Shortcomings in the EU Merger Directive

Shortcomings in the EU Merger Directive PDF Author: Frederik Boulogne
Publisher: Kluwer Law International B.V.
ISBN: 9041167145
Category : Law
Languages : en
Pages : 434

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Book Description
The European Union (EU) Merger Directive removes certain tax disadvantages encountered by companies and their shareholders in the course of a restructuring operation. However, in spite of amendments and European Court of Justice's (ECJ) interpretations of its provisions, various shortcomings remain. This thoroughgoing analysis, broader and deeper than any prior work on the subject, addresses all the Directive's subtopics methodically, following the paragraphs of Articles 1-15 in their logical succession. The author analyses the points in which the Merger Directive falls short of attaining its stated objective, and he also examines how these shortcomings could be scaled. To do so, he tests the Merger Directive against its own objective, primary EU law (the fundamental freedoms and the unwritten general principles of EU law) and non-discrimination provisions in relevant treaties. Each of the following questions is addressed and responded to in depth: – Which entities have access to the Merger Directive and which entities should have access to it? – Which operations are covered by the Merger Directive and which operations should be covered? – Which tax disadvantages to cross-border restructuring operations does the Merger Directive aim to remove, which tax disadvantages have been actually removed, which tax disadvantages remain, and how should the Merger Directive be amended to remove the remaining tax disadvantages? – How tax avoidance should be combated under Article 15(1)(a) of the Merger Directive, which possible types of tax avoidance can be identi¬fied, and how the Merger Directive should be amended? – Which cases of double taxation does a taxpayer engaging in cross-border restructuring operations potentially encounter, and how they can be taken away by the Merger Directive? The key shortcomings that are identifi¬ed are: the Merger Directive’s objective is not stated precisely; minimum harmonisation does not lead to a common tax system; exhaustive lists are used as legislative technique; the Merger Directive does not add much to the outcomes reached through negative harmonisation; and the de¬finitions of qualifying operations are not fully aligned with corporate law. Chapter 6 contains a deeply informed and viable proposal for the amendment of the Merger Directive. This is the fi¬rst treatment not only to evaluate the Directive's effi¬cacy in detail but also to offer real solutions to its shortcomings. It will be welcomed by policymakers, judges, practitioners and academics, and the recommendations it contains are sure to affect ongoing amendments and jurisprudence on the Merger Directive.

Shortcomings in the EU Merger Directive

Shortcomings in the EU Merger Directive PDF Author: Frederik Boulogne
Publisher: Kluwer Law International B.V.
ISBN: 9041167145
Category : Law
Languages : en
Pages : 434

Get Book Here

Book Description
The European Union (EU) Merger Directive removes certain tax disadvantages encountered by companies and their shareholders in the course of a restructuring operation. However, in spite of amendments and European Court of Justice's (ECJ) interpretations of its provisions, various shortcomings remain. This thoroughgoing analysis, broader and deeper than any prior work on the subject, addresses all the Directive's subtopics methodically, following the paragraphs of Articles 1-15 in their logical succession. The author analyses the points in which the Merger Directive falls short of attaining its stated objective, and he also examines how these shortcomings could be scaled. To do so, he tests the Merger Directive against its own objective, primary EU law (the fundamental freedoms and the unwritten general principles of EU law) and non-discrimination provisions in relevant treaties. Each of the following questions is addressed and responded to in depth: – Which entities have access to the Merger Directive and which entities should have access to it? – Which operations are covered by the Merger Directive and which operations should be covered? – Which tax disadvantages to cross-border restructuring operations does the Merger Directive aim to remove, which tax disadvantages have been actually removed, which tax disadvantages remain, and how should the Merger Directive be amended to remove the remaining tax disadvantages? – How tax avoidance should be combated under Article 15(1)(a) of the Merger Directive, which possible types of tax avoidance can be identi¬fied, and how the Merger Directive should be amended? – Which cases of double taxation does a taxpayer engaging in cross-border restructuring operations potentially encounter, and how they can be taken away by the Merger Directive? The key shortcomings that are identifi¬ed are: the Merger Directive’s objective is not stated precisely; minimum harmonisation does not lead to a common tax system; exhaustive lists are used as legislative technique; the Merger Directive does not add much to the outcomes reached through negative harmonisation; and the de¬finitions of qualifying operations are not fully aligned with corporate law. Chapter 6 contains a deeply informed and viable proposal for the amendment of the Merger Directive. This is the fi¬rst treatment not only to evaluate the Directive's effi¬cacy in detail but also to offer real solutions to its shortcomings. It will be welcomed by policymakers, judges, practitioners and academics, and the recommendations it contains are sure to affect ongoing amendments and jurisprudence on the Merger Directive.

