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This article is concerned with source-based approaches to the international tax challenges raised by the digitalization of the economy. It focuses, in particular, on what, in the current debate, is often referred to as a possible set of short-term or interim measures. After introducing the context from a broader socio-historical and business perspective, the article addresses the current complex tax policy agenda, aiming at outlining possible policy models to be derived from the OECD and EU “platforms for proposals”, as well as from selected domestic experiences. In doing so, the article addresses a set of micro-research questions that appeared very relevant to the author in the current climate of uncertainty surrounding the taxation and digitalization agenda. First, the article is concerned with the need to conduct an exposition of terms by introducing some clarifying distinctions against the backdrop of the very blurred lines between the various policy options under consideration. In particular, it attempts to shed light on how a short-term or interim approach could actually be defined and in tracing some boundaries between equalization levies and a withholding tax-based approach. This exercise allows for some possible proposals to be set forth regarding how the concerned measures may be made more easily compliant with the pre-existing international legal framework and more attuned with their inherent policy objectives, also bearing in mind the need to minimize distortions as far as possible. This normative perspective is inherently tied to another set of ‘micro-research questions’ addressing how the policy and legal planes interact in this area and to what extent such initiatives might be pursued in accordance with a coherent set of policy goals in a way that would not prove disruptive for the existing legal framework of reference. In attempting to do so, however, the author realizes that there may be a clear trade-off between the above different sets of concerns, so that the undertaking of any action would need to implicitly express a fundamental option in that regard. Such findings are substantiated against the backdrop of some key unilateral experiences (including regional ones, as per the recent Directive proposal on the common system of a digital service tax) that have so far been enacted or ventilated, assessed in particular in the light of the recently released Interim Report on the Tax Challenges Arising from Digitalization.
In the recent Enteco Baltic case, the Court of Justice of the European Union confirmed the application of the VAT exemption on the import of fuel from Belarus to Lithuania, which was then dispatched or transported to other Member States, without adhering to all the formalities provided for in Article 143(2) of Council Directive 2006/112/EC (the VAT Directive) as amended by the Council Directive 2009/69/EC (Directive 2009/69). Thus, the Court, once again, grants priority to material conditions over formal conditions.
While the bitcoin is reaching all pockets and headlines, the regulatory debate is also at its peak. Following brief analysis of the blockchain mechanism, this article focuses on the regulatory approaches taken in the EU as well as in single Member States and third countries around the world. Regulatory intervention seems to be appropriate and could build on the points of convergence of national and international policy makers.
The purpose of this article is to answer the following question: What are the qualifications required of a viable compensation scheme for drug-related injuries in the future? To answer this question the no-fault systems in four Nordic states are examined and compared to other systems fully or partially arranged on no-fault principles in Europe and outside Europe. Sweden, Norway, Denmark and Finland all operate similar no-fault schemes with minor differences. ( The fifth Nordic Country, Iceland, is not operating a separate drug insurance scheme, but drugs are dealt under the general product liability regulations and that is why Iceland is not discussed in this context. ) These schemes have helped avoid expensive and time-consuming court proceedings usually required when liability law is applied. By examining especially the viability and qualifications of the Finnish compensation scheme operated over the past 30 years some key qualifications for an optimal scheme can be identified. The conclusions drawn then are that this kind of a no-fault compensation system could well be recommended across the EU for an alternative mechanism for resolving drug-related injury compensation cases. For a future compensation model the author proposes a mix of the Nordic, the Japanese and the French models.
Résumé: L’objectif de cet article est de répondre à la question suivante: Quelles sont les qualifications requises d’un régime viable d’indemnisation pour blessures liées à l’usage de médicaments dans l’avenir? Pour répondre à cette question, nous examinons les régimes basés sur l’absence de faute dans quatre pays nordiques et les comparons à d’autres systèmes entièrement ou partiellement basés sur des principes d’absence de faute en Europe et à l’extérieur de l’Europe. La Suède, la Norvège, le Danemark et la Finlande utilisent tous des principes similaires d’absence de faute, avec des différences minimes. Ces régimes ont permis d’éviter les procédures judiciaires coûteuses et longues qui sont généralement nécessaires en cas d’application du droit de la responsabilité. En examinant spécialement la viabilité et les qualifications du régime finlandais d’indemnisation appliqué pendant 30 ans, on peut identifier quelques qualifications- clé pour un régime optimal. Selon les conclusions qui ont pu alors être tirées, cette sorte de régime d’indemnisation basé sur l’absence de faute pourrait être préconisé à travers l’Europe comme mécanisme alternatif permettant de résoudre les cas d’indemnisation de blessures liées à l’usage de médicaments. Pour des modèles futurs d’indemnisation, l’auteur propose une combinaison des modèles nordique, japonais et français.
