Blc obiter dicta edition 6

AUGUST 2012 6th EDITION

BLC News

1

Letter from the Editors Welcome to the sixth edition of Obiter Dicta!

CEE National Issues

3

UK Legal Issues

20

EU Perspectives

34

International Perspectives

50

CEEMC

62

Subscribers’ contributions

64

Once again we have had the pleasure of receiving a multitude of articles from our students, alumni and friends on a plethora of

diverse topics.

We are extremely grateful to all those who devoted their free time to preparing pieces for this edition, and we are sure that you will enjoy reading

the results of their labours. Remember you can keep up with BLC activities between editions of OD by bookmarking www.britishlawcentre. co.uk

2012… wow already such an action packed year... now it’s time for us to celebrate the BLC’s 20th birthday together!!

The year 2012 has seen many notable events for Britain. The Queen’s Diamond Jubilee, celebrating 60 years of HM Elizabeth II’s reign, was attended or watched by millions throughout the world. The Olympic Games, held in London, were watched by millions and the failure of the English football team to progress to the quarter finals of the Euro 2012 was celebrated wildly by all with Italian, German or French ancestors (not to mention the Scots). However, these events constitute merely the “warm up acts” for the main event of 2012 – the 20th anniversary of the British Law Centres!

Yes – difficult as it may be to believe, the British Law Centres have been teaching English and EU law for the last 20 years and have been witness to enormous changes, in the region itself and in the law that we teach.

However, a few things remain constant. The BLC continues to provide excellence in legal studies, continues to maintain its close contacts with the

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Cambridge University Faculty of Law staff members who were instrumental in creating the venture, and continues to organise both academic and social events that are the envy of other education providers.

BLC NEWS

CONFERENCE In keeping with tradition, our 20th anniversary celebrations will involve a combination of academic and social events. The former sees the BLC organise an international conference, taking place at the University of Warsaw on Friday 21st September presided over by Lord Robert Carnwath of Notting Hill, Supreme Court judge and long-term supporter of the BLC. Lord Carnwath will be joined by leading academics from the University of Cambridge and other prestigious Universities throughout the Central & Eastern Europe region, together with prominent representatives of the judiciary, legal professions and public administration. The conference aims to take a broad view of some of the legal changes that have occurred in the EU and Europe as a whole during the last 20 years.

OBITER

DICTA

DINNER/ DANCE The main social event to be held is the dinner-dance, which takes place on Saturday 22nd September at the Marriott Hotel in Warsaw.

Those in attendance will include past and previous students and tutors, spanning all 20 years of the BLC’s existence, and representatives of the BLC’s major corporate sponsors. It offers a wonderful occasion to reunite with past friends and teachers and to establish new contacts in the legal world., so if you want those memories to flow back, whilst you spend the night dancing, socialising and reminiscing about past tutorials and the trusts mark you feel should have been better...

Spaces are limited and tickets can be reserved to the 20 th August, but they are selling fast so even though the party will take place in the Marriot’s Grand Ballroom, if you want to be with us. YOU NEED TO ACT QUICKLY !

For full details of the events celebrating the BLC’s 20 th Anniversary, or to book tickets for the celebration dinner/dance, see: www.anniversary.britishlawcentre.co.uk/ BLC Anniversary Sponsors

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The codification process of the new Hungarian Civil Code: some challenges

CEE National Issues

Dr Árpád Gyuris Researcher Károly Róbert college

OBITER

DICTA

Abstract: In this paper I would like to give an overview of some interesting details about the drafting the new Hungarian private codex. The Hungarian legal system belongs to the continental type (more or less influenced by the German legal system). One of the main characteristics of such a regime is the accepted use of the Codex. Many important legal fields (labour law, administrative law, criminal law) have their own legal books, which state the top-level legal rules, controlling their own legal domains. Until the middle of the 20th century, Hungary had not been succeeded to create an independent private legal book. This has several reasons, which I try to present in this article. In 1959 a new and still valid private legal codex came into effect. The political era of the drafting did influence the codex, but the lawyers who created the act were able to overcome the contemporary political circumstances and made an excellent book. The unique status and outstanding quality of the book is proven by the fact that it could be adapted to the political changes of 1989 to remain in force until the present day.

1. In the 19th century many countries all over Europe drafted private legal codices (Germany: BGB, France: Code Civil, Austria: ABGB).

Hungary attempted to draft one too. Unfortunately, after various serious attempts during a relatively long time (1848-1928), this didn’t happen. The reasons scholars concerned with the issue mention for this failure include respect for the traditions, or heavy opposition in Parliament. After the First World War Hungary lost two-thirds of its territory, and the government did not want exclude these territories of the private law development (in the hope that they can be recovered soon).

The third serious attempt for producing a private legal book (badly needed by the economy that recently started to adopt capitalist practices) was started in 1897. After several new starts, the Proposal for an Act of Private Law (Hungarian abbreviation: MJT) was presented to the Parliament finally by the Commission of the Ministry of Justice in 1928.

This was only a proposal and ultimately could not turn to be an act.

Fortunately this work of law did not disappear due the fact of the Minis-

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try send the proposal to many users of the law (tribunals, lawyers, public authorities, chambers, stock exchange), who started to use it. Its influence is still alive, because during the drafting of the current civil codex in 1959, the drafters took the MJT as one of their models.

2. The civil codex currently in effect is called the Book of Civil Law (Hungarian abbreviation: Ptk) and came into force in 1959. During this era, Hungary was under the rule of the socialism.

The leaders of the country tried to rule every aspect of life, which was the reason why they tried to create a new civil code. Naturally, the version of the codex currently in effect differs a lot from its original version. The socialist leaders wanted to draft a codex that would support social changes at the level of the average people. One of the signs of the above intention was the choice of the name of the codex: instead of following Western European tradition in using the term private law, they used the term civil to refer to the relevant legal field as well as the codex itself, since they thought that the name private is too "bourgeois", and "capitalist". The professionalism of the lawyers involved, previous practice, and common sense has helped to avoid the traps that were awaiting the socialist codex. It did not become particularly streamlined, certain concepts and institutions from the previous centuries were incorporated, and the socialist era did not ruin the whole build-up. Naturally, the whole system had to be reviewed from time to time, but substantial alterations had to take place only as late as in 1977, when the norms of the boilerplate contracts and several important rules were incorporated. Naturally, the measures that did not comply with the principles of the market economy had to be deregulated, changed or deleted during the political changes in the 1990s.

3. The fact the Civil Code of 1959 is still able to function in the contemporary market economy shows that the creators were right about the conception and the dogmatism.

Two big challenges arose for the Civil Code in the 90’s, the first being the establishment of the market economy, and the second Hungary's joining of the European Union (which also put new tasks on law-makers concerning the harmonization of the country’s legal system with that of the EU). The current Hungarian codex consists of five books, the Introductory Provisions, Persons, Ownership, Contract law, Inheritance law and Closing Provisions. In the Introductory Provisions of the Civil Code the basic principles of private law are outlined, including the principles of good faith, of fairness, the consequences of the abuse of rights, and the principle of nemo suam turpitudonem (the use of the principles help to achieve the monist conception).

4. In 1998, the Hungarian Government issued a decree (No. 1050/1998) that decided on the drafting of a new Book of Civil Law. In this document, the Hungarian government announced the “the beginning of modernisation of the private law, and the Civil Code itself”. The government decree also established the gremium responsible for the codification, the Civil Law Codificational Main Committee. It was published in the government decree 1009/2002 (31 Jan.) in Magyar Közlöny and thus put up for professional and general discussion. On the basis of various proposals for modification, the editing committee rewrote the concept in 2002, which was discussed by the Main Committee on 18 November, and was proposed to the government for

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discussion. The government agreed to the concept with the decree 1003/2003 (25 Jan.), and published it in volume 8 of Magyar Közlöny in 2003.

5. There were several reasons for creating a new Book of Civil Law. One of them is the need for legal institutions supporting the mechanisms of capitalist market economy and the contemporary needs of the people. For example, during the creation of the act currently in effect the regulation of ownership and ensuring contractual freedom were not among the priorities of the law-maker, which is reflected in the structure of the code, in spite of the necessary modifications carried out since its creation. The second reason was the need to return certain private legal rules that had been codified out of the Civil Law Book (during the private law legislation process) in different acts within the framework of the Civil Code. Madl claimed for example, that “the new codex gives an opportunity to return to Hungary’s own traditions, as well as to the European codification traditions”. Vékás argues, for example, that the hundred modifications enacted on the 1959 code have „loosened the structure of the codex so much that it could not have fulfilled its leading role, its role as an ’economic constitution’ any more”. In the early years of 2000, a commission responsible for drafting the Civil Code was created, under the leadership of Prof. Lajos Vékás. Under his direction a new proposal for the civil code was put forth.. However, the Ministry of Justice took over the drafting of the new Civil Code, and made a newer proposal. This was voted for by Parliament in 2009 (2009/CXX.). In the next year the Constitution Court considered the latter proposal unconstitutional, because of the short time available for preparing for the application of the new Civil Code and the possible attack it makes on legal reliability. The new government in 2010 decided to continue the codification process, and the fruit of the work appeared in the form of yet another proposal.

6. Some disputes took place during the process of the drafting. The first question concerned the need for a new Civil Code. Another question concerned the constitutive elements of the Code. The newest version of the Civil Code (2012), for example, integrated the Hungarian company act into the text of the Civil Code. The next question concerned the relationship of the contemporary and the new civil code structure. Should law makers s plan a fully new Codex, or should they maintained the inner system and structure, and make only small changes in the text of the Private Code? There was a question too about preparing a commercial code or not. In most of the European countries there is a dualist system in the field of the private law, with the simultaneous existence of the Commercial Code and a General Private Law Code (cf. Germany, where the BGB and HGB coexist).

7. It seems that the "monist" way of the private legal regulation is an easier solution than the "dualist" way with two different codes operating together. But both ways have their own advan-

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tages and disadvantages. In the monist system (and mainly during the process of the drafting of the codification), the law maker has to pay attention to the fact that the act would be used by the consumers, average people, enterprises and merchants. Of course, the monist or dualist nature of the system does not play a role in all areas of the private code: in family law or inheritance law only one type of rule can exist anyway. The critical area of the monist regulation is the contract law, since contracts can generally be divided into different groups depending on the properties of the parties. First, there are the commercial contracts (e.g. franchising, leasing), second, there are contracts serving the needs of average people (e.g. loans, life insurance contracts), and third there is a mixed group of contracts that can be made between all kinds of parties. Vékás outlines that only the firm and unchangeable norms should be integrated into the Civil Code, the rules that are often modified should not be placed there, since it undermines law security and reliability, which are the key properties of legal systems.

8. Let us take a look at the common points of the three recent proposals, the one prepared by the Vékás-group, the one made in 2009, and the one prepared in 2012. The three proposals all opted for a monist system, and all contain Introductory Provisions, and norms organized into the following books: Persons, Family Law, Ownership, Contract Law, Inheritance Law and Closing Provisions. The Family Act is an independent act at the moment, but the proposals all wished to integrate it into the Civil Code (the integration of the Family Act with the Civil Code is an acceptable idea among experts). The 2012 proposal included the Company Act rules in the Codex as well. The sources the three drafts used for deciding what to include in the civil codex were the current codex itself, past court decisions and current practices, and the international documents. The drafters of the new Hungarian Civil Code all tried to follow the international trends, and paid particular attention to the civil codes being drafted at the moment (e.g. Quebec, the Netherlands, the Ukraine). None of the drafts aimed to take one foreign model as example, they aimed at relying on more than one at the same time. These include the Code Civil, the BGB, the ABGB, and the ZGB, as well as the 1928 Hungarian draft discussed above.

There remained, however, significant differences between the foreign models above and the Hungarian one. For example, as opposed to the Civil Code of the Netherlands, which came into effect gradually, the Hungarian one was planned to take effect as a whole at once, to avoid a decade-long codification process.

9. The Proposals could be regarded as coherent, purely professional works. They were influenced by the Vienna Convention, by Unidroit, and PECL. The biggest part of the codices is constituted by the Law of Obligation. The Vékás-proposal is basically a modified pandect system. It is centred around the idea of the social market economy. This means that the Code regards normal persons as equal parties in the contractual relationships. They have a right to establish contracts and to concede them. But the proposal submits that the weaker parties in the legal relations should be protected from negative outer influences. (A private legal regulation with dispositive rules assumes the equality of the parties.) The three proposals differ at certain points, too. For example, the Vékás Proposal tried to regulate only a limited number of

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issues, possible subjects of law. The 2012 draft provides rules for merchandising, but tries to bring in protective norms in some cases (consumers, natural persons, families). The private property occupies the central object of the law. Similarly important is contractual freedom.

