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1

VŠEOBECNÉ PRAVIDLO PROTI ZNEUŽÍVANIU V OBLASTI DANE Z PRÍJMOV A ROZHODNUTIA SÚDNEHO DVORA EURÓPSKEJ ÚNIE

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Duračinská M., Duračinská J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2017
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vol. 100
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issue 5
476 – 494
EN
The authors analyse the judgments of the Court of Justice of the European Union in relation to the doctrine of tax abuse and summarise, in historical perspective, how this institute of tax law became constituted through the Court of Justice judgments and the Commission materials, resulting in the General Anti-Abuse Rule/GAAR adopted by Council Directive (EU) 2016/1164 (the “Directive“) laying down rules against tax avoidance practices that directly affect the functioning of the internal market. Analysing the GAAR, the authors refer to the subjective and objective elements of tax abuse, as specified in the Directive, that require verification by the main purpose test, not genuine (artificiality)/economic reality test and the test of conflict between tax advantages and the object and purpose of the tax law. A more detailed analysis of the question of artificiality is provided in the article as the Directive has not borrowed the term “wholly artificial arrangement” from the EU Court of Justice judgments but introduced a definition of artificiality according to which the transactions, “the arrangement or a series of arrangements, are not genuine”, assuming such findings must be supported by the relevant facts and circumstances. In addition, the authors also focus on anti-abuse legislation in the Slovak Republic, Act 563/2009 Z. z. on tax administration (Tax Rules), as amended, comparing it to the rules included in the Directive as regards the subjective and objective elements of abuse and pointing out to incompleteness of the national legislation especially in relation to not genuine (artificiality) test and conflict with object and purpose test.
2

O SÚDNOM DVORE EURÁZIJSKEJ HOSPODÁRSKEJ ÚNIE: POSTAVENIE, KONANIE A PRÍNOS

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Mareček L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2021
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vol. 104
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issue 3
247 – 264
EN
The Court of Justice is the judicial body of the institutional system of the Eurasian Economic Union. The Union is a regional economic organisation that was founded in 2015. Its existence links to the existence of previous economic constellations in the region – the Eurasian Economic Community (2000), Eurasian Customs Union (2010) or Eurasian Economic Space (2013). The executive centre of the Union is Moscow. It consists of five states of which the Russian federation, economically speaking, is the most influential. In the Union, integration at the executive level plays a dominant role. About the Court of Justice, there may be concerns that its independence will be sufficiently ensured. The “reform” of 2015 does not solve the problem but only weakens its competences, e.g. removal of the preliminary ruling procedure. The decision-making activity of the Court of Justice is less intense than that of its counterpart in the European Union. From a qualitative point of view, in some moments we can see signs of his judicial activism. In principle, however, his decision-making activity does not yet lead to conclusions that we could call “ground-breaking.” In its work, it builds on its decision-making work before the Court of Justice of the Eurasian Community. It is possible to emphasize the formulation of the principle of direct application and the primacy of Union law or the principle of the concurrent primacy of the competence of the Union institutions in the event of their conflict with the competence of a national authority. The Court also formulated the autonomy of the Union law principle. Proceedings before the Court starts based on an initiative of a subject and can be divided into disputes and interpretations (which are consultative). Dispute proceedings must be preceded by an attempt to an out-of-court settlement. The active legitimate subjects are the Member States and the so-called business. At the level of the business entity, it is proving to be giving the individual wider access to transnational judicial protection than in EU conditions. The Union institutions do not have such a possibility. However, these have an impact on the Court’s work in terms of its control, creation or enforcement. This is mainly because the Court of Justice cannot overturn existing rules (regional, national) or authoritatively determine how its decisions are to be enforced.
3

NARIADENIE EURÓPSKEJ ÚNIE Z POHĽADU NORMOTVORBY

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Hodás M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 3
280 – 294
EN
Connection of the law of the Slovak Republic to the law of the European Union is related to a large number of new conceptual issues of legislative and procedural character, that are often connected with their significant law enforcement connotations. In case of a regulation it is necessary to bear in mind specific character of this legal act. The Regulation is directly applicable in all Member States of the European Union. It is forbidden to transpose it into the national law. According to Court of Justice of the European Union transposition of content of regulation into the domestic law of a Member State is permitted only exceptionally in the interests of clarity, homogeneity, and effective applicability of legislation, provided, that in this way there is no blurring of the Union origin, nature and legal effects of regulation. It is also permissible to provide implementation of regulation by setting of sanctions or establishing the competence of national authorities.
4

ODKAZ SÚDNEHO DVORA EÚ VNÚTROŠTÁTNYM SÚDOM O APLIKOVATEĽNOSTI A PÔSOBNOSTI CHARTY ZÁKLADNÝCH PRÁV EÚ: ROZSUDKY VO VECIACH ÅKLAGAREN FRANSSON A MELLONI

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Mazák J., Dobrovičová G., Orosz L., Jánošíková M.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 2
115 – 130
EN
The article intends to contribute to the theoretical and practical debates concerning the scope of application of the Charter of Fundamental Rights of the European Union (hereafter „the Charter“) in relation to the recent judgments of the Court of Justice in the cases Åklagaren Fransson and Melloni. An analysis of these judgments is concentrated on the interpretation of the general provisions of the Charter, namely of Articles 51, 52 and 53. The key element of the application of the Charter within the Member States is a proper interprreation of Article 51 paragraph 1 which uses, regarding to the Member States, the term: only when they are implementing the EU law. The interpretation of that Article in the recent case law goes visibly beyond its mere wording since the Court of Justice wants to connect the application of the Charter with its previous case law on the general principles. The authors deal also with the levels of protection of fundamental rights in interaction between the Charter and national constitutions and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The conclusions of the treatise should open the door for further research of the question of applicability of the Charter within the Member States.
5

EUROPEIZÁCIA PRÁVA PROTI NEKALEJ SÚŤAŽI (HABILITAČNÁ PREDNÁŠKA)

84%
Vozár J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 3
217 – 231
EN
Europeization is a modern concept that concerns many fields of law. It did not avoid the unfair competition law, either. This phenomenon can be observed very clearly in the public section of the competition law, which is the law against restriction of competition. It is present – though less distinctly in the private section of competition law, which is unfair competition law. The reason why the phenomenon of Europeization is less distinct in unfair competition law is simple. The antimonopoly law is influenced by the European law directly and nearly in the whole scope of its application. The unfair competition law is influenced by the European law both directly and indirectly, but only in some areas of its application such as misleading and comparative advertising and unfair business practices used by enterprises in relation to consumers on the internal market. In his contribution he deals thoroughly with the harmonisation of Slovak unfair competition law as a result of transposition of the European directives. Transposition of these European directives into our law must respect the terminological system specifics of our law and catch the meaning and spirit of the directive as much as possible. A very important source of positive European law is the decision-making practice of the Commission and the case-law of the General Court of the European Union and the Court of Justice of the European Union that significantly participate in the creation of the content of European legal norms.
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