The ECJ on the Verge of a Member State Friendly Judicature? – Annotation to the Marks & Spencer Judgement, ECJ 13. 12. 2005, C-446/03

Abstract

On 13 December 2005, the Grand Chamber of the European Court of Justice (ECJ) has issued apart from the SEVIC case 1 the second decision in the field of cross-border company activities. In contrast to many literary anticipations, the Court did not reject the UK domestic focused group taxation system as a general violation of Art. 43 and 48 EC Treaty. The ECJ rather tries to balance the fundamental freedoms and the legal and budgetary interests of the Member States by emphasizing the principle of territoriality. Only if the foreign subsidiary (or a third party as a purchaser) has no opportunity to effectively use its incurred losses in the state of its domicile, the state of residence of the parent company is obliged by Community law to reduce he losses from the taxable income (ultima ratio-principle). The reasons given for the judgement leave much uncertainty and reveal a lack of dogmatic foundation.

Universal Jurisdiction and Third States in the Reform of the Brussels I Regulation

“…67 Focusing on English law, it does not come as a surprise that lis pendens is inextricably linked to the doctrine of forum non conveniens and the identifi cation of the appropriate forum. 68 Moreover, by incorporating the priority principle the Regulation gives effect to the fundamental principle of legal certainty 69 and enables the parties to foresee which court will assume jurisdiction. 70 Even more importantly, if the matter were left to national law, the basic idea behind the unifi cation of jurisdiction would be seriously affected: When proceedings were commenced in a third State, a court could decline jurisdiction under its national law irrespective of whether proceedings in the third State court were instituted fi rst or second in time 71 or related to the same cause of action.…”