These principles are respected by the law maker, and it only intervenes when social justice or the aims of the public challenge them The third pillar of the private law is the acceptation of the free and peaceful freedom of corporation and union (i.e. the freedom of founding companies, societies, foundations).

10. Finally we turn to issues of how the three proposals deal with the European Union norms are implantation of European Union norms. The definition of the consumer is the same in the three proposals, a property that they share with the current code as well. It has a very simple explanation; all of these versions and the contemporary Hungarian Code are mainly based on the directives of the EU, which contains the term „consumer”. The European norms of the consumer law were integrated in the current Hungarian civil code. The three proposals for a new Civil Code also chose this solution. This is a solution that accords with the directives, since they give the national law-maker the right to introduce stricter regulations than the original directive. (This is one of the reasons why Vékás outlines that the use of the directives could not guarantee unified private law in the EU.) By putting the norms in a higher law the duplication of norms is also avoided. Integration following the above model is not always a perfect solution, however, for the following reasons. Whereas the main idea of contract law is the equality of the contractual partners, the EU regulations concerning consumer protection are based on the idea that one of the contractual partners (the consumer) enjoys more rights and advantages than the other (the merchant). Also, whereas private legal norms mainly are dispositive, in the domain of consumer protection they are compulsory. The 2009 draft, for example, would have given the same protection to the consumers as to the foundations and non-profit companies, if their partner is at least a medium-sized corporation during their consumer-type contracts. The law-maker justifies the necessary protection as the lack of market knowledge and the weaknesses of the consumer will.

Position of Courts in the Polish legal system over the past two decades: Chosen aspects Maciej Przysucha 2nd year student, Katowice

1. Introduction – Evaluation of the present legal situation as a result of binding legal acts.

Today, the system of government of the Republic of Poland is based on the principle of separate powers. This principle is expressed in Art. 10 of the Constitution of the Republic of Poland

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of 2 April 1997 (Dz. U. No. 78, item 483), according to which the Polish system is based on the separation of and balance between the legislative, executive and judicial powers. The organizational structure of the courts is subject to the provisions of Chapter VIII of the fundamental law (Art. 173-201). Additionally, it is regulated in detail by lower ranking acts such as the Law on the System of Common Courts (LSCC) (Dz. U. No. 56, item 459) and Rules concerning the Operation of Ordinary Courts (ROOC) (Dz. U. No. 38, item 249) enacted as a regulation of the Minister of Justice.

Formation of the Polish judicial system has been a dynamic process affected by many factors.

A point of departure for the present analysis will be the position of the judicature at the time of the People’s Republic of Poland (PRP), governed by the principle of centralized and uniform state power. In that approach, courts did not form a separate power, either equal to the legislator or controlling the other powers. As a result (beside other issues), their operation could be governed arbitrarily.

The speedy process of adaptation of the Polish governmental system (including its judiciary branch) was necessary due to the state’s aspirations to become a member of the Council of Europe and, subsequently, of the European Union. A fundamental law of 1992 called “Small Constitution” was in fact a temporary act and did not provide for any changes in the area of the judicature. It was the April Constitution of 1997 that laid down the foundations for the current organizational structure of Polish courts. However, the long-established practice and the actual position of courts, being partly a result of the old manner of applying the law, interfere with the model adopted in the Constitution, which seriously corrupts the system. Conducive to such situation has been the mechanical adoption of legal solutions taken from the old system.

Those solutions where based on the rule of supervision by the Minister of Justice of the courts and judges, embodied in the Rules concerning the Operation of Ordinary Courts (ROOC) (Dz. U. No. 38, item 249) enacted in the form of a regulation by the Minister of Justice.

The analysis of the system solutions in this area will allow for a better understanding of the present concept of court operation.

This paper will focus on presenting and discussing the acts governing the court system in the Republic of Poland in relation to constitutional provisions.

2. Position of courts and judges in 1989, in the eve of legal system changes connected with the collapse of the People’s Republic of Poland (PRP).

The PRP Constitution was generally a mere declaration as there was no corresponding secondary legislation that would implement the constitutional provisions. For instance, Chapter VI of the fundamental law in Art. 46 provided that the issue of “the organizational structure, jurisdiction and procedure of the courts” shall be specified by statute.

The PRP Constitution also contained a similar delegation with regard to the manner of electing the judges, while specifying that judges shall be appointed for a term of office. The delegation of those basic issues to statutes both limited constitutional guarantees and diminished the nor-

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mative value of the Constitution.

It should be noted that such legal construction stipulated the influence of the Minister of Justice (as executive authority) on the election of judges and legal regime of courts. The rules of 1987 governing “the organization and operating principles of common courts, judicial bodies and activities of those courts in all kind of cases”, on the one hand was a compilation of the previously binding rules adopted in the nineteen sixties, and on the other hand was effective till 23 February 2007, when a new regulation was adopted by the Minister of Justice.

It must be noted that the manner of implementation (notwithstanding the content of both regulations) of such solution which inter alia governed “… the internal organization, order and opening times of common courts [and] order of court proceedings and exercising of duties by judges exercising administrative functions…” remained the same as in the PRP period – it was a regulation enacted by the Minister of Justice, an executive authority.

The statute which regulated the system of courts in a uniform manner – the Law on the System of Common Courts – was enacted on 20 June 1985 (Dz. U. of 12 July 1985) and was effective till 2001.

3. Guaranties derived from the April Constitution of 1997 The currently binding Constitution stipulates in Article 173 that courts constitute a separate power and shall be independent of other branches of power. Hence, the interpretation of Article 10 on separation of the three powers in the Polish system has been strengthened by the abovementioned article, which guarantees separation and independence of the courts. However, the principles established in the Constitution are severely limited in practice. Notably, the lower ranking acts of law which regulate the organizational structure of courts and their operation – the abovementioned LSCC and Rules concerning the Operation of Ordinary Courts (ROOC) are in their essence transposed from the previous legal system – a system in which the judiciary was not a separate power, but merely a part of the so cold “Department of Justice”, a unit of the executive power.

When focusing on the differences between the former and current legal systems, it should be noted that a change in the system of government did not entail a change in the internal organization of courts. In fact, under the present system the Minister of Justice has promulgated the ROOC in the same way as it used to be done 30 years ago.

The aim of this paper, rather than present a detailed analysis of the substance of these acts, is to indicate that despite a change in the legal concept of the governmental system – some assumptions from the previous period still prevail. And while the LSCC meets the requirements of a general law passed by the parliament, the ROOC has been introduced as a bylaw – an act of an executive authority, the Minister of Justice, and it governs the issues that do not fall under the scope of the statutory delegation and infringes upon the principle of statutory exclusivity provided for in Article 176(2) of the Constitution.

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In the PRP legal system based on the rule of uniformity of powers, the fact that the Minister of Justice stepped in and passed a bylaw governing the court system and the status of judges did not really matter. But in the present model of the separation of powers, such interference is simply unacceptable.

A judge who in terms of his professional status falls under the authority of statutes and the Constitution (Art. 178(1) of the Constitution) cannot be bound by the reasoning of a bylaw promulgated by a representative of the executive power, if the scope of regulation is connected with the organizational and procedural structure of the courts. In this perspective the independence of the courts declared in Article 173 of the Constitution does not in fact exist, when the executive branch has such a wide and unimpeded prerogative to regulate the court system. The negative influence of such regulations on exercising of the judicial power does not require explanation.

The concept of promulgating the internal rules of common court operation by the Minister of Justice derives from the principle of control that the Minister maintained over common courts.

But some other solutions are possible, e.g. the Supreme Court of Poland is organized according to the rules enacted in the form of a Resolution of the General Assembly of the Supreme Court. In theory, since the Constitution does not differentiate between the legal status of courts of various instances, it would be possible to make the operations of the Supreme Court subject to the Minister of Justice.

The analysis of chosen aspects of inconsistencies between the statutes and the Constitution Let us now look at the content of the Minister’s regulation through the matters that are regulated therein. A question arises whether the Minister of Justice has gone beyond the purely administrative regulations of court operation, by stepping in to regulate the organizational and procedural structure reserved for the Constitution and the statutes, and whether he does not interfere in the status of judges and the concept of separate powers (Art. 173 of Constitution).

The first doubt concerns the formulation of paragraph 1 of the said instrument, which defines the scope of regulation. How should the phrases: “order of court proceedings” or “the course of administrative proceedings in matters relating to the court jurisdiction” be understood?

Notwithstanding the attempts to define those notions, it should be noted that regulations in this area should not interfere in or supplement the statutes, or create organizational structures which are unaccounted for in the Law on the System of Common Courts. How the regulation works in fact will be shown in following analysis.

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The analysis will specifically focus on a few examples of the ROOC exceeding the statutory authorization.

When the Regulation of the Minister of Justice – Rules concerning the Operation of Ordinary Courts of 23 February 2007 came into force, judges were divided into two groups in terms of their working time.

The first group comprises the judges performing administrative functions. Their working time is determined by the working hours of the courts, so it is fixed – and as such has nothing in common with the “task-based working time”. The second group includes the rest of the judges who do not hold any administrative positions in the court. They work on a task-based time basis referred to in Art. 83 of the LSCC. This is an example of a situation when the executive power interferes in the system of courts de facto by limiting the effectiveness of their work.

Paragraph 18 of the ROCC provides for the establishment of the so called “court proceedings sections”, namely structures with more limited competence than court divisions. Such regulations illustrate how an executive authority, the Minister of Justice, forms structures not stated in the Law on the System of the Common Courts.

Similarly, serious doubts are cast by Paragraph 45(2) of the Rules which holds that the President of the Court can order a two-shift work system if necessary, while the judges are guaranteed a task-based working time by statute (Art. 83 LSCC). A two-shift work system resembles rather the idea of improving the operation of a factory and is not suitable for courts which require proper conditions to settle citizens’ issues – a power delegated to them by the authority of the Constitution.

Chapters 3 to 7 of the ROOC contain classic procedures to be applied for a particular category of cases heard by the judges. These provisions are laid out in a form similar to regulations governing specific type of court proceedings stipulated in the code of civil or penal procedure (e.g. session preparation, document service, other acts of court, court session schedule, judicial decisions).

If the Minister could effectively make such impositions in the form of a regulation, he could as well introduce rules of evidence in the form of bylaw for the sake of a higher internal order, which could affect court rulings.

Unquestionably, then, such provisions should be promulgated as a statute, not as a bylaw.

Their relative rationality should not be used as an argument for their binding force in courts’ application of law. Among the provisions that are seemingly rational and necessary the authority slips provisions which destroy the constitutional order and infringes the rights guaranteed by the Constitution. Indeed, a question must be raised whether the Constitution and the statutes enacted by the Parliament under the current legal system should be treated seriously or if they are redundant in view of the possibility to regulate those issues at the level of the Minister of Justice? Presenting the problem in this way could bring us to the conclusion that the change

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of the former legal system was not necessary.

The analysis of the current regulations reveals the extent to which the solutions adopted in the judiciary imitate the solutions applied in the Peoples’ Republic of Poland.

Departure from the principle of a uniform state power and transition to a system based on the separation of powers has in fact brought no significant changes to the essence of the legal position of the courts. The principle expressed in Article 173 of the Constitution that courts in Poland are separate and independent of the other powers is actually seriously restricted. This is caused by the fact that we adopted the solutions of the former legal system and that the executive authority deeply believes it to be necessary to interfere in the way the courts are organized. This also partly results from the fact that representatives of the executive branch are not interested in depriving themselves of the control over the courts.

The above remarks come down to the fact that the Minister of Justice intends to improve the operation of courts by massive administrative machine (the Ministry officials but also judges who play a double role: that of a judge and the ministry deputy responsible for their work to the Minister). And this machine is in fact to be blamed for the tardy operation of the third power.

4. Disturbed balance between the powers in practice Strikingly, the statistics shows that more than 30 % of all judges perform some administrative functions. Those judges hold the position of court presidents, vice-presidents and division chairs.

Court presidents are appointed directly by the Minister of Justice, and the other “function judges� are appointed upon proposal of the court president. In that scenario, court presidents report to the Minister of Justice in terms of administrative control over the courts. This control, as a rule, should not affect court decisions but this remains in the sphere of theory.

Taking into consideration the benefits that come from holding an administrative position (total or partial exclusion from proceedings, higher salaries, better office space), the independence of such judges is put into question. Also the exclusion from the proceedings results in a slow adjudication process.

In theory, the ROOC enacted via a bylaw by the Minister of Justice should make the content of the statute more precise and should be promulgated on the statutory basis. In practice, however, the regulation in fact replaces the statute.

5. Conclusion The debate on the shape of the judicial system in Poland usually ignores the fact that the third power in its present form has been inherited from the former legal system. The separation of the function of the Minister of Justice and Public Prosecutor General was one of the examples of introducing a clear dividing line between the executive authority and the judicature. It was also a successful attempt of providing appropriate proportions between the powers.