Shortcomings in the European Union Merger Directive : Lessons for Future Harmonization

Shortcomings in the European Union Merger Directive : Lessons for Future Harmonization PDF Author: G.F. Boulogne
Publisher:
ISBN:
Category :
Languages : en
Pages :

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Book Description
The European Union has recently demonstrated with the Anti-Tax Avoidance Directive (ATAD) that it can deliver harmonized measures in areas where controversies exist. With even further-reaching measures, such as the common consolidated corporate tax base (CCCTB) and the Financial Transaction Tax (FTT) (re)gaining momentum it is sensible to learn from the experiences with previous harmonization measures. One of them is the EU Merger Directive. This article addresses five broad shortcomings that have been identified in this directive and draws cionclusions from them. The lessons to be learned from the EU Merger Directive - and those would apply to any future harmonization measure - are, amongst others, that the objective of the measure has to be defined razor sharp, that minimum harmonization measures may still lead to distortions among the Member States, and that it should be crystal clear on which foundations certain demarcations are made.

The EU Merger Regulation

The EU Merger Regulation PDF Author: Alistair Lindsay
Publisher: Sweet & Maxwell
ISBN: 041404844X
Category : Law
Languages : en
Pages : 849

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Book Description
This is the 4th edition of The EC Merger Regulation - a detailed guide to the method of merger control in the European Union. Fully revised for 2012, this comprehensive text describes how the European Commission determines approval of a notified merger, thereby providing information and techniques to complete merger deals successfully for companies operating in the European Union

European Merger Control

European Merger Control PDF Author: Catalin Stefan Rusu
Publisher: Kluwer Law International B.V.
ISBN: 9041132597
Category : Business & Economics
Languages : en
Pages : 306

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Book Description
Twenty years of experience have inevitably brought to light challenges and tensions in the enforcement of the European merger control system. Some of these challenges have been faced, some have been solved and some remain latent. This very valuable study starts from the proposition that the EU has never fully acknowledged those fundamental challenges which relate to the rationale behind merger control in Europe. The author shows how the Commission's focus on adapting the rules of merger control to the economic realities of the future business environment, although designed with a view to facilitating European integration, has compromised attainment of legal certainty, transparency and welfare enhancement. In its detailed evaluation of the 'future market structure prediction process' embedded in European merger control policy, this book approaches two rock-bottom, far-reaching questions: In what ways does merger control promote consumer and societal welfare? Is the Commission able to correctly predict the outcome of any given concentration transaction? These considerations take the reader through a deep and searching analysis that calls into question the very credibility and transparency of the system, leading to alternatives which promise a new clarity of purpose and procedure. The author describes how these recommendations can be integrated into the functioning framework of the European project. Taken fully into account along the way is a wide spectrum of relevant source material, including the following: applicable articles and chapters of the founding and subsequent European Treaties; secondary European legislation concerning competition and merger activity; domestic competition laws; guidelines, notices and action plans; competition law reviews, statements of intentions; draft legislative attempts; speeches on the enactment and purpose of merger control; Member States' views concerning European merger control as expressed during Council negotiations; officially available concentration-related statistics; and a wide-ranging literature review covering both the legal and economic sides of merger control. Throughout, the author substantiates theoretical assertions with case law examples, clearly exposing doctrines arising from such cases as Continental Can, Phillip Morris/Rothmans and the Airtours, Schneider and Tetra Laval trilogy. A unique feature of the analysis draws on the author's personal experience while working for a Brussels competition law firm. This book is a remarkable compound of academic guide to the roots and rationales of the European Merger Control System, practical guide to the day-to-day intricacies of merger control enforcement, and 'raw' guide for decision makers and merger control law enforcers. It will be of immense value in all three contexts.