Society moves fast and constantly. Despite the persistence of gender roles in marriages, other factors including heightened job market access and economic independence for women, as well as greater bargaining power in marriage and the evolution of no-fault divorce, have increased the role of party autonomy in family matters – and therefore, caused a shift in the complex debate between state policy interest in family matters and individual private autonomy. As a consequence of these significant societal changes, there has been an increased use of premarital agreements in contemplation of divorce. Through these agreements, before they marry the prospective spouses determine the consequences of a future breakdown, i.e. the rights that would otherwise arise at the time of the dissolution of the marriage or the death of one of the spouses. International prenuptial agreements (agreements with significant contacts with numerous countries) raise relevant questions with regard to jurisdiction, applicable law, and recognition and enforcement. This article conducts a comparative study between the conflict of laws system in the US and the European Union with regard to prenuptial agreements in contemplation of divorce, focusing on questions of jurisdiction. The advisability of choice of forum clauses and their limits will be at the heart of this study.
Résumé: Les sociétés évoluent vite et de manière constante. Malgré la persistance des rôles entre homme et femme dans le mariage, d’autres facteurs tels que l’accès accru des femmes au marché du travail et leur indépendance économique, le pouvoir de négociation élargi au sein du mariage et l’évolution du divorce sans faute, ont renforcé le rôle de l’autonomie des parties dans les affaires familiales – et par là, ont marqué un changement dans le débat complexe entre d’une part les intérêts d’une politique étatique dans les affaires familiales et d’autre part l’autonomie privée individuelle. Par l’effet de ces importants changements de société, on a vu apparaître un usage accru de contrats de mariage conclus en considération d’un divorce. Ces contrats permettent aux futurs époux de fixer avant leur mariage les conséquences d’une rupture future, par ex. les droits qui, autrement, naîtraient au moment de la dissolution du mariage ou du décès de l’un des époux. Les contrats de mariage internationaux (contrats comportant des rapports significatifs avec plusieurs pays) entraînent des questions importantes en ce qui concerne le tribunal compétent, le droit applicable, la reconnaissance et l’exécution. Cet article contient une étude comparative entre le système de conflit de lois aux Etats-Unis et dans l’Union européenne à propos des contrats de mariage conclus en vue d’un divorce, en mettant l’accent sur des questions de compétence juridictionnelle. L’opportunité de clauses de choix du for et leurs limites est au centre de cette étude.
The regulatory approach to tech companies in the internal market is in the process of being rebalanced from maximizing economic benefits to minimizing social and political costs. The article analyses this trend, and the reasons for the change. It recapitulates the main economic and political benefits, as well as the costs of establishing a European market for online activities, then discusses the outcome of the positive integration in this domain before and after the 2015 Digital Single Market Strategy. The ECJ’s stance in the recent cases on Uber is explained, followed by an elucidation of shortcomings in the legal arguments underpinning these decisions. The conclusions emphasize that the current approach to the Digital Single Market – both for positive and negative integration – might cripple the internal market profoundly. If so, the cleavage between countries able to take advantage of the digital revolution and those unable to do so will widen.
On 27 June 2017, the Court of Justice handed down a judgment in another fiscal State aid case concerning a tax exemption granted by Spain to a religious congregation performing educational services (Case C-74/16 Congregación de Escuelas Pías Provincia Betania). The Court of Justice’s judgment is interesting – and relevant for future fiscal state aid cases – for a number of reasons, which are discussed in the present article. Firstly, the case adds to the growing body of case law regarding the interpretation of the selectivity requirement in tax matters. Secondly and more importantly, the case provides insight into what constitutes an ‘economic activity’ and an ‘undertaking’ for state aid purposes, and specifically deals with the role played by the receipt of remuneration in this respect. Finally, the case may shed light on an issue of growing importance, i.e. the interaction between an instrument of public international law (a treaty) and various aspects of EU state aid law.