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The influence of the executive branch on the judicature is politically convenient for the ruling politicians, which greatly impedes the introduction of subsequent changes. Nonetheless the current situation in courts could be improved by taking seriously the constitutional principles of “separation of and balance between” powers, which are breached these days.

The above analysis reveals that a major part of the existing regulations concerning the judicial system has been copied by the Third Republic of Poland from the PRP and has become a point of reference for the new statutory and non-statutory provisions. Notably, those who came to power after 1989 did not see the need to change the fundamentals of court operations, and decided to introduce only some subtle changes, while at the same time making use of legal prerogatives of the former system, which contradicts the rule of separation of powers, by giving excessive authority to the executive branch.

Pioneering Public-Private Partnership Provisions Protect Public Ivo Emanuilov BLC Student Sofia

On 15th June 2012 the Act on Public-Private Partnerships (PPP) was promulgated in the State Gazette, issue no. 45. The Act will come into force on 1 st January 2013. It provides for the terms and conditions for realising PPPs. Long-awaited by businesses in Bulgaria, the new Act sets high aims, which include: to provide development of high quality and accessible services of public interest by achieving best value from the invested public means, to give opportunity for encouragement of private investments in construction, maintenance and management of sites of technical and social infrastructure and in carrying out activities of public interest and to create guarantees for protection of public assets and for effective management of the public means while realizing PPPs. PPP is defined as a long-term contractual cooperation between one or more public partners and one or more private partners for carrying out activity of public interest. According to the Act, public interest activities are provision or ensuring provision of one or more services of public interest through financing, construction, management, maintenance of car parks, garages, city transport infrastructure, monitoring and security systems, street light systems, green parks, parks and gardens etc. Some commentators argue that the Act on PPP also brings with it a lot of unresolved issues which have to be scrutinised and settled. Businesses hope that the new legislation will provide an adequate legal framework to regulate the increasing number of investment projects and hence that it will facilitate partnerships built upon ‘long-term cooperation’.

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The landmark case R.R. v. Poland – – the breakthrough in the area of reproductive rights?

Joanna Kisielińska, BLC Toruń 1st year

On 26th May 2011 the European Court of Human Rights (ECHR) gave a judgment in the case R.R. v. Poland. The Court held that Poland violated Article 3 and Article 8 of the European Convention on Human Rights when repeatedly denying the access to prenatal testing and legal abortion. The judgment was welcomed with great enthusiasm by people working in the field of reproductive rights.

Facts of the case The Applicant was a woman who had a right to legal abortion under the Polish Protection of the Human Foetus and Conditions Permitting Pregnancy Termination Act, since her foetus was severely malformed. She was deliberately refused genetic tests during her early pregnancy by doctors from several hospitals and clinics in different parts of the country. Despite the fact that the Applicant’s gynaecologist noticed irregularities in a sonogram, the doctors withheld the tests until the legal time limit for abortion (twelve weeks) had expired. It was certain that only genetic tests could establish whether the initial diagnosis was correct. Moreover, R.R. was criticized by doctors only for considering an abortion. She was desperately trying to get access to appropriate prenatal examinations which would have enabled her to decide whether or not to seek a legal abortion. However, only irrelevant and useless tests were carried out. It should be stressed that a prenatal examination is a prerequisite for undergoing an abortion in Poland. When amniocentesis confirmed the suspicion that Applicant’s baby had a Turner syndrome, it was too late for an abortion according to domestic law.

Violation of the prohibition of inhuman or degrading treatment Treatment might be considered as “degrading” when it “arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (Iwańczuk v Poland). For the first time, the ECHR found a violation of Article 3 in a reproductive freedom case. The Court held that repeated denial of genetic tests, which prevented R.R. from obtaining information about the foetus’ health could amount to inhuman or degrading treatment. It was noted that R.R. was in an extremely vulnerable position, having to “endure weeks of painful uncertainty concerning the health of her foetus, her own and her family’s future and the prospect of raising a child suffering from an incurable ailment”. The Court emphasized that the assessment of minimum level of severity depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age or state of

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health of the victim. R.R. was shabbily treated and humiliated by the doctors dealing with her case. Under domestic law, the State was definitely obliged to ensure access to prenatal testing, especially if there was a suspicion of genetic disorder.

The Court concluded that the Applicant’s suffering reached the minimum threshold of severity required and that Article 3 has been breached.

Violation of the right to privacy and family life The ECHR stated categorically that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy. In regard to the claim under Article 8, the Court referred also to two significant cases: Tysiąc v. Poland and A, B and C v. Ireland, stating that there had to be a coherent framework to ensure the practical access to abortion-related medical services, i.e. appropriate legislation and procedures. Prenatal tests should have been carried out in reasonable time in order to determine whether or not the conditions for legal abortion had been met.

The Court focused on the fact that Article 8 entails to have the access to health information and held that a patient ought to be always provided with clear and sufficient information. The ECHR in its judgment followed the judicature from previous decisions (McGinley and Egan v. the United Kingdom, Roche v. the United Kingdom or K.H. and Others v. Slovakia). However, it was the first time when access to health information was stated in respect of the pretreatment phase. If Polish law allows for abortion in enumerated cases, it has to be “an adequate legal and procedural framework” to guarantee reliable information on foetus’ health. Furthermore, the Court noted that the Medical Profession Act contains a general obligation for doctors to give patients comprehensible information about the diagnosis and possible therapeutic methods. Poland did not provide R.R. with a possibility and effective mechanism to exercise the patient’s fundamental right to information and breached its positive obligations under Article 8.

Conscientious objection Additionally, the discussed judgment relates to a so-called conscientious objection. It can be defined as the right of doctors to refuse certain services to their patients on grounds of conscience. However, the Court determined that there is an obligation imposed on the State to organise the health system in such a way as to enable health professionals exercise their freedom of conscience and simultaneously do not prevent patients from obtaining access to services. This statement is of the utmost importance for sexual health and rights of women, since references to a right to conscientious objection in the abortion context are becoming increasingly common in Europe (The International Council on Human Rights Policy reports).

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Domestic aftermath R.R. v. Poland is in the group of other cases, like Tysiąc v. Poland, P. and S. v. Poland or Z. v.

Poland, which were brought against Poland before the ECHR on the same issue. Hence, it is clearly visible that access to reproductive rights is still a great problem in Poland: the availability of legal abortion is unsatisfactory.

The Polish Government should always, after ECHR judgments, endeavour to eliminate all similar incorrectness’s in the future. In this particular case legislative measures should be taken. The health care system should be re-organized in such a way to provide women with access to prenatal tests and legal abortion. Patients ought to have effective measures to exact their rights, as well. Finally, the freedom of conscience of individual practitioners should never make a harm to the patient. There is no space for private opinions, views and prejudices when it comes to pregnant women’s health and access to medical services. Moreover, the woman’s decision to have a legal abortion must not influence her right to health information and medical care.

STRIKING LAWYERS? We are interested in knowing the views of our readers on the most controversial issues currently facing the legal profession and market for legal services and so on page 64 have introduced a new section looking for your views on this and other issues.

So to start off, here’s one issue to consider, the right of lawyers to strike???? ...In England the changes in the fee and payment structures, being forced through by the current government, has led to the criminal bar threatening strike action. Trainee solicitors have also expressed concern at the removal of the minimum wage entitlement in order to encourage law firms to employ more trainees.

In Greece, lawyers recently went on strike over economic changes, whilst in Belgium; French speaking lawyers went on strike following changes in the level of legal aid fee rates. March 2012 saw lawyers striking in Italy.

So, should lawyers have the right to strike on any, or all issues, irrespective of whether they are in public or private practice?

Or, is a government entitled to remove this right in legislation?

We await your views.....!!!

Denise Ashmore, BLC Director

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Has the paradigm of hierarchy of sources in continental law shifted?

Ivo Emanuilov BLC Student Sofia

The title of the present article may be read as bizarre and challenging by some, as most of continental law’s paradigms seem to be solid, sustained and certainly far from ‘shifting’. The practice of the judiciary in some countries, however, now and then demonstrates that not all of the foundations upon which the continental legal system is built are as firm as they may seem.

The crux may turn out to be the changing effect of the case-law of supreme courts on the decisions of lower courts as regards similar cases based on similar facts. The subject of discussion will be the effect of the so-called ‘interpretative judicial acts’, i.e. interpretation decisions and interpretation decrees, of the Supreme Court of Cassation in Bulgaria. The latter being a state representative of the family of continental law allows the analysis to focus on the general structure of hierarchy of sources of law, and more precisely – the effect it has on the decisions of lower courts. It is therefore necessary to briefly outline the Bulgarian model as regards the hierarchy of sources of law, despite the fact that it is much the same in most civil law states.

The Bulgarian Constitution (BC) provides that Bulgaria is a state governed by the rule of law and that it is also governed in accordance with its Constitution and laws. Besides, it provides for the Constitution to act as a ‘supreme law’ and declares that no other laws shall contravene its provisions. According to Article 124 of the BC, the Supreme Court of Cassation exercises supreme judicial oversight as to the precise and equal application of the law by all courts. The provisions of Article 2 of the Law on Judiciary Act (LJA) reads: ‘The judicial authorities shall follow the Constitution and the principles laid down in this Act.’ It proclaims the Constitution as the supreme law and implies an obligation upon the judiciary to follow its provisions. Thus, it should be maintained that the Constitution is a sui generis apex of the pyramid of sources. It is followed by international treaties which have been ratified in accordance with the constitutional procedure, promulgated and which are in force with respect to the Republic of Bulgaria as part of the legislation of the state. They have primacy over any conflicting provision of the domestic legislation, i.e. over any other law passed by the National Assembly. Further, the picture is complemented by laws passed by the National Assembly in accordance with a procedure established in the Constitution itself. Finally, at the base of the pyramid lies subdelegated legislation. Contemporary Bulgarian legal theory maintains that acts with no legal normative nature (i.e. directly applicable EU law, acts passed by the National Assembly or subdelegated legislation) shall not be regarded as sources of law. Thus, any interpretative acts of courts or such by which the Supreme Court of Cassation exercises its oversight as to the precise and equal application of the law are excluded and do not fit within the ambit of the term ‘source of law’.

However, it could be argued that if the literal rule of statutory interpretation is applied (i.e.

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where the words of the statute are given their natural or ordinary meaning), the provision of Article 130 (2) of the LJA leads to quite the opposite conclusion as regards interpretation decisions and interpretation decrees. It provides that the latter are binding on the judiciary and executive authorities, on the local self-government authorities, as well as on all authorities issuing administrative acts. If so, then how can one not admit that interpretation decisions and decrees of the supreme courts are a source of law, since they are binding on the judiciary and executive authorities?

Some authors in Bulgaria believe that such a distinction – as to whether interpretation decisions and decrees of the supreme courts are sources of law or not – is of no practical importance, for they are binding anyway. In my opinion such a position is objectionable. Continental law is fundamentally built on its flawless structure of sources of law (namely, the idea of a pyramid of sources developed by Hans Kelsen). If one can ‘add’ or ‘remove’ certain sources to this pyramid regardless of their legal normative nature, then how can such a pyramid be held to remain stable? This issue is further deepened by the effect this provision has on the judiciary and especially ordinary judges in lower courts. Not only are the interpretation decisions and decrees of the supreme courts binding on the judiciary but also they are significantly influential as regards the case-law of the supreme courts in general. What is meant here is that judges from lower courts are more willing to apply the case-law of the Supreme Court of Cassation when confronted with a similar case rather than interpret the law so as to achieve justice.

Generally speaking, judges face jeopardy in two respects. The first concerns the eventuality that their judgement may be appealed and if granted leave and reviewed it may turn out that their career development is impeded, as this constitutes an element of the assessment of any judge’s individual work by the Supreme Judicial Council. The second danger concerns ‘blind’ following of case-law of the supreme courts and therefore compromising the achievement of justice and causing deficiencies in the judiciary which eventually result in incompetence and negligence. These two vulnerabilities to which the judiciary is exposed create an immense risk of dependency. By virtue of the aforesaid my point is that the classical and presumably strong paradigm of sources of law in the continental legal system is now shifting. The question is: in what direction is it shifting and what effect is it expected to have on the whole legal system?

To my thinking, an analogy as regards the rule of ‘stare decisis’, as understood in English law, could offer a sufficient understanding of the shift occurring. Generally, the rule provides for interpretation in identical manner on identical cases. One might argue that such a concept abolishes the whole idea of consistency which is believed to be provided by the written constitution in continental legal systems. It is not enough, however, to merely state that since there is a written constitution and since apparently clear rules have been established as regards the hierarchy of sources, it should unconditionally be acknowledged as true that consistency in the legal system has been attained. A

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sustainable argument in favour of the position that the traditional paradigm of hierarchy of sources is not shifting could prove to be the rule established in Article 5 of the French Civil Code. It expressly forbids judges from deciding cases solely on the basis of ‘stare decisis’.