Cross-Border Mergers within the EU

Cross-Border Mergers within the EU PDF Author: Harm Van den Broek
Publisher: Kluwer Law International B.V.
ISBN: 9041140158
Category : Law
Languages : en
Pages : 816

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Book Description
As a result of the Regulation on the European Company and the Tenth Council Directive, all Member States are obliged to finally implement the merger arrangements of the 1990 Fiscal Merger Directive, forcefully raising the question of the tax consequences of cross-border mergers. This book is the first to focus in such an extended way on the meaning of the 1990 Directive’s tax provisions in this context. With unique and valuable insights drawn from legislative history documents never examined before, its detailed commentary leads to sound and practical recommendations on cross-border mergers within the EU from a tax law perspective. This book also examines to what extent taxation as a result of mergers is in line with the freedom of establishment and the free movement of capital. Clearly analysing the dangers of advance taxation, double taxation, double non taxation, and additional tax claims as a result of a merger, the book deals with such core elements as the following: the aims of cross-border merger relief schemes; the aims of cross-border merger relief schemes; transfer of losses; exit taxation; taxation of dividend withholding tax; employee participation rights; tax standing of creditors of a transferring company; and taxation of foreign shareholders. With its new insights on tax aspects of mergers within the European Union, this book will be of special value to merging companies and their shareholders, to tax administrations and courts, and to legislators who must properly implement the Merger Directive.

Does EU Merger Control Discriminate against Small Market Companies?

Does EU Merger Control Discriminate against Small Market Companies? PDF Author: Mika Oinonen
Publisher: Kluwer Law International B.V.
ISBN: 9041142355
Category : Law
Languages : en
Pages : 448

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Book Description
Although the question posed by the title of this book has generated considerable debate, the essential issue remains open and largely blurred. While some believe that there is no so-called ‘small market problem’, others discern discrimination against small market companies (i.e., companies with a strong position in their home markets but a modest position in the European and global markets) and a consequent need for changes in competition law. The author of this enormously helpful work here sets the stage for meaningful discussion by analysing the EC Merger Regulation’s objectives, economic foundations, and application practice to present a reasoned view of the issues that can be considered relevant for such a discussion. Considering their effect on the ’small market problem’, the author scrutinizes such factors as the following: the Commission’s methodology for delineating relevant markets in merger assessments; unnecessary prohibition caused by overestimation of the market power of small market mergers; erroneous approval of cases that should actually be prohibited; impact of the so-called ‘Harvard’ and ‘Chicago’ schools of competition theory and their key policy implications; process-related alternative views of competition and new synthesizing approaches; relevant criteria for a proper analysis of market power; concentration measures and market shares; barriers to entry; price and profitability analyses; and product definition v. geographic definition of markets. In a final chapter, the author presents some tentative conclusions, normative in nature, concerning the problem and the relevant issues relating to it. As the first in-depth analysis of the issues that are actually involved – with its particular diagnosis of the assessment of market power in considering the relevant issues for the problem – this study brings into salience the terms of the debate on the ‘problem’, and thus takes a giant step forward towards defining what needs to be done. Competition lawyers, policymakers, and academics in Europe and elsewhere will find the discussion of great value.

Abuse under the Merger Directive - A different approach to the concept of 'valid comercial reasons'

Abuse under the Merger Directive - A different approach to the concept of 'valid comercial reasons' PDF Author: Dinis Tracana
Publisher: Leya
ISBN: 9724067785
Category : Law
Languages : pt-BR
Pages : 247

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Book Description
This thesis, entitled "Abuse under the Merger Directive - A different approach to the concept of `valid commercial reasons'", deals with the issue of tax avoidance within the scope of the Merger Directive, where the Author attempts to determine the concept of `abuse' in the context of EU cross-border restructuring transactions and deal with some practical issues arising from the application of the Merger Directive's anti-abuse provision. In order to reach the conclusions sought by the Author, a first analysis regarding the importance of `abuse' in the tax field and the financial, social and legislative consequences of these conducts driven by tax avoidance or tax evasion purposes will be undertaken. Terminological issues concerning the meaning of the concepts of tax mitigation, 'tax evasion', 'tax fraud' and 'tax avoidance' and limitations to the application of domestic anti-abuse previsions will also be addressed. This study then analyses the requirements for the application of the Merger Directive and the underlying purpose for the tax deferral system, followed by a critical review of the ECJ's case-law on the Merger Directive's anti-abuse rule. The Author then determines the scope of the said rule, through the establishment of general criteria for the finding of `valid commercial reasons', as well as criteria for the application of presumptions of abuse. Finally, this thesis approaches several practical issues arising from the application of article 15 (1) (a) of the Merger Directive, namely whether Member-States are entitled to partially apply the tax deferral system, if there is a connection between qualifying transactions and the maintenance of the holding period for the purposes of the Parent- Subsidiary Directive, whether Member-States are also entitled to apply irrebuttable presumptions of 'abuse' and what may be the consequences for the concept of `abuse' deriving from the last recommendations of the Commission. Key words: Merger Directive; tax avoidance; abuse; restructurings; reorganizations.

