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GLOSSARY

Pre-emption definition

Published by a LexisNexis EU Law expert

What does Pre-emption mean?

Pre-emption is a legal doctrine according to which the exercise of EU competences precludes corresponding Member State competences in case of a conflict.

The doctrine of pre-emption is applicable only in shared competence areas which are listed under Article 4 TFEU. Article 2(2) TFEU, codifying the pre-emption doctrine in EU law, suggests that in shared competence areas the Member States can legislate to the extent that the Union does not legislate. As a result of the pre-emption doctrine, the Member States are allowed to regulate matters in shared competence areas under the condition that in case of a conflict with the EU measures, the national measures will be set aside.

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Option agreements—acting for the buyer—checklist

Option agreements—acting for the buyer—checklist Call or put option? In a 'call' option the buyer will have control in that it may call for a transfer of the property. A 'put' option gives the seller control in that it can require the buyer to take a transfer of the property and therefore the buyer should be especially vigilant in ensuring that the terms for the transfer (particularly those relating to valuation and, if appropriate, insurance) are as favourable as possible. Seller's charges If the property is already mortgaged at the date of grant of the option agreement, there is a risk that the mortgagee may overreach the option by exercising its power of sale. Therefore ensure that the mortgagee either: • joins into the agreement (this is rare in practice), or • provides written consent to the granting of the option In either case, the mortgagee should confirm that if the buyer exercises the option it will acquire the property free from the charge or, if the mortgagee...

Listing requirements and continuing obligations—premium listing and standard listing—prior to 29 July 2024

Listing requirements and continuing obligations—premium listing and standard listing—prior to 29 July 2024 A significant restructuring of the UK listing regime came into effect on 29 July 2024 which included the removal of the premium and standard listing segments and the creation of a single listing category for equity shares in commercial companies. The commercial companies category is heavily disclosure-based and sits alongside other listing categories such as the shell companies, secondary listing and closed ended investment fund categories. The UK Listing Rules sourcebook came into force to implement the changes and the Listing Rules sourcebook was revoked. For further information see Practice Note: Reform of the UK listing regime—fundamentals. This checklist reflects the listing regime prior to 29 July 2024 and has been retained for reference purposes. This checklist compares the listing requirements and key continuing obligations that previously applied to a commercial company with a listing of equity securities on the premium and standard listing segments prior to 29 July 2024. Requirements for listing—prior to 29 July 2024...

Discover our 6 Checklists on Pre-emption

EU internal competence

The limits of EU competencesThe limits of EU competences are governed by the principle of conferral (also known as the principle of attributed powers). This principle ensures that the EU does not extend its powers beyond those conferred by the EU Treaties.According to the principle of conferral, as codified under Article 5(2) of the Treaty on European Union (TEU):‘…the [EU] shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the EU in the Treaties remain with the Member States.’The second aspect to the principle of conferral is the delineation of competences between the EU institutions, which is laid down in Article 13(2) TEU stating that ‘each institution shall act within the limits of the powers conferred upon it in the Treaties’.The fact that the EU is empowered to take an action in an area does not give general law making powers to the institutions. As the institutions can act...

European legislative process

EU lawThe EU’s core objective of achieving European unification is based exclusively on the rule of law. EU law is an independent legal system which has primacy (or supremacy) over national legal provisions. A number of key players are involved in the process of implementing, monitoring and further developing this legal system for which a variety of procedures apply. In general, EU law is composed of three different but interdependent types of legislation, ie primary, secondary and tertiary. The combined law of the EU is also known as the ‘acquis communautaire’.Categories and areas of EU competenceCompetence is a term used to denote the power of the EU to undertake specific action where such power is conferred upon it by the Member States in the EU Treaties. The EU’s competences are set out in the EU Treaties, which provide the basis for any actions the EU institutions take. The EU can only act within the limits of the competences conferred on it by the Treaties, and where the Treaties do not...

