Thesis (Ph. D.)--University of Washington, 2006. / Vita. Includes bibliographical references (leaves 50-52).

Thèse--Paris. / Includes bibliographical references.

Inaug.-Diss.-Bern.

Thesis (Ph.D. Philosophy)--University of Waikato, 2006. / Includes bibliographical references (leaves 265-272) Also available via the World Wide Web.

Thesis (M.Phil.)--Hong Kong University of Science and Technology, 2007. / Includes bibliographical references (leaves 48-49). Also available in electronic version.

Thesis (Ed.D.)--Boston University.

This thesis addresses Art. 4 ATAD and looks at it from two different angles. Firstly, Art. 4 ATAD will be examined in the light of the TFEU freedoms. Special regard will be had to the principle of proportionality. Secondly, it will be evaluated how Art. 4 ATAD, or rather its domestic implementation, aligns with the constitutions of the Member States. For the first part, Art. 4 ATAD has to be measured against the case law the ECJ has developed regarding testing anti-avoidance rules against the TFEU freedoms. An interest limitation rule like Art. 4 ATAD falls under the scope either of the freedom of establishment or the free movement of capital. However, since Art. 4 ATAD applies to cross-border interest payments in the same way as it applies to such payments on a purely national level, it does not impose a restriction on any of the freedoms. Since Art. 4 ATAD is not a domestic rule, which is tested against the TFEU freedoms, but EU law, it still has to follow the proportionality principle according to Art. 5 (1) TEU. For this reason, the proportionality test, which usually forms part of the justification test, still has to be conducted on its own. Art. 4 ATAD has to be suitable for securing the attainment of the objective which it pursues without going beyond what is necessary to attain it. As the name of the ATAD implies, its main objective is preventing tax avoidance. Regarding this justification ground, the ECJ has developed two different lines of judicature. The first line involves the anti-avoidance purpose on its own. Then, the given measure has to target wholly artificial arrangements, which do not reflect a real economic activity. Moreover, the taxpayer needs to be given the chance to prove such an economic reality. Art. 4 ATAD does not meet these requirements, because it covers all sorts of interest payments and does not provide for an exception in case of a proven sound business reason. The second line considers the anti-avoidance purpose combined with another justification ground. Then, the provision does not have to target only wholly artificial arrangements. Here, the balanced allocation of taxing rights is suitable for this purpose. Nevertheless, the problem still remains that Art. 4 ATAD is not limited to cross-border interest payments, but covers all kinds of interest payments and therefore overshoots its aim of securing the balanced allocation of taxing rights. This is why this justification ground is not able to render Art. 4 ATAD proportionate either, neither combined with the anti-avoidance purpose nor taken on its own. Art. 4 ATAD in not in line with the TFEU freedoms, because it violates the principle of proportionality, which is part of the justification test. For the second part, Art. 4 ATAD has to be measured against national constitutions. As an example serves the German interest barrier rule. This is, because it served as a blueprint for Art. 4 ATAD, so it can be seen as already implementing Art. 4 ATAD. Furthermore, the German interest barrier rule is currently under review by the German Constitutional Court, because its constitutionality is being questioned. The reason for this is that by limiting the deduction of interest expenses, the German interest barrier rule interferes with the objective net principle. In German tax law, the objective net principle is deduced from the ability-to-pay principle, which again is deduced from the principle of equality. The principle of equality is laid down in Art. 3 (1) of the German Constitution. Through the connection to the principle of equality, the objective net principle itself is covered by the German Constitution. This derogation from the objective net principle is not justified, because the German interest barrier rule - like Art. 4 ATAD - is not proportionate in relation to its objectives, i.e. the control of economic policy, the state's financing needs and the need to prevent abusive structures. The same problem would occur with an actual domestic implementation of Art. 4 ATAD. In case, the objective net principle is also covered by the constitutions of other EU Member States, they will face the same difficulties. Even if the objective net principle is not covered by the constitution of a Member State, it still is a fundamental principle of tax law. It is true, that EU law prevails over domestic laws and even national constitutions. However, according to Art. 4 (2) and (3) TEU, the EU also has to respect the national fundamentals and follow the principle of sincere cooperation. This means, that the EU should not counteract such fundamental principles of the Member States as the objective net principle and the ability-to-pay principle. By adapting Art. 4 ATAD, the EU does not meet these requirements. It can be concluded that Art. 4 ATAD results in difficulties both with primary EU law and with national constitutional law or at least fundamental principles. Although these concerns are rather of a theoretical nature, they still lead to the legitimate question if the EU legislators have made the right choice in phrasing Art. 4 ATAD as they did.

Problem This thesis attempts to determine if the Canadian federal and provincial governments are increasing their assertion of the public interest in the collective bargaining process. The primary concern is to determine to what extent the government, through its new labour legislation will be able to affect the quality of collective agreements. The quality of collective agreements can be affected directly through arbitration or can be affected indirectly by influencing the power positions of the negotiating parties. Method of Investigation The first problem which is tackled is the definition of the public interest. The public interest is a term now being used in labour legislation, for which a precise definition is not easily derived. A literature analysis is undertaken to develop a conceptual framework of the public interest. Since this is an investigation of the changing role of the government, it is necessary to establish the traditional role of the government in the collective bargaining process. This is accomplished by examining less recent government legislation as well as case studies of the applications of the U.S. Taft-Hartley Act. The public employees of Canada and the United States are treated as a special case. Recent legislative developments in both countries have resulted in federal public servants to become active in collective bargaining. These recent developments consist in Canada of the Public Service Staff Relations Act, and in the United States of the Executive Order 10899. The new developments in provincial labour legislation consist of B.C.’s Bill 33, Saskatchewan’s Essential Services Emergency Act, and Ontario's Rand Royal Commission Report. These two Acts and the Royal Commission Report are analyzed critically for their potential effect upon the collective bargaining process. Conclusions The literature analysis of the public interest reveals that there is no universally acceptable definition of the public interest. The public interest can only be meaningfully used within a situational framework. In other words, the concept is capable of definition only within a specific situation. Despite the fact that the concept is not likely ever to be universally defined, it will undoubtedly continue to be widely used. The policy of the Canadian federal and provincial governments regarding collective bargaining has traditionally been to assist the parties to come to an agreement. The role of the government has not been one of interference. It has consisted solely of facilitating agreements by postponing work stoppages and by providing mediators. Although the effectiveness of these measures can be questioned, the intent is quite clear. The recent provincial legislation seems to reinforce the proposition that the strike is an undesirable form of social conflict. It is felt to be undesirable in the sense that the legislation encourages the parties to collective negotiations to settle their dispute without resorting to work stoppages. At the same time, it recognizes that the threat of a work stoppage is part of the collective bargaining process. The new legislation formalizes the concept that there are certain kinds of collective bargaining relationships which are heavily endowed with the public interest. Whereas government activity in these kinds of disputes had occurred on an ad hoc basis in the past, the Rand Report, B.C.'s Bill 33, and the Saskatchewan legislation established mechanisms which will provide for the assertion of the public interest in extraordinary labour disputes. In some cases, and where the parties cannot come to an agreement without resorting to a work stoppage, the new legislation will provide an agency or mechanism through which the government can submit the dispute to compulsory arbitration. / Business, Sauder School of / Graduate

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