Merger Control in the EU and Turkey

Merger Control in the EU and Turkey PDF Author: Fevzi Toksoy
Publisher: Kluwer Law International B.V.
ISBN: 9403543043
Category : Law
Languages : en
Pages : 264

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Book Description
As a country on the way to integration with the European Union (EU), Turkey has been following EU principles in establishing and improving its merger control regime, as well as overall competition law, keeping pace with changes in relevant EU legislation and case law. This book presents, for the first time, a description and analysis of the relationship between the EU and Turkish merger control law and practice. The second edition of the book considers the legislative changes that occurred in 2020-2021, including the reform of the Turkish Competition Law which introduced the significant impediment to effective competition (SIEC) test into the Turkish concentration control. The authors—all three, both practicing lawyers and academicians in Turkey—focus on comparing substantive, procedural and jurisdictional issues and draw parallels on their regulation in the two jurisdictions. These matters include the following: determining whether a transaction shall be regarded as a notifiable merger, hence be subject to control; financial thresholds used for allocating jurisdictions; extraterritoriality of merger control; relationship between the SIEC test and the dominance test; determination of the relevant market; techniques used for assessment of horizontal and non-horizontal mergers; notification requirements; procedural duties of competition authorities in relation to remedies; third-party rights; gun-jumping fines and other sanctions for failure to comply with merger control requirements; and peculiarities of assessment of mergers in the Big Data world. Each chapter provides an overview of the respective issues in the EU and Turkey, projecting a clear understanding of the main similarities and differences in the two regimes. A notable feature is an in-depth analysis of applicable case law concerning each issue, with most of the Turkish decisions available in English for the first time. The book’s comparative approach will prove to be of great value. With its clear answers to questions about what transactions are subject to merger control, what criteria are used in assessing those transactions, and the main issues that a foreign company should be aware of while merging with another foreign company with effect in Turkey and/or EU, the book will be of immeasurable value for lawyers and their business clients dealing with multijurisdictional merger cases. Interested academics and policymakers will also find much here to attract their attention.

The European Commission's Jurisdiction to Scrutinise Mergers

The European Commission's Jurisdiction to Scrutinise Mergers PDF Author: Morten Broberg
Publisher: Springer
ISBN:
Category : Law
Languages : en
Pages : 420

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Book Description
No major business or law firm can afford to disregard the European Commission's power in the control of mergers. Since the Council of Ministers adopted the EC Merger Regulation in 1989, The power of the European Commission has increased steadily. The scope of the Merger Regulation now occupies a central role in many mergers taking place both inside and outside the European Community. To come within the scope of merger regulation and thus within the Commission's jurisdiction, a merger must possess a `community dimension'. Despite the careful definition of this term in the Merger Regulation itself, The concept has created problems in many cases. The European Commission's Jurisdiction to Scrutinise Mergers offers a comprehensive, up-to-date analysis of all aspects of the community dimension concept. The most thorough examination of the Commission's jurisdiction to examine mergers under the EC Merger Regulation, The European Commission's Jurisdiction to Scrutinise Mergers serves as a valuable guide for businesses, their legal advisors, and competition law enforcers in both the Commission And The Member States.

EU Merger Control

EU Merger Control PDF Author: Ioannis Kokkoris
Publisher: OUP Oxford
ISBN: 9780199644131
Category : Law
Languages : en
Pages : 0

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Book Description
Economic issues play a pivotal role in competition enforcement. Integrating economic and legal analysis throughout, this work provides expert coverage of both the substantive and procedural law relating to merger control in the EU, considering EU and national case law. The key substantive and procedural issues in the US are also considered.