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Vol 22 No 11 Nov/Dec 2017

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The Law of Contract Damages

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Direct Investment, National Champions and EU Treaty Freedoms: From Maastricht to Lisbon


ISBN13: 9781849461085
Published: August 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



Low stock.

Within the EU, the legal dimension of trade in goods and, more recently, of trade in services have gained clear contours. This is less true for cross-border direct investments.

Within the system of the fundamental freedoms, cross-border direct investments may fall within the scope of the freedom of establishment (Art.49 TFEU, 43EC), the free movement of capital (Art.63 TFEU, 56EC) and sometimes the freedom to provide services (Art.56 TFEU, 49EC). The free movement of capital has been the last fundamental freedom to be endowed with direct effect. The investment potential of Sovereign Wealth Funds makes this a very topical subject.

The ECJ has started to develop the full potential of the free movement of capital and the freedom of establishment only recently. This has raised a number of important new questions, including how the two freedoms relate to each other, and how to balance the individuals' rights to market access with the Member States' competence to regulate in the public interest.

In particular, the use of state measures to protect strategic or alleged public interests selectively, or to foster national champions, will be considered. Under settled case law, it suffices that a measure renders the exercise of the freedom "less attractive" to find an infringement of the free movement rules. Potentially this opens the door for a broad review of the appropriateness of all non-harmonised mandatory rules contained in general national laws.

There is also a general question of when free movement of capital and freedom of establishment may have horizontal effect, a matter raised by the Viking case. [Horizontal application of the fundamental freedoms could lead to the exercise of control over private arrangements in many areas, including company law if they have a tendency to impede, or dissuade, market access by investors from other Member States.] The particular situation of third country investors also has to be considered, insofar as they may benefit from the free movement of capital but not from the establishment and services freedoms.

Recent developments in EU company law are discussed, notably those concerning simple cross-border relocation of businesses as well as those regulating take-over and mergers. Overall the book analyses the role of the market and the role of the state with regard to direct investment, delineates the competences of the EU and the Member States in this field and places the debate in the larger context of international direct investment.

[Focussing on recent developments, cases and debates,] the book also looks at the changes made to the applicable rules by the Treaty of Lisbon, including the inclusion of foreign direct investment into the Community's trade policy, thus providing an overview of this cutting-edge issue and a reflection on the rationales that should guide the evolution of this field of law.

Subjects:
EU Law
Contents:
1. Introduction
I. The Major Questions
II. International Norms?
III. The Treaty and Direct Investment
A. Direct Investment – A Treaty Freedom?
B. Restrictions on Treaty Freedoms
C. Justifications for Restrictions
D. Who is Competent to Introduce Restrictions on Investment?
E. Treaty Freedoms and Competition Law
IV. The Structure of this Work
2. The Free Movement of Capital
I. Introduction
II. Pre-Maastricht Regime
III. Maastricht Treaty Framework
IV. The Meaning of 'Capital' and of 'Restriction' in the Eyes of the Court
V. Conclusion
3. Freedom of Establishment
I. Treaty Provisions
II. Recent Case Law
III. Conclusion
4. Justifications of Restrictions to the Treaty Freedoms: For National Champions? For Network Industries? For Others?
I. Treaty Provisions
II. Public Security
III. National Champions
IV. Control of Ownership
V. Company Law
VI. Conclusion
5. Direct Cross-Border Investment and Merger Control
I. Merger Control Regulation
II. Commission Powers
III. Further Cases
IV. Endesa
V. Inaction
VI. Conclusion
6. Cross-Border Movements by Companies
I. Treaty Articles
II. Five Cases
III. Immigrants and Emigrants
7. Company Law, Cross-Border Mergers and Takeovers
I. Which Way?
II. Harmonising Company Law
III. Business Logic
IV. The Societas Europaea
V. The Mergers Directive
VI. The Takeover Bids Directive
VII. Conclusion
8. Direct Investments from Third Countries
I. Introduction
II. The Establishment Chapter or the Capital Chapter?
III. The Capital Chapter
A. Lisbon Amendments
B. Looking at the Capital Chapter Alone
C. Looking Now at the Trade Chapter
D. Looking Now at Both the Capital and the Trade Chapters
IV. Justification of Restrictions Towards Third Countries
V. Competence Under Other Treaty Chapters
A. Internal Market
B. Association Agreements etc
C. The Energy Charter Treaty
VI. Conclusion
9. Sovereign Wealth Funds
I. The Gapp
II. A Definition?
III. Why Fear?
IV. Conclusion
10. Bilateral Investment Treaties
I. Introduction
II. Extra-EU Bits
III. Intra-EU Bits
IV. Conclusion
11. The End—But Another Beginning