Discover our 52 Practice Notes on Pre-emption

Irrevocable undertaking—shareholder—scheme of arrangement

Irrevocable undertaking—shareholder—scheme of arrangement The Directors [insert offeror's name] ([Offeror]) [insert address] [and] [The Directors] [[insert name of financial adviser] (the Adviser) [insert address]] [insert date] Dear Directors Proposed acquisition of [name of offeree] ([Offeree]) We understand that [Offeror] proposes to acquire (the Acquisition) [all] the issued [and to be issued] [ordinary] shares of [insert nominal value] each in [Offeree] (the Shares) for the consideration, and otherwise substantially on the terms and subject to the conditions, set out in the draft press announcement attached to this letter (the Announcement), subject to such amendments or additions to such terms and conditions as may be required by the City Code on Takeovers and Mergers (the Code), the Panel on Takeovers and Mergers (the Panel), the High Court of Justice in England and Wales (the Court) or any applicable law or regulation. We also understand that the Acquisition is expected to be implemented by way of a scheme of arrangement under...

ccTLD domain name transfer agreement (.uk)

ccTLD domain name transfer agreement (.uk) This Agreement is made on [date] PARTIES 1 [insert name], a company incorporated in England and Wales, whose registered company number is [insert company number] and whose registered office is [insert address] (Transferor); and 2 [insert name], a company incorporated in England and Wales, whose registered company number is [insert company number] and whose registered office is [insert address] (Transferee), each of the Transferor and the Transferee being a party and together the Transferor and the Transferee being the parties. Background (A) The Transferor is the legal registrant of the Domain Name[s] defined below. (B) The Transferor has agreed to [sell and ]transfer the Domain Name[s] to the Transferee and the Transferee has agreed to [buy and] accept the registration of the Domain Name[s] in accordance with the terms of this Agreement. IT is agreed as follows: 1 Definitions and interpretation 1.1 In this Agreement: Business Day • means a day other than a Saturday, Sunday or bank...

Dive into our 49 Precedents related to Pre-emption

Can the trust deed be protected by standard Form A restriction at the Land Registry and what is the best way of registering the trust deed at the Land Registry?

Can the trust deed be protected by standard Form A restriction at the Land Registry and what is the best way of registering the trust deed at the Land Registry? It has been assumed that the property that is the subject of the trust deed is registered property and that the trust deed is to be made between co-owners of the registered property. Where two or more people together own real property, they hold it under a trust of land. Where property is held on a trust of land, the legal estate and equitable estate are separate. The legal estate must be held by the co-owners as joint tenants. The beneficial interest in the property can, however, be held by the co-owners either as: • joint tenants, or • tenants in common If the co-owners are joint tenants, each has an indivisible share in the property, so that each owns the whole rather than an identifiable share of the property. The right of survivorship applies so...

If the articles of a private company contain bespoke pre-emption rights, do the statutory pre-emption rights still need to be disapplied and, if so, how? How do you disapply contractual pre-emption rights?

If the articles of a private company contain bespoke pre-emption rights, do the statutory pre-emption rights still need to be disapplied and, if so, how? How do you disapply contractual pre-emption rights? Pre-emption rights are an important shareholder protection because they enable an existing shareholder to maintain their percentage shareholding in the company on a new issue of shares. Where a private company's articles of association contain pre-emption rights which differ from but do not exclude the statutory pre-emption rights, do the statutory pre-emption rights still need to be disapplied and, if so, how can they be disapplied? Further, what if the articles contain bespoke pre-emption rights provision but do not contain a procedure for disapplying them? How can these contractual pre-emption rights be disapplied? Disapplying statutory pre-emption rights The Companies Act 2006 (CA 2006) gives existing shareholders of companies a statutory right of pre-emption in respect of the allotment of new equity securities. For private companies only, all or any of the pre-emption requirements in...

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Share Incentives weekly highlights—17 April 2025

This week's edition of Share Incentives weekly highlights includes (1) an update from the FCA on its PISCES sandbox framework following proposals in consultation paper CP24/29, (2) a focus on executive pay as the AGM season continues and (3) a new Q&A which considers whether an option holder can claim business asset disposal relief in relation to the sale of shares resulting from their EMI option exercise if a disqualifying event has previously occurred.

Corporate weekly highlights—17 April 2025

This week's edition of Corporate weekly highlights includes: the FCA’s update following the closure of the consultation on the regulatory framework for the PISCES sandbox, news of the postponement of the implementation dates for the Corporate Sustainability Reporting Directive and Corporate Sustainability Due Diligence Directive, as well as news analysis on the UK’s approach to modern slavery. It additionally includes the Court of Appeal judgments in (i) Syspal Capital Ltd v Truman relating to the interpretation of pre-emption provisions in articles of association and (ii) Kington S.À.R.L. v Thames Water Utilities Holdings Ltd relating to a restructuring plan under Part 26A of the Companies Act 2006.

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