angonese: Horizontal Effect of Free Movement of Workers - Discriminatory Private Conduct -- d) Viking and Laval: Horizontal Effect of Freedom of Establishment and Services - Trade Unions -- e) Dansk Supermarked, Van de Haar and Fra.bo: Horizontal Effect of Free Movement of Goods -- f) ams and Egenberger: Horizontal Effect of the Charter -- 3 Horizontal Effect of Article 63 tfeu -- a) The Case Law Regarding the Horizontal Effect of Article 63 tfeu -- b) Scholarly Opinions on the Horizontal Effect of Article 63 tfeu -- c) Granting horizontal effect to Article 63 tfeu -- B  Public Interest Objectives as Justification Grounds in the Golden Shares Case Law -- 1 The Objective of Safeguarding Energy Supplies in the Event of a Crisis as Covered by Public Security under Article 65 (1) (b) tfeu -- 2 The Objective of Ensuring Availability of the Telecommunications Network in the Event of a Crisis as Covered by Public Security under Article 65 (1) (b) tfeu -- 3 The Objective of Guaranteeing a Service of General Interest as an Overriding Reason in the Public Interest -- 4 Article 106 (2) tfeu -- 5 Protection of Workers and of Minority Shareholders -- 6 Economic Rule -- C  Proportionality in the Golden Shares Case Law -- D  The Definition of 'Capital Restrictions' in the Golden Shares Case Law -- 1 The Concept of 'Restrictions' in the Free Movement of Goods -- a) The Pre-Keck Case Law on meeqrs -- b) The Keck Ruling and the Introduction of the Concept of 'Selling Arrangements' -- c) The Post-Keck 'Market Access' Test -- 2 The Application of Keck in the Other Freedoms (Workers, Services and Establishment) -- 3 'Selling Arrangements' in the Golden Shares Case Law -- 4 In Search of a Refined Test for 'Capital Restrictions' -- Conclusion -- Bibliography -- Index.