That does not necessarily exclude case-law from sources of law. The issue however, as pointed out above, is not the absence of general legal rule or the existence of prohibition.

What is alarming is that more and more young judges are ready to follow the case-law of their colleagues from higher courts if the case resembles another case which has previously been heard by the court. It could finally turn out that a judge’s argumentation simply follows the argumentation of a formerly decided case which presumably has not been appealed or a leave has not been granted. Equally, some judges lean towards following the case-law practice of their own colleagues from the same court when similar cases are concerned. To say the least, this often results in developing case-law which demonstrates one and the same deficiency and repeats similar mistakes.

Continental lawyers and judges, in particular, are called upon to seek for the ‘spirit’ of the law and to approach each individual case with due diligence. Instead, it seems that lawyers in the judiciary are more willing to take a rather formalistic and verbatim approach in strictly following the case-law which suits their specific case best. This status quo forces solicitors to also conduct an in-depth research of case-law so as to increase their chances of winning a particular case as the judge is more likely to apply the legal rule in the same way they did or, in most situations, the higher court did on previous occasions. Hence, it is reasonable to ask the question whether the continental legal system is changing in an unprecedented way given the case -by-case principle taking the lead. In my opinion it is in any case a hard answer to give. Moreover, it is beyond the scope of the present article which aims simply to raise questions which some of us may conveniently try to evade, ensuring the consistency of something which might no longer be what it used to be. Nevertheless, provoking a discussion as to this state of affairs is not by any means unnecessary. Scrutiny and thorough assessment of the methods continental lawyers tend to apply in resolving legal issues is definitely a study worth conducting.

The outcome of such analysis could provide researchers and statesmen with valuable ideas as to the evolution of certain traditional paradigms and dogmas in continental law.

In a recent legal and sociological study conducted in Bulgaria by an NGO in relation to the ongoing reform of the judiciary, magistrates themselves outlined the most evident problems of the judiciary. They concluded that current laws do not facilitate justice and legislative practices need to change so as to ensure stable legislation. Some of the magistrates, an isolated group though, recommend the introduction of case-law as a source of law and recognising the competence of the Constitutional court to approve it. It is obvious that some magistrates are beginning to realise the effect case-law has on the legal system as a potential source. Maybe we are not that far from the time when many of the established statutory and non-statutory paradigms will evolve, including the one of hierarchy of sources, despite the fact it seems to be petrified. Still, an evolution of such intensity is unlikely to occur in a short time. Nonetheless, it is not doubtful, in my opinion, that developments to that effect are already taking place.

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Football optimist sues church for wrecking his playing career Steve Terrett

UK Legal Issues

BLC Deputy Director, Warsaw

OBITER

DICTA

For those who think that the British legal system is immune from “American-style” over-litigiousness, where claimants sue McDonalds for the fact that their coffee is too hot, microwave manufacturers for the fact that their product is unsuitable for drying wet cats, or nightclub owners for the fact that a client (trying to enter without paying the club’s entrance fee) injured herself whilst climbing through the bathroom window, think again!

Arquimedes Nganga

46-year-old Arquimedes Nganga, who currently lives in London, recently sued the Baptist Union of Great Britain Church for £10 million.

The reason? He believes that, by becoming a “fervent evangelist” and consequently concentrating less on his football career, the church denied him the chance to become a professional footballer, for which he estimates he would have earned £20,000 per week, playing at Manchester United!

Mr Nganga used to play for a third division side in his native Portugal, before quit football completely at the age of 25 to devote his life to the Baptist Church. Despite having never earned more than £200 a month playing semi-professionally, he is convinced that he would have had a long career in England’s Football Premiership. He says: "I see many players playing today who I am not inferior to – and perhaps even better than. Most midfielders are either defensive or attacking but I was both. I had something new."

Naturally, seeking to blame someone other than himself for his life choices, Mr Nganga has argued that the Church "conspired to defraud me of my finances, time and my life" and alleges that the church caused him psychological harm and defrauded him of money through compulsory donations.

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Deploying a formation that Alex Ferguson himself would probably describe as 0-0-1 (indicating likelihood of success-coherency of argument-and optimism), Mr Nganga is clearly determined to attack. However, in this writer’s opinion, even the ageing Rio Ferdinand would be capable of defending this claim. Nevertheless, if the claim is successful, I already have prepared a claim against the world’s major beer manufacturers for the fact that they deprived me of winning the Premiership as a member of the Liverpool FC team. Perhaps I should prepare a claim against the players of Liverpool FC as well, since they have also played their part in my team’s failure in recent years.

Why not write to us with examples of silly claims from your country, or tell us if you feel litigiousness is a genuine problem facing your legal system or merely media hype?

Ronaldo finds no problem in combining church obligations with a successful football career

Bohdan Winiarski Scholarships 2013 The Lauterpacht Centre for International Law at Cambridge University is currently advertising a prestigious scholarship that may be of interest to our readers.

The scholarship is intended for young Polish scholars, and offers £3000 to meet the funding for a research visit to the Lauterpacht Centre.

Win big* with the new BLC Obiter Dicta “Question of Law” feature! (* - provided ‘big’ is interpreted as an honourable mention in the next edition of Obiter Dicta) The “Question of Law” is: Bohdan Winiarski participated in a legal dispute resolution mentioned in this edition of Obiter Dicta. Do you know which?

How to win: Send your answers to blcobiterdicta@gmail.com. Be in to win!!

Disclaimer - for the wishful thinkers among our readers! - The Bohdan Winiarski Scholarship will not be awarded on the basis of submitting the correct answer to this question.

The deadline for applications to the scholarship is 13 September. More details can be found on the scholarship webpage here.

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So nearly a mouse.... The extraordinary popularity of the ginger beer case!

Denise Ashmore BLC Director

Identify this well known case in less than three clues....

Clue 1 – a teashop in Paisley Scotland, over 80 years ago..

Clue 2 – a Glasgow lady treated by her friend to a ginger beer ice cream float Yes I can already hear the BLC alumni chorus shouting out the case name... but just to be sure.

Clue 3 – the remains of a snail Yes, it can only be the famous landmark case of Donoghue-vStevenson.

There are few cases that excite students’ imagination nor that stick in their memory more, than the sorry tale of the Mrs Donoghue who, having drank a ginger beer float purchased by her friend, suffered nervous shock believing she had involuntarily consumed the slimy remains of a decomposed snail which she saw sliding from the ginger beer bottle used to make her drink.

Not only does everyone remember the facts of the case, but, most, also remember the words of Lord Atkin when he found in favour of Mrs Donoghue finding that a consumer claim would lie (outside of contract law) against a manufacturer of a product where there was no reasonable chance of intermediate inspection of the product by the seller.

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, “ Who is my neighbour?” ....... Who, then, in law is my neighbour? The answer seems to be- persons who are so closely and directed affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

In a year of important celebrations one might think that the 80 th birthday of the Donoghue case in May 2012, might indeed be overlooked. However, its central place in curriculums in law schools the world over ensures that it does not suffer this fate but instead remains an accredited keystone of the current law of negligence. What other contract law case, after all, can be so loved as to be the subject of its own operetta or book?

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But history could so easily have taken a different turn... a different court on a different day, different judges, other lawyers... another interpretation and application of precedent, even environmental issues of recycling, all had their part to play in this most remarkable case.

In the 21st century, when reductions in legal aid funding and entitlement are criticised for the barriers they raise for equality in access to justice, how did a case from Scotland, initiated by a pauper claimant, manage to reach the English House of Lords. And why did it excite such interest in the minds of five renowned jurists that they needed six months to reach their conclusions and pronounce the majority judgment (3 judges to 2) in the case.

There is no doubt that chance and luck both played their role.....

Indeed, the finding of foreign elements in ginger beer bottles was not at all alien in the Scottish courts.

Three weeks before Mrs Donoghue initiated her case, the Court of Sessions had found against the claimant in Mullen –v- Barr (1929), when damages were sought for nervous shock suffered having consumed ginger beer from a bottle containing the decaying remains of a mouse. (...It appeared that the practice of sharing and recycling ginger beer bottles (with an appearance rather like an old fashioned medicine bottle) was not always that efficient i.e. there were many claims initiated looking to the courts to recognise a duty of care and to award damages for negligence.)

However, save for one dissenting opinion from Lord Hunter, the Court of Sessions was unanimous in finding that no duty of care was owed by an manufacturer to an ultimate consumer, so creating a precedent that would surely prevent any successful conclusion to Mrs Donoghue’s claim.

It fell to Lord Montcrieff to recognise that consumers seeking a remedy for the problem of tainted food and falling before the limitations posed by current contractual and tortious law, was a nettle that needed to be grasped. His finding in favour of Mrs Donoghue, combined with the grant of legal aid in her favour and the loyalty and skill of a team of dedicated lawyers, started the process that culminated in the famous majority decision of House of Lords and lasting fame for the snail.

Who then is the hero of our story?

Is it Mrs Donoghue herself, who had the courage to initiate the claim which was to make legal history? Her final reward is reported as being a settlement of £200, achieved when the case was referred back from the House of Lords to the Scottish courts for resolution and its merit conceded by the executors of the deceased defendant Stevenson.

Or, is the heroine Mrs Donoghue’s unnamed friend, who had the presence of mind to note the label on the bottle identifying the manufacturer as Stevenson?

Or should we eulogise the lawyers and Scottish/ English judiciary, who recognised the funda-

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mental imbalance in the existing law, which was weighted too heavily in favour of the wealthy and influential? .Was it their actions that enabled a more equitable balance to be found, and, a new legal route forged?

Whichever view you take, the case remains a fascinating read, not least as an early example of the competing policy concerns that are still raised today; including the much mooted floodgates argument.

At the end, for both student and teacher, the snail case simply remains an excellent example of the common law system, beloved by all.

Could a mouse have had the same impact??????

A POSSIBLE WIDENING OF THE ROLE OF THE SPECIAL ADVOCATE IN THE UK .... ?

The quandary act faced in all jurisdictions regulated by the European Convention on Human Rights is how to achieve the appropriate balance between the demand for justice for individuals (currently highlighted by the issues of a fair hearing in terrorism trials) and at the same time ensure the protection of citizens and society (in particular the refusal to disclose documents of public interest/safety).

This dilemma is currently central in the UK where the government wishes to extend the secret hearings procedure and the role of the special advocate to all types of civil litigation, rather than as at present only to cases of national security. In brief this would lead to an extension of the secret evidence hearings currently seen in terrorism cases, where a special advocate (security vetted and specially authorised) is appointed to independently test the evidence and arguments put forward by the government in a case of national security where secret materials is not disclosed to the defendant/ detainee or his/ her lawyers. The advocate will have access to the material but will not speak to the defendant/ detainee who is only aware of the assertions made against him but may have no idea of the strength or indeed existence of necessary supporting evidence.

The special advocate system will feature as an article in the next edition of Obiter Dicta, anyone who would like to contribute with examples of a similar system in their own country or of proposals to deal with the issue there, is asked to write to blcobiterdicta@gmail.com Denise Ashmore, BLC Director

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The law is my shepherd: Catholic church legally liable for sexual abuse claims Steve Terrett BLC Deputy Director, Warsaw

The Court of Appeal has given a landmark ruling in which it held that the Catholic Church could be held responsible in law for sexual and physical abuse, including rape, perpetrated by a priest and a nun on a young girl.

The claim was brought by a 47-year-old woman ((known as JGE to preserve her anonymity) who claims to have been assaulted at the Firs children's home in Waterlooville, Hampshire, in the early 1970s. The priest in question (Father Wilfred Baldwin) is now deceased and the claimant seeks compensation directly from the trustees of the Portsmouth Roman Catholic Diocesan Trust.

It should be noted at the outset that a number of crucial factual circumstances remain to be established and that, at this stage of the case, the court has merely dealt with the complicated legal question of whether or not the church could be held liable on the basis of “vicarious liability”, whereby an employer is responsible for torts committed by his employee during the course of such employment. The question as to whether the abuse actually took place remains to be assessed.

Lord Faulks QC, acting on behalf of the trustees, argued that a priest was not in a relationship of employment with the Church and that the vicarious liability doctrine was therefore inapplicable to such cases. He said: "While the priest owes his bishop reverence and obedience, he exercises his ministry as a co-operator and collaborator rather than as someone who is subject to the control of his superior as would be the case in the employment field … [he is] the holder of an ecclesiastical office." In other words, a priest should be viewed as an office-holder and not as an employee. However, acting on behalf of the claimant, Elizabeth-Anne Gumbel QC argued that the relationship of a parish priest to his bishop bore many hallmarks of an employment relationship, especially since the latter appoints the former, and that there need not be any formal employment contract for legal responsibility to attach to one party for the wrongdoings of another.

