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Flashcards in 4th Test Deck (56)
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1
Q

Why protect competition?

A
  • Economic system is based on competition, if something harms the competition it shouldn’t be allowed.
  • It is very important that the competition is fair.
2
Q

Goals of competition Law

A
  • Fairness among competitors.
  • Protection of consumer’s welfare.
  • Access to the market.
3
Q

Competition Law

A

It is concerned with the problems that occur when 1 or more firms possess market power.

4
Q

Areas of Competition Law

A
  • Free competition Law.
  • Unfair competition Law.
  • European competition Law.
5
Q

Free Competition Law:

A
  • Control of conducts contrary to free competition.
  • Controls the market: prevents the formation of dangerous competition.
  • 4 Types: Collusive practices, Abuse of dominant parties, Economic Concentrations, Control of State Aid.
6
Q

Collusive Practice (FC)

A
  • All agreements, decisions or collective recommendations that may produce the effect of preventing or restricting competition shall be PROHIBITED.
  • e.g: Horizontal and vertical agreements.
7
Q

Abuse of Dominant parties (FC)

A
  • Companies with a dominant position has a special responsibility in relation to the market.
  • Importance of elimination of market power.
  • Abusive conduct.
8
Q

Economic Concentrations (FC)

A
  • Operation that supposes a change in the structure of control of one or more companies:
  • Merger.
  • Acquisition of control.
  • Joint venture.
9
Q

Control of Aid State (FC)

A
  • Objective is to ensure that government interventions do not disturb competition and trade among EU.
10
Q

Unfair competition Law:

A
  • Protection of competition among enterprises, competition has to be fair.
  • Relationship with consumers and users: acts that can distort economic behavior of normal consumers.
11
Q

Acts that injure the interest of COMPETITOR (UCL)

A
  • By confusion.
  • By denigration.
  • By comparison.
  • By imitation.
  • Exploitation of the reputation of others.
  • Violation of trade secrets.
12
Q

Acts that injure the interest of CONSUMERS (UCL)

A
  • For misleading omission: false info.

- Aggressive practice: harassment, coercion.

13
Q

Acts that injure the PUBLIC INTEREST (UCL)

A
  • Violation of rules.
  • Discrimination or economic dependency.
  • Selling at loss.
  • Unlawful advertising.
14
Q

Importance of Intellectual Property (IP)

A
  • Essential business asset.
  • IP protects small innovative firms.
  • Needed to enable the release of IP into the public under controlled conditions.
  • IP guarantees standard for public benefit by means of licensed trademarks.
  • Protection of IP rights is a way to protect consumers too.
15
Q

IP System:

A
  • Rights over the use of inventions, designs, brands, literary and artistic work.
  • Innovators: make significant investments in development.
16
Q

What is a patent?:

A
  • A legal title that grants the holder the exclusive right to prevent others from making, producing or offering for sale a product that uses his patent without authorization.
17
Q

What can be patented?:

A
  • Patents protect inventions which solve technical problems: chemical substances, pharmaceuticals.
  • Processes, methods, uses, products, devices and systems.
  • They must be:
  • NEW
  • INVENTIVE
18
Q

What is a design?:

A
  • It is the outward appearance of a product resulting from its features.
  • Requirement for protection:
  • Novelty.
  • Individual character.
19
Q

Design Protection:

A
  • Exclusive right.
  • Principle of territory.
  • Duration:
  • registered design rights: max. 25 years.
  • unregistered design rights: 3 years.
20
Q

What is a Trademark?:

A
  • It is any sign, capable of being represented graphically, which distinguished the goods and services of one undertaking from those of another.
21
Q

Refusal for Trademarks

A
  • Absolute grounds: lack of distinctiveness.

- Relative ground: when peaceful co- existence of mark is impossible.

22
Q

Trademark protection:

A
  • Exclusive right.
  • Potentially perpetual (renewal every 10 years).
  • Risk of loss of protection if: not used after 5 years, found to be invalid.
23
Q

What is a copyright?:

A
  • Protects and production of the human mind, such as literary and artistic work.
  • Production must be an expression and not an idea.
24
Q

Protection of copyright:

A
  • Economic right: exploitation of work, freely transferable/ licensable.
  • Moral right: relate to a moral interest of author, always retained by author.
25
Q

What is a Trade Secret?:

A

Information that:

  • Is not generally known easily discovered.
  • Has business, commercial or economic value.
  • Is subject to reasonable effort to maintain secrecy.
26
Q

Protection of Trade Secret:

A
Practical
- Limited access to information.
- Encrypted.
- Monitored entry to installations.
Contractual
- Non- disclosure agreements.
27
Q

Concept of negotiable instrument

A

It is a document that:

  • Incorporates a legal right.
  • The right becomes independent from the underlying transaction.
  • Contains all the legal details of the right that it incorporates.
  • Normally freely transferable.
28
Q

Main economic functions of NI:

A
  • Means of payment (substituting cash).
  • Credit instrument evidencing a deferred payment.
  • Means to obtain credit through bank discounting.
29
Q

Types of payment NI

A
  • Bill of exchange.
  • Check.
  • Promissory Note. (Pagaré)
30
Q

Bill of exchange:

A
  • NI which is issued by a person and includes a payment obligation to be accepted by another person of an specific quantity on the due date.
  • Drawee may not accept the payment obligation.
  • Drawer remains liable if drawee does not accept and fails to pay.
31
Q