Where national tax legislation comes within the scope of EU law, it must be compatible with the principle of the rights of the defence, as developed by the Court of Justice of the European Union in its case law and found in the Charter of Fundamental Rights of the European Union. The rights of the defence proclaimed by the European Convention on Human Rights (ECHR) is also applicable in tax matters when a tax dispute involves a criminal charge. For the European taxpayer it may not be clear if and when the principle of the rights of the defence can be invoked or how the rights of the defence in EU law and the rights of the defence of the ECHR influence domestic tax proceedings. Broadly speaking, customs duties, harmonized indirect taxes and to some extent direct taxes fall under the EU rights of the defence, while the ECHR applies to tax matters in which punitive measures occur or criminal prosecution takes place.
With an expected date of publication to occur in 2018, the new European Union (EU) Regulation on common rules in the field of civil aviation (hereinafter referred to as the New Basic Regulation) will consolidate the international dimension of the European Aviation Safety Agency (EASA), opening up interesting perspectives to its coordinating role. This article will briefly describe the evolution of the international framework of EASA since the founding Regulation in 2002 and offer a summary of the expected regulatory changes. (The article refers to the proposed Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations -(EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91, Interinstitutional file 2015/0277 (COD), Brussels, 15 June 2018, publicly available and last consulted on 18 July 2018, at http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf.)
The International Charter on Space and Major Disasters is a voluntary partnership among national space agencies that provide free satellite earth observation data and information to disaster-affected States. As a nonbinding, multilateral instrument, the Charter has grown in its members, reach and application over its seventeen-year lifespan. To date, the Charter has been activated over 550 times and has provided data to 119 countries. This article provides a discussion on the current legal status of the Charter and the effectiveness of the Charter as a global governance mechanism in light of its mandate and ongoing operations. The article draws from previous reports and scholarship on the Charter, data collected through semi-structured interviews with Charter members and users, and the results from a survey distributed to Charter end users which aimed to gather information relating to the users’ experience accessing and using Charter products, as well as information relating to the extent to which the Charter contributions improved the end users’ existing disaster management capabilities. Overall the article finds that as a soft law instrument and governance tool, the Charter has been highly effective in both a legal and operational context and may provide a useful example for international cooperation in other global policy areas.
This article examines the relationship between the Carbon Offsetting and Reduction Scheme for International Aviation Emissions (CORSIA), agreed in October 2016 by the International Civil Aviation Organization (ICAO), and the European Union Emissions Trading System (EU ETS) established by the EU-ETS Directive.
Prompted by the new space activities, the Government of Finland has promulgated its first national space law setting conditions for operators concerning inter alia licensing, registration and liability for their space activities. This article looks at the legislative process leading to the Space Act and provides an overview of the Finnish Space Act in the light of the international obligations of a State. Moreover, issues concerning sustainable uses of outer space and international soft law instruments in the context of national licensing will be discussed.
The historical circumstances that underpinned the predominance of agents have long since passed, such that the relationship is susceptible to the claim that it no longer amounts to ‘genuine’ agency. This proposition represents a tilt in the traditional philosophy of the commercial relationship between travel agents and airlines: that as ‘agents’ the entities could not compete, and are thereby excluded from the operation of competition laws. This article considers the influences underpinning this change, analyses the High Court of Australia’s decision in Australian Competition and Consumer Commission v. Flight Centre, and provides a contemporary understanding of agency in the online world.
This article attempts to assess the Single European Sky (SES) from a competition policy and competition law perspective. While air traffic management (ATM) has been viewed as a traditional and firm example of the exercise of public powers, as a result of technological developments, sectoral EU legislation and the relevant activities of the European Commission, this assessment may no longer be valid and certainly needs to be reconsidered. The European ATM scene is in dynamic change, inspired by EU policies and driven by legislative acts. While a recent report of the European Court of Auditors highlights several problematic aspects of the SES, new European and global markets of ATM services emerge, traditional state functions are earmarked for privatization, powerful industrial partnerships try to shape future markets, public functions are subjected to industry governance and the whole sector is increasingly at risk of technological disruption by tech firms such as Google and Facebook, interested in developing automatized solutions for the separation of drones and possibly traditional ATM. At least some of these new developments may be relevant from the competition perspective. It will be argued that competition policy and competition law are not only relevant to the ATM sector, but they need to be considered when making political and business decisions and adopting new legislation. Focussing on the most relevant sectoral developments, including provisions of the reinvented SES 2 sectoral legislative proposal of the European Commission, the article will argue that overlooking competition policy and competition law in the digital SES may lead to anti-competitive consequences in the reorganized ATM sector.