Thus far, the Court of Appeal has given judgment and the issue awaits consideration by the Supreme Court. However, the Court of Appeal’s (majority 2:1) judgment has caused quite a

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stir by holding that the Church is liable for the alleged abuse committed by its priest and nun.

Giving the leading judgment, Ward LJ stated as follows: “In my judgment the question of control should be viewed in a wider sense than merely enquiring whether the employer has the legal power to control how the employee carries out his work. It should be viewed more in terms of whether the employee is accountable to his superior for the way he does the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others... In this sense the priest is accountable to his bishop.”

This case follows another claim, brought by more than 170 victims, in which the Roman Catholic diocese of Middlesbrough has been held liable for physical and sexual assaults committed by the clergy against children who attended a Yorkshire children’s home. The final outcome of the case could have wide ramifications not only as regards the liability of churches, but also as regards all non-employment situations in which volunteers offer their services in the absence of an employment contract, such as charity work. For a full version of the judgment, see: http:// www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/jge-v-english-province-of-ourlady.pdf Why not write to us and let us know your thoughts as to whether liability should exist in such cases?

Thoughts on the English Legal System If you find it strange, you’re not alone!

Clive Stafford Smith (founder of Reprieve): "The jury system in this country is utter insanity, because you're not allowed to talk to jurors before or after the trial. There's no way of knowing if they did their job properly. And the idea that the defence has to rely on the police for the investigation? Total insanity. I've never met a defence lawyer here who has done any factual investigation for themselves. Total insanity. And the whole notion of a barrister – that he shouldn't have an emotional relationship with his client? Insanity. You cannot represent someone, and meaningfully put them across to the jury, if you don't have a relationship with them."

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Official Olympic sponsors win gold, silver and bronze in Olympic marketing competition Alexander Lovelady BLC Tutor

This example of ambush marketing, by Dutch brewery Bavaria, dismayed official sponsors of the 2010 football world cup. Olympic organisers will be watching vigilantly for similar displays this summer.

The Olympics in modern times have, it sometimes seems, become slightly less about the spirit of sporting competition and slightly more about the spirit of preventing commercial competition. Particularly in preventing competition with the official sponsors of the Olympic games. The importance of the sponsors for the Olympic games, and the importance of the advertising rights for sponsors, have meant that several significant pieces of legislation designed to prevent “ambush marketing” and other commercial exploitation of the games (other than that which is officially sanctioned by the IOC) has been introduced by the UK government in preparation for the current games.

What protection has been introduced?

The Olympic Symbol etc. (Protection) Act 1995 This act creates a “quasi-trademark right” in respect of the following words and symbols:   

The Olympic motto "Citius, Altius, Fortius" (or "Faster, Higher, Stronger") The Olympic symbol of five interlocking rings The words: Olympiad, Olympiads, Olympian, Olympians, Olympic and Olympics.

This act created a right known as "the Olympics association right" which is infringed by unauthorised usage of any of the protected words or symbols. The Act both imposed criminal sanctions and also gave a right to civil remedies which could be pursued by authorised bodies.

Authorised bodies would be named by statutory instrument, so for example the London Organising Committee for the Olympic Games (“LOCOG”) is able to take action under this statute.

The weakness with this act is that it did not specifically tackle the problem of ambush marketing, and left many gaps via which cunning businesses could capitalise on the Olympics without lining the pockets of the games organisers in advance. Up until 30 March 2006, games organisers were forced to resort to tactics utilising trade mark and copyright law, contractual provisions on tickets and trading standards legislation in order to fight these commercial parasites.

The London Olympic Games and Paralympic Games Act 2006 This act, introduced at record speed as soon as the UK was chosen to host the 2012 games,

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has the effect of expanding the scope of protection given to the Olympic and Paralympic Games to prevent unauthorised marketing activities, slogans or anything else that is "likely to create in the public mind an association" between the perpetrator of the act (or their business or goods) and the London Olympic games Such an "association" would infringe a new right, known as the "London Olympic Association Right” (“LOAR”), which is currently vested in LOCOG. The 2006 Act expands the overall list of protected words and expressions to cover two new groups of words. In assessing whether there is a likelihood of an "association" and an infringement of the LOAR, the courts will look at a combination of words from group 1, or a combination of one word (or more) from group 1 with one word (or more) from group 2: Group 1 (any of) Two thousand twelve 2012

and

Group 2 (at least one from group one with one or more of these) Gold

Games

Silver

and

Twenty twelve

Bronze London Medals Sponsor Summer

However, this is not an exhaustive list, and LOCOG has very wide ranging powers in order to prevent unauthorised "association".

Ticket Touting The unauthorised sale of Olympic tickets (whether real tickets or fake) is prohibited under s.31 of the 2006 Act. The previous legal regime would, it was felt, have been inadequate to effectively tackle a number of creative practices that have emerged in respect of both the sale of counterfeit tickets and the resale of authentic ones. It is a criminal offence under s.31 to sell a ticket without written authorisation from LOCOG, and the definition of “sale” has been widened to include offering to sell a ticket, exposing a ticket for sale, advertising the availability of a ticket for purchase and offering or giving a person a ticket in return for goods or services.

The Trade Marks Act 1994 In addition to the specific protection given by the 1995 and 2006 Acts, an amendment to the Trade Marks Act 1994 also gives certain specific protection to Olympic trademarks. Under the amended act, trademarks which consist of any of the protected words or symbols will not be registered.

The LOCOG has also registered 31 trademarks under the 1994 Act, which may or may not ex-

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tend their protection to any greater extent than the special Olympic legislation, but does at least enable the LOCOG to really throw the book at any infringers, much like a flying discus of litigation. The marks registered include various Olympic slogans, the ubiquitous weirdlyshaped 2012 logos and font, and the names of the even weirder Olympic mascots, Wenlock and Mandeville.

Why is the protection needed?

There has been some criticism of the restrictiveness of the laws relating to the protection of 2012 Olympic intellectual property, mainly from affected small businesses. The justifications for the measures, however, are pressing. In order to secure high-value sponsorship, it is necessary to ensure a high degree of exclusivity for sponsors during the games. It is considered by those sponsors that even local-level commercial support for the Olympics acts to devalue the investment that “official partners” put into the Olympics in order to secure high-profile marketing opportunities. It would not perhaps be too extreme to speculate that the willingness of the UK government to implement such restrictive legislation may have been a contributing factor to the successful London bid to host the Olympics…

The organising committees for each Olympic Games do however depend heavily upon corporate sponsorship and licensing agreements in order to fund the creation of infrastructure for the games, and to fund the games themselves. For example, the LOCOG website reveals that “The [LOCOG] has a core budget of over £2 billion, with almost all revenue raised from the private sector” (www.london2012.com/about-us/funding). Given the tremendous cost of the games, and the meagre (in relative terms) contribution given by public funds, it is essential to offer superlative incentives to attract sufficient funding from corporate sponsors.

One of the common historical problems has been something called "ambush marketing". Ambush marketing usually takes the form of sustained or high-impact marketing drives/stunts by companies which are not official sponsors of the games. These either take advantage of the area in which the Olympics are staged in order to tap into an Olympic-sized audience, or seek to imply some connection with the Olympics where there has been no official authorisation to do so. The wide ranging powers in the 2006 Act are clearly intended to deal with this problem.

What is the impact of this protection?

In terms of the human impact of this protection, there are several examples already to surface. One example is the Great Exhibition 2012, which is an art event celebrating all aspects of British culture taking place this month. Back in 2011, when it applied for trademark protection of its name, it faced threats of legal action from LOCOG unless it withdrew the “2012” from its application (http://www.bbc.co.uk/news/uk-englandlondon-13761074).

In another example, activists who, via Twitter, used the Olympic logo and described themselves as “official Olympics protesters” had their Twitter account suspended after a complaint by LOCOG. There is something innately sinister about the use of such powers

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against critical commentators, especially where such an action would necessarily rely upon the special powers granted under the 2006 Act. A spokesman from the group described Olympic branding as “like Voldemort – you’re not allowed to mention it otherwise you’ll invoke the wrath of Locog” (http://www.guardian.co.uk/sport/2012/may/23/twitter-london-2012-olympic-logo).

The Olympics has traditionally been an aggressive litigator globally, with many examples of local businesses being targeted for being too enthusiastic in showing support for the event.

International and local Olympic committees apparently hold particular rancour towards butchers (e.g. here and here) and knitting (e.g. here and here).

The legislative measures we have discussed may therefore seem to have undesirable sideeffects when it comes to stories of local businesses making a genuine attempt to show patriotic support for the games. However, we must consider the alternative to the current state of affairs. It is not likely that the alternative to this model of sponsorship protection would simply be less money for the Olympics (although of course if there was no other way to secure the money, there would simply be more austere Olympic games). The author would speculate that on the contrary the result would most likely be a massive reduction of the prices of sponsorship to create a sponsorship “supermarket.” The impact of this on the viewer would of course be that instead of being reminded on the odd occasion that McDonalds is proud to support an athletic lifestyle, we would instead receive messages from 20 times more sponsors every 15 minutes ad nauseum…

SOLICITORS AND BARRISTERS.... A NEW CONTRACT? A quirk of the relationship between solicitors and barristers has long been the arrangement on payment of fees. ...so what happens when the contractual relationship with the client is entered into by the solicitor and the barrister is a third party who relies on that contract for payment, how can payment be enforced?.... In efficient law firms this creates no difficulty, but when barristers’ fees remain unpaid how can they be enforced, in the absence of a contractual relationship?

The time honoured method used has long been to make a complaint to a professional body (the joint Law Society/ Bar tribunal). Enforcement rights are now to be strengthened by the Bar Standard’s Board plan to introduce standard contractual terms, the New Contract Terms (NCT) which it would expect to form the basis of a contractual working relationship between solicitors and barristers.

One effect of the introduction of the new rules would be the removal of the so-called cab rank rule in cases where the NCT is not adopted by the solicitors/ barristers concerned (BLC alumni will recall that the cab rank rules requires junior barristers to accept new cases in a similar fashion to the rule requiring taxis to accept any customer if they are first in line at a taxi rank) What are the views of our alumni here?

Denise Ashmore, BLC Director

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Twitter, Tweets and Twits: beware the messages you send on social networking sites Steve Terrett BLC Deputy Director, Warsaw

When Paul Chambers’ plane flight from Robin Hood airport in Nottingham to Northern Ireland was cancelled in January 2010, he used the social networking site known as Twitter to text the following message to his 600 followers: "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"

Whilst hardly amounting to the work of a comic genius, this Twitter-twit’s tweet is also far from the normal style in which the IRA, Al Qaeda or other terrorist groups plan their terrorist activities. Years of experience have tended to indicate that pre-warning of bomb attacks tends to undermine their element of surprise.

Therefore, it came as rather a shock to Mr Chambers and his Twitter followers when he was arrested and charged with the crime of sending a malicious communication, contrary to s.127 (1) of the Communications Act 2003, which prohibits sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". This offence mirrors one contained in the Malicious Communications Act 1988 s.1 which covers the sending to another of any article which conveys a threat that is intended to cause distress or anxiety to the recipient. The latter offence covers letters, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. The offence was traditionally used to deal with so-called “poison-pen letters” but in the modern communications age the Communications Act 2003 was adopted to ensure that it also applies to electronic communications such as Twitter.

Mr Chambers stopped seeing the funny side of his actions when, as a result of his charge and subsequent conviction at the Doncaster magistrates’ court on 10 th May 2010, he lost 2 jobs and gained a criminal record and a fine of £1,000.

Thankfully for Mr Chambers, his appeal to the Court of Appeal overturned his conviction, finding that the Magistrates were not entitled to find that he intended the message to be menacing or to cause distress or anxiety to the recipients.

Mr Chambers’ appeal had been supported by a number of well-known English comedians, including Stephen Fry and Al Murray, who defended “the right to tell a bad joke”. When asked whether they would employ Mr Chambers as a writer of their own comic material, they replied briefly "No." The case has raised concerns as to the role of the Director of Public Prosecutions (Keir Starmer), who maintains supervisory functions over all prosecutions in England and appears to have intervened personally to ensure this prosecution continued whilst his staff was in favour of dropping the prosecution. It is likely that a Parliamentary inquiry will be created to investigate the events surrounding Mr Chambers’ prosecution.

Why not write and tell us how you think the law should deal with social networking sites and the legal problems that surround messages sent via them?

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Barristers are specialist legal advisors and courtroom advocates. They typically are self-employed, but organised into “chambers.” It is not usual for a client to consult a barrister directly, they usually work exclusively on the instructions of a solicitor, who will be instructed by the client. Barristers are generally regarded as the cream of the English legal profession, and positions are highly competed-for.