Series: Modern Studies in European Law

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To be published April 2019
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The Principles of Corporate Sentencing in EU Law ISBN 9781849466509
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Collective Rights in Europe: A Comparative Study of Safeguards and Barriers ISBN 9781849463690
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The Fundamental Rights of Companies ISBN 9781841136899
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The EU Better Regulation Agenda: A Critical Assessment ISBN 9781509917334
To be published May 2018
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To be published March 2018
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To be published February 2018
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£29.99
Fundamental Rights and EU Internal Market Legislation ISBN 9781509920006
To be published February 2018
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£32.99
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To be published January 2018
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£29.99
The European Union Under Transnational Law: A Pluralist Appraisal ISBN 9781509911523
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The European Union in International Organisations and Global Governance ISBN 9781509918379
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ISBN 9781509914685
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EU International Relations Law 2nd ed ISBN 9781849463225
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The Legal Reasoning of the Court of Justice of the EU ISBN 9781849463232
Published January 2013
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Toward a Prosecutor for the European Union Volume 1 A Comparative Analysis (eBook)
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Empowerment and Disempowerment of the European Citizen ISBN 9781849462358
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Federalism in the European Union ISBN 9781849462426
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Hart Publishing
£85.00
Federalism in the European Union (eBook) ISBN 9781847319982
Published September 2012
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Children and the European Union: Rights, Welfare and Accountability ISBN 9781841137650
Published August 2012
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The Constitutional Dimension of European Criminal Law (eBook) ISBN 9781847319548
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The Constitutional Dimension of European Criminal Law ISBN 9781849461764
Published May 2012
Hart Publishing
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Public Liability in EU Law: Brasserie, Bergaderm and Beyond (eBook) ISBN 9781847318190
Published November 2011
Hart Publishing
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Public Liability in EU Law: Brasserie, Bergaderm and Beyond ISBN 9781849461337
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£85.00
The Cyprus Issue: The Four Freedoms in a Member State under Siege ISBN 9781849460958
Published March 2011
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£70.00
The Impact of EU Law on Minority Rights ISBN 9781841138725
Published January 2011
Hart Publishing
£60.00
The Employment Relationship: A Comparative Overview ISBN 9781841134208
Published December 2010
Hart Publishing
£40.99
£100.00
Legitimacy in EC Cartel Control ISBN 9781849460057
Published February 2010
Hart Publishing
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Principles of European Constitutional Law 2nd ed ISBN 9781841138220
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Hart Publishing
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EU Criminal Law (eBook) ISBN 9781847317261
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EU Criminal Law ISBN 9781841135854
Published March 2009
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Regulation of the State in Competitive Markets in the EU ISBN 9781841134970
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£38.99
Free Movement, Social Security and Gender in the EU ISBN 9781841136226
Published July 2007
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£80.00
EU Food Law: Protecting Consumers and Health in a Common Market ISBN 9781841134987
Published March 2007
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£49.99
The National Courts' Mandate in the European Constitution ISBN 9781841134765
Published March 2006
Hart Publishing
£100.00
European Union Law and Defence Integration ISBN 9781841134406
Published October 2005
Hart Publishing
£80.00
National Remedies Before The Court of Justice ISBN 9781841133959
Published December 2004
Hart Publishing
£65.00
Partnership Rights, Free Movement, and EU Law ISBN 9781841134772
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Soft Law in European Community Law ISBN 9781841134321
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Publication Abandoned