Business Law Course. Department of Business and Law, University of Siena Dr Gabriella Gimigliano, Senior Researcher in Business Law

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1 Business Law Course Department of Business and Law, University of Siena Dr Gabriella Gimigliano, Senior Researcher in Business Law

2 STUDY ADVICE Revise (and study) your class notes and, in case of doubts, please come to my office during the office time; At the end of each week, study the papers I have explained (see, business law webpage); Read carefully the papers (a one-shot reading is not enough!), take notes of the words you do not know and check them in the dictionary as well as take note of any complex concepts. You can talk about them with your colleagues, you can ask a question in class or, much better, during office time. Whenever the power point presentations (uploaded on the webpage) refer to an article provision, please find it and read it. In the dedicated webpage are uploaded the most important «supporting material», for example, the consolidated version of TEU and TFEU.

3 Business law Course Organization Mid-Term 1: 10th November, at Mid-Term Instructions and Contents: Mid-Term 1 covers 1) any exercises and activities done in class from the beginning of the course up to 3rd November; 2) any topics explained in class from the beginning of the course to 3rd November; 3) the first 5 papers (uploaded on the dedicated webpage) in the box "Study Material": 2012 Action Plan, 2015 Capital Market Union Action Plan, EU law as a legal system, The legal interpretation at the European Court of Justice, Undertaking 4) power point presentations uploaded on the dedicated webpage Both attending and not-attending students can do mid-terms. During mid-terms, the students are not entitled to use dictionaries, study or supporting material, the Internet, books, class notes, European treaties, case law, power point presentations and any other documents.

4 Business law Course Organization On 15th November, business law class is held at (not at 16.00). In November, 15 (at 6.00 p.m.) 16 (at 6 p.m.), there will be two seminars on Islamic Finance, Pluralism and Business Law. Lecturer: Dr Valentino Cattelan, Ph.D. In banking law and law of financial markets (University of Siena), visiting scholar at Oxford University. He works as Senior Researcher, Saudi-Spanish Center for Islamic Economics and Finance, IE Business School (Madrid). Routledge Publisher is going to published his book Islamic Social Finance: Entrepreneurship, Cooperation and the Sharing Economy. On 17th November, business law class is held at 12.00, instead of 8.30.

5 Business law Course Organization On 17th November, at Seminar: The Freedom of Establishment in the European Union. Lecturer: Dr Nicola de Luca, Associate Professor in Business Law at the Second University of Naples and lecturer in business law at Luiss University in Rome. Among other things, He is the author of a book «European Company Law» published by Cambridge University Press in On 21st November, at 4.00 p.m., Dr Eugenia Macchiavello gives a lecture on New legal forms and new financing opportunities for SMEs in Europe. Dr Eugenia Macchiavello holds a Ph.D. Corporate Governance, University of Genoa and an LL.M. from the New York University School of Law. She works as Adjunct Professor in Banking Law, Department of Business, University of Genoa. She has recently published a book on Microfinance and Financial Inclusion: the challenge of regulating alternative forms of finance (Routledge, 2017).

6 EU Companies/Firms and the Freedoms European Companies/Firms enjoy the freedom of capital, establishment and services when they meet the following conditions (art. 54 TFEU): a) Companies and firms are legal entities, regularly formed according to the civil law of a Member State; b) Companies and firms have a stable connection within the Union: have their office, main centre of administration or principle place of business in a country belonging to the European Union

7 EU Companies and Freedom of Capital, Services and Establishment Freedom of services (art. 56 TFEU): the company/service provider and the customer are based in different Member States and the company/service provider does not set up a branch in the Member State of the service (concept of «service»: art. 57 TFEU) addressee. Example: a company sells books or provide financial services on line and the customer pays out by credit card. Freedom of establishment (ART. 49 TFEU): i) a company, regularly formed according to the law a Member State, sets up branches, agencies and subsidiaries, in other Member States; ii) nationals of a Member State set up a company in a Member State different from their Country of origin, under the same conditions applied by the host country to its own nationals; iii) nationals of a Member State engage in a self-employed activity in a Member State other than their country of origin under the same conditions applied to the nationals of the host Country.

8 EU Companies and Freedom of Capital, Services and Establishment Freedom of Establishment. Examples: i) A company formed according to the German civil law sets up a branch in Italy; ii) three Italians set up a limited liability company in France; iii) a Spanish engineer performs his professional activity in the United Kingdom. Freedom of Capital and Examples (art. 55, 63 TFEU): i) a company, formed according to the Italian business law, takes a share in a limited liability company incorporated under the UK law; ii) a public company, formed according to the Italian business law, trades its shares on the Berlin stock market; iii) an Italian citizen becomes member of a partnership formed according to French commercial law; iv) a company/firm, formed according to the Italian business law, makes an investment in real estate in a Member State other than the European Union Country where it was formed.