QUALIFYING LAW DEGREE This is a standard 3-year academic English law degree complying with standards set by the Law Society and the General Council of the Bar.

NON-LAW DEGREE If the candidate does not possess a qualifying law degree, it is necessary to first complete a GDL. This is a 1-year course which provides sufficient academic knowledge of the core fields of law.

BAR PROFESSIONAL TRAINING COURSE (BPTC) In order to embark upon barristerial training, a candidate must be accepted as a member of one of the four “inns of court.” In a 1-year course, training primarily focuses on practical skills including advocacy and court procedure. A part of this training is the “12 dinners” requirement.

Traditionally this meant that all trainee barristers had to attend dinners in their inn of court on at least 12 occasions. Now this requirement can be met in the alternative by attending additional training seminars. Upon completion of this course the candidate is “called to the bar.”

PUPILLAGE: “FIRST SIX” This is the first six months of the pupillage, where the pupil barrister will observe and assist a “pupil master/mistress.” Upon satisfactory completion of this period, the pupil is awarded a certificate entitling them to work unaided.

PUPILLAGE: “SECOND SIX” During the second six months of the pupillage, the pupil barrister may take on their own cases and clients, while still being able to rely upon the support and advice of their senior colleagues in chambers.

TENANCY Upon completion of the pupillage, the pupil must apply to chambers for membership of that chambers as a self-employed barrister. This is known as “tenancy.” Completion of a pupillage at a particular chambers does not guarantee that the pupil will be accepted into that chambers.

QUEEN’S COUNSEL A limited number of senior barristers receive “silk” as a mark of outstanding ability. This entails entitlement to use the honorific “QC” and wear a silk gown in court. Many senior judges today were formerly QC’s.

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Solicitors are the core of the legal profession in England and Wales. They provide legal advice and legal services to the public. A member of the public may consult a solicitor on any matter, from the sale of a house, to legal advice on drafting a contract, to seeking representation in court against another party. They are typically organised in firms which specialise in a few areas of law. There are several different routes available to qualify:

QUALIFYING LAW DEGREE ROUTE This is a standard 3-year academic English law degree complying with standards set by the Law Society and the General Council of the Bar.

NON-QUALIFYING DEGREE ROUTE This may be any bachelor’s degree, which could be in a topic completely unrelated to law.

NON-DEGREE BASED ROUTE

MEMBERSHIP IN THE INSTITUTE OF LEGAL EXECUTIVES (ILEX)

COMMON PROFESSIONAL EXAMINATION (CPE / GDL) This is a 1-year course which aims to provide sufficient academic knowledge of the core fields of law to enable students to go forward to the LPC.

Members of ILEX (known as “legal executives”) are most ofLEGAL PRACTICE COURSE ten employed in law firms and/ (LPC) or undertaking legal work.

This is a 1-year qualification They must complete various which focuses on the practical courses whilst working to enelements of legal practice, for able them to retain and develop example procedural matters, their ILEX status. Those that skills and solicitors’ duties. wish to progress to become solicitors must pass higher-level LEGAL PRACTICE COURSE ILEX courses to be eligible for TRAINING CONTRACT AND this route.

PROFESSIONAL SKILLS COURSE TRAINING CONTRACT AND The final stage of training is to undertake a position in a law firm known as a “training contract.” This is a two-year period of work as a “trainee solicitor.”

During this period, the trainee solicitor must periodically attend modules for the professional skills course.

SOLICITOR Following successful completion of the training contract, the candidate is entered onto the roll of solicitors.

PROFESSIONAL SKILLS COURSE

COMMON PROFESSIONAL EXAMINATION

SOLICITOR

LEGAL PRACTICE COURSE

PROFESSIONAL SKILLS COURSE

SOLICITOR A solicitor’s full title is “Solicitor of the Senior Courts of England and Wales.” It is also possible for solicitors to take a further qualification to become “Solicitor Advocates.” This allows them to appear as advocates before the higher courts.

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Ius commune europaeum Dr Monika Adamczak-Retecka BLC Alumna and Local Programme Director, Gdansk ‘We are right to continue to worry away at the unnecessary divergences which continue to divide us. But the things which unite us, are greater than the things which divide us. The dawning of the new millennium should, no doubt, act as a spur to further endeavour; but it is also an opportunity to reflect on the extraordinary progress already made during what, historically speaking, is like an evening gone.’ MÅRTEN SCHULTZ

EU Perspectives

INTRODUCTION We witness today, within the context of an increasingly integrated EU, the making of a new common legal order which is that of the Treaties, the judgements of the Court of Justice and the constitutional traditions of the Member States. Due to the limited competences attributed by the Treaties to the Union’s legislature, it is obviously not possible to achieve that goal only by the means of the EU secondary legislation.

Especially in the field of private law, whereas legal instruments lead to harmonization of the national rules, that harmonization will only occur in limited sectors and, therefore, cause new disparities to arise (the dark side of harmonisation). In consequence, in order to bring about overall convergence in the areas of for instance contract and tort law, it will be indispensable to uncover commonalities in concepts, principles and solutions between the domestic legal systems of the Member States. Only then will it be possible to build the emerging ius commune on common ground, and not to be perceived as something unwanted in the participating States. Therefore to find this common ground comparative law research is needed.

EUROPEAN CIVIL CODE

OBITER

DICTA

There is a lively debate among academics in EU about how, if at all, the private laws of the Member States should be harmonized. Views

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range from no harmonization at all, soft law methods, step by step case law developments, to a fully fledged binding European Civil Code. Many arguments have been raised both supporting and rejecting the idea of a European civil code. The main problems noticed are: 

existing differences between the common law and the civil law systems (judiciary v. legislator)



different legal cultures: the German fondness of legal order and norms; the French – of grand principles and English of tradition.



diverging concepts of justice (corrective justice or victim protection)



systematical (institutions) v. functional approach (scholars)



“hidden” codification by ECJ



lack of legitimacy (subsidiarity principle)



language and technical barriers.

FOR Arguments supporting a unified European civil code relate to the role of the European Union in an increasingly global economic system. The creation of a European civil code can be seen as a further step in this process of integration. A uniform civil code could reduce existing barriers and increase trade within the European Union. (However, there is no empirical evidence that the lack of a uniform civil code across the European Union represents a barrier to trade. Within the United States there is no uniform civil law across the fifty states, and this has never been thought to represent an economic barrier to the proper functioning of the American economy.)

The benefits of the code would lie in establishing foundations for a denser network of transnational relations of civil society, which in turn would help to overcome the present popular resistance to European political institutions.

AGAINST The feasibility of a European civil code has been questioned on both political and legal grounds. Cultural differences and the lack of a common European legal culture are often cited.

The connection between law, language, culture and national history forms one small aspect of the arguments against replacing national civil codes with a European code.

1. First that the process by which Community instruments are now produced might lead to second rate law. For example, within private international law, the Rome II Regulation is said to be an unhappy political compromise between Parliament, Council and Commission.

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2. Second, once a Civil Code is in place any errors it contains will take years, if not decades, to correct as agreement from all participating parties will be required.

3. Third any Civil Code will be a piecemeal replacement of part of each member state's legal system. Laws within nations form a system: one part is shaped by and dependent upon another. The law of property, for example, is dependent upon the scope and shape of each state's law of tort or delict, and vice versa. Replacing part of each system's law, without altering the rest, will introduce incoherence.

4. Fourth if the European Court of Justice is given jurisdiction over the interpretation of any code, even more disputes will be subject to the gross delays which appeals to that court are already subject.

5. Fifth the draft principles in existence are not, substantively, satisfactory. For example, the draft Principles of Liability for Non-Contractual Damage defines "causation" in a way which is transparently circular: "A person causes legally relevant damage to another if the damage is to be regarded as a consequence of that person’s conduct or the source of danger for which that person is responsible."

6. Sixth it is impossible within a few brief code provisions to capture the many technical and minor points which are thrown up in private law disputes. Within member states these have long been settled, although not uniformly. A new Code will lead to immense litigation and disruption as these points are re-litigated anew.

7. Whether the European Union has the legal power to create a European civil code has also been an issue. Article 95 of the EC Treaty is considered the means through which a code would be created. However, many people believe the EU lacks the constitutional competence to enact a comprehensive code.

CONTRACT LAW As previously stated, the discussion on a European civil code began with the idea of harmonization of contracts. Development of a European contract law began in 1982 with the formation of the Commission on European Contract Law, known as the Lando Commission after its Chairman Ole Lando. The Lando Commission focused on creating their Principles of European Contract Law (PECL), the first part of the which was published in 1995, followed by Part II in 1995 and the final Part III in 2003. It’s work has been continued by the Study Group, chaired by Christian von Bar. The divergences between national contract laws were identified both by the European Commission and the Parliament as a major barrier to the completion of the internal market. Among other solutions, the Commission has suggested an “optional instrument” for European contract law. In 2009, a Study Group published a Draft Common Frame of Reference (DCFR) with model rules. The Commission is currently considering whether those parts of the DCFR which

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relate to contract law should be turned into a Common Frame of Reference (CFR) which could be used as an optional instrument and the choice of which might even have to be recognized by state courts. These sets of rules were drafted particularly with cross-border contracts in mind. Here, the parties often find it difficult to agree on a contract law to govern their transaction because most parties prefer the law of their home jurisdiction. As a consequence, they frequently choose a third, neutral contract law. In theory, optional contract regimes (e.g. the existing UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law) offer such an attractive neutral law.

TORT LAW The ideas on the harmonization of European Tort Law also vary drastically. On the one hand there is a vision of a codification of European Tort Law as part of a European civil code. But on the other side is the idea that harmonization should – and can be, done only to the extent necessary for a functioning of the internal market. Specifically in the area of tort law, a number of rules can be found in tort law directives. Examples of directives include the Product Liability Directive and the Directive on Unfair Commercial Practices.

Liability can also be based on the violation of community provisions. Article 340 of the TFUE explicitly regulates the liability of Community Institutions for damage caused by the breach of Union Law. Also, the Court of Justice case law has a more substantial impact in the area of extra-contractual liability than in the area of contracts. Tort liability is considered by the Court as the crucial remedy for individuals to enforce their rights both before the EU and the national courts. For the first time the ECJ enabled a direct claim to be made against a defaulting Member State in the famous Francovich case. In this 1991 judgement, the ECJ acknowledged liability of the Member States towards individuals for violation of Union law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law. Referring to the liability of the community institutions, the ECJ developed three requirements for state liability: the rule of law infringed must be intended to confer rights on individuals, the breach must be sufficiently serious and there must be a direct causal link between the breach of the obligation resting on the State and the damage suffered by the injured parties. The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Union Law. Later on, the Courage case established the individual tort liability for infringements of EU law.

Finally, the work of private group of scholars, known as The European Group on Tort Law established in 1992, should be mentioned. The Group has drafted a collection of Principles of European Tort Law similar to the Principles of European Contract Law. There are two observations which may further question the desirability and feasibility of the harmonization of tort law. Firstly, the harmonization of tort law is hard to achieve without taking into account other compensation systems, such as private insurance and social security sys-

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tems. These systems are strongly interconnected and it is undesirable to harmonize one without the others. Secondly, harmonization of tort law would also need harmonization of administrative and criminal law. Most legal systems acknowledge the possibility to be liable for damage caused by the violation of a statutory duty. Hence, if there were to be harmonization of the rules for breach of statutory duty, one should also harmonize the statutory rules that can be invoked as a basis for this tort.

OTHER GROUPS In the past 20 years we have seen the development of many academic groups focusing on different areas of private law. These include: - The Acquis Group created to focus on existing European Community private law.

- Commission on European Family Law based at the University of Utrecht.

- European Group on Tort Law in association with the European Centre of Tort and Insurance Law in Vienna - Study Group on a European Civil Code formed in 1997 and chaired by Professor Christian von Bar at the University of Osnabrück - The Common Core of European Private Law project conducted by Mauro Bussani and Ugo Mattei at the University of Trento Moreover, The Joint Network on European Private Law has also been created and it includes several of the above groups.

POLAND The Polish tort law system is based on the following three principles: fault, risk and equity. Following the French example, fault is captured in a synthetic manner, combining objective and subjective elements (article 415 of the Civil Code). Due to technical progress and developments in the organisation of social relationships, people are exposed to growing hazards to their lives, health and property. In the field of civil law, a reaction to these phenomena emerged in the form of establishing more rigorous regimes of liability based on the principle of risk. In particular, this tendency is reflected in the provisions of articles 435 and 436 stipulating the liability of a person conducting an enterprise set in motion by the elements of nature and of the possessor of a mechanical vehicle. The regulation of article 435 of the Civil Code, with an appropriately flexible interpretation of this provision, allows it to cover damage inflicted on the environment – at the sufferer’s demand. Certain supplementations to this provision can possibly

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be considered, consisting in a stronger indication of liability for damage caused by the emission, use or storage of hazardous substances.