Parties involved in BOE

A
  • Drawer: person that issues BOE giving payment order to Drawee.
  • Drawee: person to whom the payment is addressed.
  • Payee: person to whom BOE has to be payed.
  • Endorser: creditor who transfers the right to receive payment.
  • Endorsee: person to whom the right to receive payment has been transferred.
32
Q

Types of action in BOE:

A
  • Direct action: action against the drawee to claim the payment of the BOE.
  • Backwards action: action against the endorser and/ or drawer to claim the payment of the BOE if drawee does not accept or pay.
33
Q

Check:

A
  • NI issued by a person which contains an order of payment to the bank in favor of the legitimate holder of document.
  • Issue of the check must be drawn against bank or credit institution.
  • Could be endorsed.
  • Not an official form.
34
Q

Promissory Note:

A
  • NI which contains an unconditional promise of payment of an specific amount by an issuer in favor of an specific holder on a due date.
  • Could be endorsed.
35
Q

Director’s Role:

A
  • Fiduciary duties: duty of diligence and loyalty.
  • Main Role: manage and govern the company in which they participate.
  • Have the capacity to nominate and terminate all executives working in the company.
  • Ultimate responsible for the company’s performance and activity.
36
Q

Corporate (Civil liabilities):

A
  • Additional regulation depends on sector,
  • Liable to shareholders for damages due to acts against the law, bylaws or breach of their duties.
  • Liable for debt.
  • EX: bankruptcy, imbalance and shadow directors.
37
Q

Main principles of Civil Liabilities:

A
  • Breach of the obligations and duties.
  • Existence of a damage.
  • Casualization.
  • Director’s performance to be negligent or bad faith.
  • Joint and several liability of all directors.
38
Q

Litigation Action of Civil Liabilities:

A
  • Corporate action: SGM, Shareholders, Creditors.

- Individual action: shareholders, 3rd parties, provided damage.

39
Q

Key issues of Civil Liabilities:

A
  • Aks for it at any SGM, without the need to be in agenda.
  • Incitation of an action implies the termination in the position as director.
  • Statute of limitations: 4 years.
40
Q

Criminal Liabilities of Directors: en

A
  • Deriving from Criminal Code.
  • Company liable from the criminal point of view.
  • Specific case of criminal offence.
  • Money laundering.
41
Q

Administrative Liabilities of Directors:

A
  • Deriving from the General Tax Law.
  • The company is the main responsible.
  • Directors are subsidiary liable.
42
Q

What happens if an enterprise goes wrong?

A
  • Option 1: entrepreneur can continue paying all its creditors when due, no need to apply insolvency law.
  • Option 2: entrepreneur can no longer pay all its creditors when due, insolvency law will apply.
43
Q

Insolvency Law:

A

Area of law that deals with a situation where a debtor is unable to pay all creditors in the due time.

44
Q

Goals of Insolvency Law (Traditional View):

A
  • Protect creditors against debtor.
  • Distribute assets of the enterprise among creditors.
  • Creditors should be treated equally.
  • Court drives process.
  • Only a court can offer sufficient legal warranties to make the insolvency process fair.
45
Q

Goals of Insolvency Law (Modern View):

A
  • Protects creditors and debtors.
  • Maximize the possibility of recovery (distribute assets isn’t always the best option).
  • Creditors & debtors have to drive process.
46
Q

Protect creditor and debtor:

A
  • Unsecured creditors may not recover any amount.

- Try to achieve an out of court agreement.

47
Q

Problems of distribute the assets among creditors:

A
  • We lose 1 entrepreneur = bad for economy.
  • We lose workplaces = (bad for people)
  • Distribution can damage creditors.
48
Q

Problem of Court processes:

A
  • High cost.
  • Long time.
  • Damages debtor’s reputation.
49
Q

CONCLUSION of modern insolvency law:

A

Aims to balance the interest from the creditos to get a quicker satisfaction, with the interest of the economy to preserve a debtor.

50
Q

Which law should we apply for insolvency?

A
  • Mostly governed by national law.
  • ## European court COMI: debtor has its “center of main interest”.
51
Q

Insolvency Act

A
  • Law 22/ 2003 of 9th of July.
  • Insolvency is a de facto situation.
  • Insolvency proceeding: opened in relation to debtor’s insolvency.
  • Each of them has a different legal effect.
52
Q

Voluntary insolvency (by debtor)

A
  • Current and imminent insolvency.
  • Debtor has no obligation to evidence that it is insolvent.
  • Under legal obligation to ask for insolvency.
    Problem: nobody wants to negotiate with an entrepreneur that has been declared insolvent.
  • Solution: debtor will not be under obligation to file for insolvency if he notifies that it has started negotiations with creditors ( 3 months to negotiate).
53
Q

Compulsory insolvency (by creditor):

A
  • Only in case of insolvency.
    Creditors have to evidence certain factors:
  • General suspension of payment.
  • Seizures over all or a significant part of assets of debtor.
  • Creditor can not make a petition for insolvency if debtor has notified.
54
Q

Initial steps:

A

Declaration of insolvency:
- Made by Commercial Code.
- Legal Publicity: official Gazzett & Commercial Registry.
Appointment of insolvency receiver:
- It is appointed by judge.
- In general: 1 insolvency receiver.
- Main functions: helps the court in development of insolvency.
List of creditors:
- We need to know how many creditors does the company have.
- Classification of creditors.

55
Q

Classification of creditors:

A
  • Against state.
  • Privileged creditors.
  • Ordinary creditors.
  • Subordinated creditors.
56
Q

Claw back action:

A
  • Way to protect the creditor against actions made by the creditors before the declaration of insolvency that are prejudicial for the insolvency state.
  • 2 years before insolvency declaration.