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Legal Periodicals: A Selection (July and August 2013)

Legal Periodicals: A Selection (July and August 2013) COLUMNS BY TOM DIJKHUIZEN, LLM MPHIL, PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. T.M.J. MÖLLERS & M.C. POPPELE, `PARADIGMENWECHSEL DURCH MIFID II: DIVERGIERENDE ANLEGERLEITBILDER UND NEUE INSTRUMENTARIEN WIE QUALITÄTSKONTROLLE UND VERBOTE', ZGR (2013), 437­481. 2. A. RICHTER & A.K. GOLLAN, `FUNDATIO EUROPAEA ­ DER KOMMISSIONSVORSCHLAG FÜR EINE EUROPÄISCHE STIFTUNG (FE)', ZGR (2013), 551­595. law applicable to public benefit foundations ­ is deeply influenced by national characteristics. As a result, European legislation in this area is challenging. The article discusses the proposal of the European Commission for a Statute of a European Foundation (FE) with a focus on the interconnection with German foundation law and German charity tax law. In the second paragraph, the authors discuss the laws that are applicable on the FE. Pursuant Article 3 of the proposed council regulation, the FE shall be governed by the Regulation and the statutes of the entity. If matters are not or are only partly regulated by the regulation or the statutes, the provisions of the national law applicable to domestic public benefit purpose entities are also applicable to the FE. In the remainder of the article, the authors deal with the private law and tax law components of the proposal. In this part, the authors identify, from a German point of view, on which points the Statute should be clarified and whether the current proposal offers appropriate solutions for the civil society. The authors conclude that the proposal can be considered as a move in the right direction, but needs clarification. On 8 February 2012, the European Commission proposed a Regulation on the Statute of a European Foundation (Fundatio Europaea, FE) that enables the establishment of public benefit purpose entities that can carry out (economic) activities on a cross-border basis. The regulation aims to solve the overall problem that the variety of national civil and tax rules lead to foundations' crossoperations being too costly and cumbersome with the result that the cross-border channelling of funds to public benefit purposes through foundations is largely underexploited. After an introduction of the FE as legal form, the authors elaborate on the details of the proposal. Interesting is that this legal form is distinguished from other European legal forms by some specific characteristics. In particular, the foundation as an organization without any shareholder or member is subject to State supervision. Furthermore, not only foundation law ­ especially the supervision carried out by State authorities or by Courts, but also the tax The answer on the underlying causes of the financial crisis might be the new MiFID II regime and the AIFM Directive. Both bring about a variety of legislative novelties and the authors elaborate on those novelties. For instance, it is a novelty that the legislator increasingly considers the information overload problem when redesigning certain information duties. There is also a gradual shift in the regulatory focus to staggered quality checks, the avoidance of conflicts of interest and product bans. In the view of the authors, there is a need for a paradigm change. The authors state that in order to structure and evaluate these legislative novelties, the following regulatory objectives need to be distinguished: equal treatment of investors, rational investor choice through education, investor-oriented advice and professional asset management. Their concluding analysis also shows that the relevant regulatory purpose defines the investor role model which diverges for this reason correspondingly. `Columns'. European Company Law 10, no. 6 (2013): 218­218. © 2013 Kluwer Law International BV, The Netherlands http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Company Law Kluwer Law International

Legal Periodicals: A Selection (July and August 2013)

European Company Law , Volume 10 (6) – Jan 21, 2013

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Kluwer Law International
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Copyright © Kluwer Law International
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1572-4999
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Abstract

COLUMNS BY TOM DIJKHUIZEN, LLM MPHIL, PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. T.M.J. MÖLLERS & M.C. POPPELE, `PARADIGMENWECHSEL DURCH MIFID II: DIVERGIERENDE ANLEGERLEITBILDER UND NEUE INSTRUMENTARIEN WIE QUALITÄTSKONTROLLE UND VERBOTE', ZGR (2013), 437­481. 2. A. RICHTER & A.K. GOLLAN, `FUNDATIO EUROPAEA ­ DER KOMMISSIONSVORSCHLAG FÜR EINE EUROPÄISCHE STIFTUNG (FE)', ZGR (2013), 551­595. law applicable to public benefit foundations ­ is deeply influenced by national characteristics. As a result, European legislation in this area is challenging. The article discusses the proposal of the European Commission for a Statute of a European Foundation (FE) with a focus on the interconnection with German foundation law and German charity tax law. In the second paragraph, the authors discuss the laws that are applicable on the FE. Pursuant Article 3 of the proposed council regulation, the FE shall be governed by the Regulation and the statutes of the entity. If matters are not or are only partly regulated by the regulation or the statutes, the provisions of the national law applicable to domestic public benefit purpose entities are also applicable to the FE. In the remainder of the article, the authors deal with the private law and tax law components of the proposal. In this part, the authors identify, from a German point of view, on which points the Statute should be clarified and whether the current proposal offers appropriate solutions for the civil society. The authors conclude that the proposal can be considered as a move in the right direction, but needs clarification. On 8 February 2012, the European Commission proposed a Regulation on the Statute of a European Foundation (Fundatio Europaea, FE) that enables the establishment of public benefit purpose entities that can carry out (economic) activities on a cross-border basis. The regulation aims to solve the overall problem that the variety of national civil and tax rules lead to foundations' crossoperations being too costly and cumbersome with the result that the cross-border channelling of funds to public benefit purposes through foundations is largely underexploited. After an introduction of the FE as legal form, the authors elaborate on the details of the proposal. Interesting is that this legal form is distinguished from other European legal forms by some specific characteristics. In particular, the foundation as an organization without any shareholder or member is subject to State supervision. Furthermore, not only foundation law ­ especially the supervision carried out by State authorities or by Courts, but also the tax The answer on the underlying causes of the financial crisis might be the new MiFID II regime and the AIFM Directive. Both bring about a variety of legislative novelties and the authors elaborate on those novelties. For instance, it is a novelty that the legislator increasingly considers the information overload problem when redesigning certain information duties. There is also a gradual shift in the regulatory focus to staggered quality checks, the avoidance of conflicts of interest and product bans. In the view of the authors, there is a need for a paradigm change. The authors state that in order to structure and evaluate these legislative novelties, the following regulatory objectives need to be distinguished: equal treatment of investors, rational investor choice through education, investor-oriented advice and professional asset management. Their concluding analysis also shows that the relevant regulatory purpose defines the investor role model which diverges for this reason correspondingly. `Columns'. European Company Law 10, no. 6 (2013): 218­218. © 2013 Kluwer Law International BV, The Netherlands

Journal

European Company LawKluwer Law International

Published: Jan 21, 2013

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