CONCLUSION Initiatives for common European principles of law are multiplying. The Action Plan of the European Commission for “A more coherent European contract law� (COM(2003)68 final) supported the possibility of an optional instrument in the area of European contract law whilst encouraging an open, wide-ranging and detailed debate. Such developments are likely to change our perception of law and its role in society and our forms of reasoning. National stereotypes must be overcome and the rigid divide between common and civil law seen as a thing of the past. What is certain is that, an agenda for further debate must be pursued. Perhaps the focus should not be on Europe united with pan-European rules, but rather on a Europe united in diversity with harmonized rules where needed and diversity where possible.

(C. van Dam)

A VERY EUROPEAN PROBLEM... THE DIFFICULTY OF DIVIDING 12 BY 27!

It is a universally acknowledged truth that important EU decisions must always be capable of surmounting political hurdles... or put another way, any EU tart must be divided into equal Member State portions. So, knowing this truth, why, when agreeing that the overworked EU General Court needed more judiciary, was it decided to appoint an additional 12 rather than 27 judges (i.e. one per Member State).

So we have another political hurdle to surmount, as all Member State governments agree that more judges are needed... but oh or course...on the assumption that appointments include one from their Member State!!!!

So are we to see national priorities again set against the need for a pan-European perspective?

Will the resolution mirror the political compromise that led to the newly founded Unified Patent Court (a misnomer perhaps..) being built in three locations when faced with the unwillingness of Germany, France and the UK to relinquish their claim to host an institution, combined with the exclusion of concurrent/appellate jurisdiction for the Court of Justice to the European Union....?

Denise Ashmore, BLC Director

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Right to information in criminal proceedings – the Letter of Rights Paulina Kasparek BLC Alumna

The European Parliament and the Council of the European Union have adopted Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings (hereinafter referred to as ‘the Directive’) which lays down rules for suspects and accused persons, regarding their right to information in criminal proceedings and to the accusations against them. It also lays down rules concerning the right to information of persons subject to the European Arrest Warrant relating to their rights.

The Directive was proposed by the European Commission in July 2011, was voted in by the European parliament in December 2011 (IP/11/1534) and agreed by national justice ministers on the 27 April 2012 (IP/12/430). It was published in the Official Journal of the European Union in the 1st June 2012 (OJ L 142/5). Now Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 June 2014 (under the two years rule).

The Directive introduces the Letter of Rights – a document which should be presented to anyone regardless their legal status, citizenship or nationality and is arrested or detained anywhere in the European Union. It contains the core basic rights such as the rights to remain silent, to access a lawyer, free legal advice, interpretation and translation, access to case documents, urgent medical assistance or to inform someone else about their circumstances.

The suspects or accused shall be given an opportunity to read the Letter of Rights available in the language they could understand and shall be allowed to keep it throughout the time they deprived of liberty.

Although most rights listed in the Directive are rooted in the European Convention Human Rights (ECHR) jurisprudence, the Letter of Rights brings them all together in a simple form and accessible language. An indicative model Letter of Rights is set out in Annex I of the Directive. Member States are not bound to use the model provided and may amend it in order to align it with their national rules and add further information.

According to last available information 12 of 27 Member States have introduced Letter of Rights and inform suspects either in writing or orally about their rights.

Even though all Member States are a party to the ECHR some of the fundamental rights such

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as right to remain silent and to have access to the case files which are fundamental requirements of a fair trail in the ECHR, are not provided in the legislation of all Member States. Also the criminal procedures in regards to informing the suspect about his rights vary across Member States. Research has shown that the right to remain silent is not a statutory right in Luxembourg and in Belgium there is no legal obligation to caution the suspect on the right to silence. Further 9 Member States have no legal obligation to inform the suspect on his right to interpretation.

It is crucial for suspects who do not speak the language in the jurisdiction seized to receive a Letter of Rights and information about the accusation in a language they can understand. The underlying principles of art. 6§3a and art. 5§2 ECHR impose an obligation on the judicial authorities to inform a suspect of the nature and the cause of accusation and enable the suspect to understand the charges or to challenge the lawfulness of his detention. Furthermore in EU case law it was recognized that defendant who does not speak or understand the language of the proceedings is clearly at disadvantage. The Polish Letter of Rights states that ‘the suspect is entitled to use the service of an interpreter free of charge if his command of the Polish language is insufficient’. Nevertheless in Czech Republic, Italy and Poland the Letters of Rights are available only in the language of the Member State thus ad hoc interpretations by the interpreters involved are provided. On the contrary the Letter of Rights of England and Wales is available in 54 languages.

After the measures of the Directive will be adopted police and prosecutors in all Member States shall provide suspects with information about their rights in the written form of a Letter of Rights. It shall be provided to suspects upon arrest in all cases. The Commission proposed a model available in 22 EU languages. This will provide consistency in procedures and enhance the protection of rights of people travelling across EU as well as decrease the costs of translation.

"We now have in place another central pillar of a truly European area of Justice. The new law on the right to information will help to guarantee fair trials for everyone in the EU. It will ensure that anyone accused or suspected of a criminal offence is clearly and promptly informed of their rights," said Vice-President Viviane Reding, the EU's Justice Commissioner. "It will be especially useful for the millions of holiday makers and others who travel around the EU and who may find themselves involved in criminal proceedings: they will now have the explicit right to be informed of their rights in a language they understand. This will help safeguard against miscarriages of justice. I am now counting on Member States to transpose this EU-law swiftly into their national systems – and not wait until the last minute before the deadline – so that it becomes a tangible reality for our 500 million citizens".

A one year after the deadline of enforcing the directive’s provisions by Member States the Commission will submit a report to the European Parliament and to the Council assessing the extension of undertaken measures by Member States and if necessary with legislative proposals.

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INDICATIVE MODEL LETTER OF RIGHTS You have the following rights: A. ASSISTANCE OF A LAWYER / ENTITLEMENT TO LEGAL AID You have the right to speak confidentially to a lawyer. A lawyer is independent from the police.

Ask the police if you need help to get in contact with a lawyer, the police shall help you. In certain cases the assistance may be free of charge. Ask the police for more information.

B. INFORMATION ABOUT THE ACCUSATION You have the right to know why you have been arrested/detained and what you are suspected of having done.

C. INTERPRETATION AND TRANSLATION If you do not speak or understand the language, you have the right to be assisted by an interpreter. This is free of charge. The interpreter may help you to talk to your lawyer and is required to keep the content of this communication confidential. You have the right to translation of at least the relevant passages of essential documents, including any order by a judge allowing your arrest or keeping you in custody, any charge or indictment and any judgment. You may in some circumstances be provided with an oral translation or summary.

D. RIGHT TO REMAIN SILENT While questioned by the Police or judicial authorities, you are not obliged to answer questions about the alleged offence.

Your lawyer can help you to decide on that.

E. ACCESS TO DOCUMENTS When you are arrested, you (or your lawyer) have the right to access essential documents you need to challenge the arrest or detention. If your case goes to court you (or your lawyer) will have the right to access material evidence for or against you.

F. INFORMING SOMEONE ELSE ABOUT YOUR DETENTION / INFORMING YOUR CONSULATE OR EMBASSY When you are arrested, tell the police if you want someone to be informed of the detention, for example a family member or your employer. In certain cases the right to inform other persons of your detention may be temporary limited. The police will be able to tell you.

If you are a foreigner, tell the police if you want your consular authority or embassy to be informed of the detention. Also tell the police if you want to contact an official of your consular

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authority or embassy.

G. URGENT MEDICAL ASSISTANCE When you are arrested, you have the right to urgent medical assistance. Tell the police if you are in need of urgent medical care.

H. PERIOD OF DEPRIVATION OF LIBERTY After your arrest you may be deprived of your liberty/detained for a maximum period of …. [fill in applicable number of hours/days]. At the end of this period you must either be released or be heard by a judge who will decide on your further detention. Ask your lawyer or the judge for information about possibilities to challenge the arrest, to review the detention or to ask for provisional release.

When the House of Lords constitution committee reported in March 2012 that the judiciary needed to be more diverse, there was no great surprise to hear that proved statistics supported the apparent public perception (per Baroness Jay chairing the committee) that "the judge inhabiting a courtroom in England and Wales is stereotypically a white male from a narrow social background" . A perception, she added, that needed to be corrected, a view apparently endorsed by the current UK government which has included provisions facilitating targeted judicial recruitment in its 2012 Crime and Courts bill.

Maybe one way of changing public perception might have been the appointment of Lady Hale rather than Lord Neuberger to the vacancy of President of the UK Supreme Court. Instead Lord Neuberger will move from his current position as Master of the Rolls (BLC students will recall that the MR is the most senior judge in the Civil Division of the English Court of Appeal) which might cause some surprise as he is renowned for his vocal criticism of the decision process leading to the replacement of the House of Lords judicial committee by a new Supreme Court in 2009 ( “a last-minute decision over a glass of whisky" and “ the introduction of a constitutional court by a back door” ). However Lord Neuberger as “the ideal type of modern, unstuffy, user-friendly judge ...whose appointment as president will attract widespread approval from across the legal profession." ( per Hugh Tomlinson QC) Whilst falling squarely within the problematic public perception of judiciary, it is perhaps a salutary reminder that appointments to the judiciary, even with positive discrimination, must always be awarded to the most qualified and meritorious applicants!

Denise Ashmore, BLC Director

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European Union patent: boost or threat to innovation?

Tomasz Grzegorczyk, Adam Mickiewicz University in Poznan, 1st year BLC student

European patent Currently if a company wants its invention to be protected in many EU countries, it may file a motion to the European Patent Office seated in Munich and obtain a European patent in accordance with European Patent Convention. Actually, it is a bundle of national patents enforceable in the chosen states, each of which however need to be endorsed by courts or offices in individual states and are subject to national law. High costs connected with many registration procedures (translation or attorney’s fees) and inconsistent rules among the states are the most often mentioned weaknesses of this system.

Unitary patent For over 35 years there have been attempts to introduce a unitary, centrally enforceable European Union patent which would comply better with the principles of the Internal Market. After years of failures, lately the pace of progress has significantly increased: firstly, by the introduction of the enhanced cooperation procedure in 2010, though without the participation of Italy and Spain. Secondly, during the Polish Presidency, during which there was, however, eventually failure to reach agreement. Nevertheless, the negotiations are still ongoing and the last important issue to agree on is the location of the seat of the central division of the EU Patent Court (Paris, London and Munich are each being considered).

Unlike the European patent, the EU patent will become a consistent right across 25 EU member states without further validation in member states being required. Furthermore, it will be based on a trilingual (English, German and French) system, as it is in these languages that the patent will be granted and the proceedings take place.

Benefits Firstly, the cost of obtaining a patent will decrease significantly. Currently the costs of a European patent giving protection in every EU state can exceed 30 000 euro, which

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compared with average cost in the US of 1850 euro amounts to significant barrier to innovation. According to the European Commission a unitary patent will cost on average only 680 euro. This will happen mainly through reduction of translation costs and the number of necessary procedures. The procedure will also, it is said, be much quicker. What is more, thanks to easily accessible information about existing patents, inventors will be properly informed about possible patent infringement. Needless to say, the cheaper and easier it is to protect inventions, the more innovation-inclined our economy will be.

If it looks so rosy, why is it criticized?

Lately in Poland many groups have pointed to the possible negative effects of introduction of the proposed unitary patent. An open letter to the government against the EU patent has been formulated

by Polish law professors dealing with intellectual property. Opposition was also manifested from the Polish Chamber of Patent Attorneys, the Business Centre Club and some members of the Polish Patent Office. Additionally, the British House of Commons expressed its concern, especially when it comes to the fast pace of work during the Polish Presidency and the possible negative effect on small and medium firms (see: House of Commons, European Scrutiny Committee, European Patent Court: help or hindrance?).

If it is going to be easier and cheaper, what seems to be the problem then? Well, it is going to be so, but mainly for big British, French and German firms and international corporations from the US or Asia. Why is that so? Let’s take a small or medium Polish company, the type of business which constitutes the strength of Poland’s economy, as an example.