9 Business and Competition Rules Freedom of establishment, services, capital ---- «companies/firms» Rules on competition (Art. 101, 102, 106 TFEU) ---- «undertakings» «Undertaking» «Company» DO THEY HAVE THE SAME LEGAL MEANING IN THE EU LAW?

10 European Court of Justice and the preliminary rulings on «undertaking» Date of Publication, Case number the Authority releasing the ruling the legal basis of the Court of Justice ruling the national court involved the parties of the national proceeding (=main proceeding) the Treaty provisions at issue who submitted any observation summary of the main proceeding (=national proceeding) = what happened at the national level Which were the conclusions drawn by the Court of Justice and how the Court reached such conclusions

11 Concept of Undertaking Court of Justice Case law/preliminary rulings: Which are the parties? Which is the reference number of the Court of Justice s proceeding? Which is the national court at issue? And why does the national court suspend the main proceeding? Which are the Treaty provisions concerned? How about the main proceeding pending before the national court? What happened? Which are the conclusions drawn by the Court of Justice? And how does the Court reach such conclusions (main steps of the Court s reasoning)? Please, remember that the Court of Justice carries out a purposive/teleological interpretative analysis of Treaty provisions and legal norms!

12 European Court of Justice and the preliminary rulings on «undertaking» Becu Case Law/Judgement Same Information; More detailed Information Summary of the main proceeding Questions referred to the Court of Justice (by the national court) The conclusions made by the Court of Justice and how the Court achieved such conclusions (the way of reasoning)

13 Becu Case Law/Judgement According to 1973 Royal Decree, the dock work covers (para. 7) 'the handling in any form of goods transported by sea-going ship or inland waterway vessel, by railway goods wagon or lorry, and the ancillary services connected with those goods, whether such operations take place in docks, on navigable waterways, on quays or in establishments engaged in the importation, exportation and transit of goods, as well as the handling in any form of goods transported by sea-going ship or inland waterway vessel to or from the quays of industrial establishments.

14 Becu Case Law/Judgement The term handling means loading, unloading, stowing, unstowing, restowing, unloading in bulk, unmooring, classifying, sorting, sizing, stacking, unstacking, and assembling and disassembling individual consignments The Royal Decre mentioned above provides for the main conditions to be recognised as dockers (paragraph 12): 1. be a person of good conduct and good moral character; 2. have been declared medically fit by the dock-work medical service; 3. be aged between 21 and 45 years inclusive; 4. have a sufficient knowledge of the language of the trade to be able to understand all orders and instructions regarding the work to be done; 5. have attended preparatory courses on safety at work; 6. have the technical competence necessary to be able to do the work; 7. not have been the subject of a measure withdrawing recognition as a docker...

15 Poucet and Pistre Case Law Main (=national) proceeding: Mr Poucet and Pistre asked the Court (Social Security Court) to declare legally not enforceable the order of paying social security contributions to two funds (Assurances Generales de France and Caisse Autonome Nationale de Compensation) because they want to be free of choosing their insurance company. They assume that such insurance organization, based on French law, did not comply with Treaty provions on competition. National Court/Question posed to the Court of Justice: according to Treaty rules on competition, can the French laws establish an organization (the above mentioned funds) entrusted with the management of a special social security system? Or can this system facilitate restrictions of competition?

16 Poucet and Pistre Case Law The Court of Justice s approach and conclusions: Provided that, in the Court og Justice case law, the concept of «undertaking» covers every entity engaged in an economic activity, regardless of the legal status of the entity and the way it is financed, the Court tried to establish whether the provision of insurance services by French funds is of economic nature. To ascertain whether French insurance system is an activity of economic nature, the Court of Justice analyses how this system works. Indeed, in theory, the provision of insurance services may be considered an undertaking, actually it depends on how this activity is organized and performed. How is the provision of insurance services is organized by the french funds? How is the provision of insurance services is performed by the French funds?

17 Eurocontrol Case Law Main (=national) proceeding: SAT refused to pay flights route charge to Eurocontrol and Eurocontrol brought an action against SAT before the Belgian court to get the route charges in the period from September 1981 to December Sat justified the refuse to pay the flight route charges assuming that Eurocontrol conduct was contrary to art. 102 and 106 TFEU. Belgian Court stayed and asked the Court of Justice for a preliminary ruling. The question: Is Eurocontrol an «undertaking» within the meaning of European Treaties?

18 Eurocontrol Case Law The Court of Justice s approach and conclusions: First step: what does the Eurocontrol do? A) fixing and collecting route charges from users of air navigation services; B) research and coordination activities; C) air navigation control Second step: Analysing Eurocontrol s actvities, which of them is of economic nature? Which of them enjoys actual or potential competitors? If you were a private competitor, would you perform the activity of fixing and collecting route charges as Eurocontrol did?