Actually, the language and high costs would become an even greater barrier than before. If a Polish entrepreneur wanted to sell his product only in Poland, he would still have to check if he does not infringe any of thousands of patents valid in 25 EU members. In the current system only the entrepreneur who obtains the patent bears the costs of translation into national languages – in the new system it would be everyone else besides him. It is beneficial for countries where companies register many patents (like Germany which registered 13,583 of them in 2011) and detrimental for those with small numbers of patented inventions, which are just beginning to discover their potential (such as Poland which registered only 45 in 2011). Furthermore, the Polish entrepreneur would have to check the existence of patents in English, German and French and pay the price of translation. It clearly favours firms from those three language areas. Although there are efforts to mitigate this impediment, they are said to be mainly illusive. Moreover, the number of patents valid in Poland would drastically increase, from current 35,617 to hundreds of thousands. It is our medium entrepreneur, who will bear

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the gigantic costs connected therewith (not to mention the fact that our economy’s competitiveness would decrease because of so many protected rights suddenly coming into existence in Poland). Would such an entrepreneur be able to cope with all this? Probably not. So what if he infringes a patent and gets sued? There may be a Polish division of the EU Patent Court, but some cases would belong to the central division in one of the three mentioned countries, depending on the final agreement. Therefore he would be forced to litigate in a foreign country, in a foreign language and hire foreign lawyers and patent attorney – it is neither cheap nor convenient. Some authorities like professor Sołtysiński claim that this may be in contravention of the Polish Constitution and the right to defence. Other impediments to innovation are strict injunction rules, which if unreasonably used can freeze an invention for years.

Additionally, Polish and other East and Central European companies usually patent their inventions in two or three foreign countries for a much smaller cost than that being suggested for the unitary EU patent. On the other hand, multinational corporations tend to obtain European patents in more than ten EU countries and together with British, German and French companies they would be the only beneficiaries of this new system. It would be therefore an incentive for such entities to create inventions and a big obstacle for others. And when it comes to the EU as whole? It is difficult to say, but doesn’t its strength lie in the strength of its members?

The future will show – soon?

As it is often underlined, the idea of unitary patent is a good one, but not in this version. However, there is no place for any big changes, as supposedly by the end of June the negotiations will be closed and the last big decision concerning the location of the central division will be taken. The only possibility not to agree would be to resign from the whole project (like Italy and Spain), which is rather unlikely – especially for Poland, which tended to boast about progress of this initiative under its presidency. As it usually works for such complex matters, the actual consequences of introduction of the EU unitary patent will be visible after putting it into practice. For all we know now, it seems that European inventors should have their fingers crossed. Some will be hoping that the unitary patent will have more luck than in the past and some will not.

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Protection of the consumer in the matter of unfair terms of contract Michał Roszczynialski Trainee Barrister, Gdansk Centre Alumnus class of 2008

Each of us is the consumer. Everyday we take part in global exchange of goods and services.

We buy food, clothes as well as raise loans or enter into insurance. As long as we perform all these actions as a non-professional participant of a trade, we are “fighting a losing battle”.

Why? We have to enter into one-sided standard contracts in the form of for example general terms and conditions of an agreement, standard contracts or regulations. At the stage of concluding such contracts we (as the consumers) have no power to influence second party (professional) to change term according to our remarks. Who of us had the opportunity to negotiate contractual terms of insurance contract or bank loan agreement individually? A rhetorical question.

Of course contractual terms in the “mass contracts” made by companies must not be unfair.

But when undertaking which is intellectually (legal, trade knowledge) and economically strengthen than consumer, it tends to form contractual terms to its own benefit. Then the risk that such contractual terms are unfair is very high.

Taking into consideration difference in strength of the bargaining positions of the parties, mentioned above, EU decided to take measures to provide consumers more effective protection.

Council adopted on 5 April 1993 Directive 93/13/EEC on unfair terms in consumer contracts (hereinafter referred to as “the Directive”). The “unfair terms” are defined in Article 3 of Directive. According to that article contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. What is very important, a term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

To make the assessment of particular contractual terms, easier, the Directive contains the Annex with list of the terms which may be regarded as unfair. Of course that list of 17 terms is “indicative and non-exhaustive”. For example Poland implemented all of this terms into the civil code (Art. 3853).

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The Directive introduces interesting sanction, when the term is considered unfair. Such term is not null, but is not binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.

It is worth remembering that the Directive defines the „consumer”. According to the Art. 2 (b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession. It means that no legal person can benefit from this act. It was confirmed by the European Court of Justice (hereinafter referred to as “ECJ”) on 22 November 2001 in joined cases C-541/99 and C-542/99, Cape Snc v Idealservice Srl, Idealservice MN RE Sas v OMAI Srl (European Court reports 2001 Page I-09049).

As it was mentioned above, “unfairness” of the term is assessed in the light of “good faith” or “significant imbalance in the parties’ rights”. That means that the role of courts, which analyse contractual terms in individual cases, is very important. But again, consumer position in such cases may be weaker in comparison to the company. The consumer may not even know that law provides instruments which can block operating of the unfair terms. Eurpoean jurisdiction determined the direction in this area. ECJ on 9 November 2010 in case C-137/08, VB Pénzügyi Lízing Zrt. v Ferenc Schneider stated that: “The national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair.” . This principle was even more stressed in another ruling of ECJ, which basing on fundamental EU rule of effet utile, stated that: “The court seised of the action is therefore required to ensure the effectiveness of the protection intended to be given by the provisions of the Directive. Consequently, the role thus attributed to the national court by Community law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task.” (ruling on 2 June 2008, in case C-243/08, Pannon GSM Zrt. v , Erzsébet Sustikné Győrfi).

Therefore courts have to be active in cases concerning contracts with consumers. But is that mean that courts can modify unfair terms and for example replace them with new provisions?

ECJ examined such problem. Case concerned the bank loan agreement between consumer and bank in Spain. The bank demanded payment including interest but the court in Barcelona during proceedings not only considered terms of interest unfair but also reduced the interest rate of loan. The court did so, because Article 83 of Royal Legislative Decree 1/2007 approving the consolidated version of the General Law for the protection of consumers and users and

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other supplementary laws, allowed for that modification. ECJ stated that Article 6 (1) of the Directive precludes such legislation of Member State “which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term.”. (ruling on 29 November 2010, case C-618/10, Banco Español de Crédito SA v Joaquín Calderón Camino).

Examples shown above concerned individual cases. But it is much-desired to provide by Member State wider protection for all consumers who concluded contracts with seller or supplier (not only at the stage of the civil suit). ECJ expressed this expectation on 29 September 2010 in case C-472/10, Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt: “where the unfair nature of a term in the general business conditions has been acknowledged in such proceedings, national courts are required, of their own motion, and also with regard to the future, to draw all the consequences which are provided by national law in order to ensure that consumers who have concluded a contract with the seller or supplier to which those general business conditions apply will not be bound by that term.”. For instance in Poland there are two models of controlling unfair terms in consumer contracts by the courts. First took place in each individual civil case with consumer. Second type of control is carried out in special procedure before the Court of Competition and Consumer Protection (Regional Court in Warsaw) which decides if a given provision is forbidden. This is an abstract control. An action for such a judgement first of all may be brought to court by anyone who has been or may be offered a contract containing such a clause. The clauses which have been found abusive by a final decision of the Court are entered into the Register of Prohibited Clauses and as of this moment cannot be used in relations with consumers by anyone. The President of the Office of Competition and Consumer Protection maintains this Register.

Thoughts on the English Legal System If you find it strange, you’re not alone!

Seán Jones QC: "Barristers need a degree of self confidence that borders on the clinically suspect. They have to be confident enough to look at the merits of a case and say 'very probably' rather than 'maybe' and then set off to court, let the buck settle in front of them and make their predictions come true."

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Intellectual Property Law: Student Thesis In 2011 a new feature was introduced into the BLC diploma course allowing second year students to compete to be selected to write a 4,000 word thesis in place of a written exam, on a pre-selected subject field. The following is an extract from one student's thesis

Copyright law has undergone significant expansion in order to tackle some of the problems posed by the ease of infringement on the Internet. There must, however, be fundamental changes to the way we think about and enforce artists and author’s rights if copyright is to make sense and be effective in the developing digital environment.

Krzysztof Muciak

International Perspectives

2nd year student, Warsaw Centre

INTRODUCTION Copyright law is a peculiar branch of legal regulation. In its very essence there is a factor of technological development, which was in fact the cause for which the need of copyright protection emerged. It was the invention of Gutenberg’s letterpress that enabled original works to be copied almost effortlessly, comparing to the necessity of timeconsuming, manual labour that preceded it. Much later, modern technological means gave green light for audio and video recording, expanding tremendously the scope of possibilities of authors’ right to be infringed. All of this, however, seems like a case of hypochondria in comparison with the infringing potential of the Internet.

Along with globalisation and general progress in the field of communication technology, having at this point a truly and irreversibly international character, legislation faces new threats to the ownership rights, including copyright. More often than not the classic means of protection, applicable to the ordinary, real-life cases of infringement (so called ‘analog copyright rules’), are insufficient or simply inadequate to achieve their goals in the virtual environment. This is the reason why the legislature, acting side by side with various organisations gathering authors and creators, constantly seeks for new, appropriate measures of copyright protection. A vital role in the UK, obviously, is played in this process by the judiciary. It is to be seen later in what way judges commit to the increase of safety of the intellectual property rights on the Internet.

DIGITISATION In order to completely understand the matter of copyright protection on the Web, along with the particular measures of enforcing these rights,

OBITER

DICTA

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as proposed by the British and European legislation, one must clearly understand how exactly the Internet works, in the scope of interest of the digital copyright.

First, however, it has to be stressed out that the sole existence of digital technology forms a platform for copyright infringement. What makes infringing copyright by using digital tools such a threat, are four major elements: 1.Ease of replication – every file already existing in a digitised form can be copied multiple times without loss of quality, and many forms of creative works (e.i. sound, image, video, not to mention text) can be effortlessly digitised by any private individual in their own household, using a commonly accessible hardware.

2.Ease of transmission and multiple use – given that great amount of computers is networked, a transfer of illegally copied files is a matter of seconds. It is important to point out that the ongoing development of broadband connections and mobile network access facilitate the distribution of pirated files.

Ease of modification – digital files are susceptible to changes. One can easily modify content, cut or paste parts of a work, adapt it for their own needs (e.g. cut an extract from a song to use it as a mobile ringtone), compress, convert or use it as a part of their own work. Such possibilities were greatly enhanced with the launch of Web 2.0.

Compactness of work in digital form – a single CD or a memory card can store thousands of files.

Compilation of these elements leads to a conclusion that although various fast-developing digital technologies could significantly reduce production and transaction costs and play an increasingly significant role in overall economic performance, it also makes illegal access to digital content much easier than before, which has allowed copyright infringement to become more rampant.

The Internet Whilst browsing the Web, any user undertakes a series of actions which, in the traditional meaning of copyright, infringe rights of an author. Let’s illustrate it with an example. S. 16 of the Copyright, Designs and Patents Act 1966 reserves for the copyright owner an exclusive right to copy the protected work (copying defined in s.17 CDPA). A person entering a website may not be aware that its content includes copyright protected works. It is enough for such an individual, however, to wait idly until the page loads to commit an infringement. Their browser, loading the webpage, creates a copy of it in their computer RAM memory. Another copy, at the same time, appears on the computer screen, as an image visible to the user. When they leave the page and the content disappears from the RAM memory, it still remains stored in at least two places; one of them being the browser’s cache and the other – a server, usually belonging to the user’s ISP, used as well for caching recently visited websites in order to improve their consequent loading. In this short lapse, an author’s right was potentially infringed at least four times. None of the infringements, what should be stressed, was committed voluntarily, or even

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consciously.

However, this purely technological type of challenge to copyright is not the sole problem the legislator has to deal with in relation to the world wide web. Since the potential for breaking the law is at such high level and in fact the financial consequences of online copyright infringements are so significant, legal regulation has had to resign from the attempts to pursue the direct (or primary) infringers and concentrate on various service providers and intermediaries, which seems more economical, efficient and just. These actions aim at providing sufficient and effective protection of copyright, already considered by some circles to be obsolete.

COPYRIGHT: REDEFINED What should be considered in an analysis of copyright enforcement in a digitised environment is the point on which the legislation tends to focus. The emphasis has moved from the absolute protection towards these areas where, primarily, an infringement could cause the most significant financial damage to an author and, secondly, where enforcement is as efficient as possible. The digital threats to copyright are numerous and all deserve a thorough analysis. I would like to focus, however, only on a few of them. copyright enforcement on the web: practical problems The internet provides an excellent space for sharing digital works among users from around the world. It is most often seen as a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of various networking technologies. This commonly acknowledged definition, however, does not mention clearly a few elements crucial from the point of view of legal regulation.

One difficult issue, for instance, is the extraterritorial character of the internet. It has been argued that cyberspace in fact does not have a ‘real’ location, since there is no central server on which the internet is hosted, but that it can be everywhere and nowhere . Modern legislation needs to somehow address the fact that many of the actions and effects within the national territory will not actually have physically taken place there. The most important questions that have arisen through last decades are those concerning the connecting factors used to attribute certain acts and effects to a certain jurisdiction and the mechanisms used to afford judiciaries and other national authorities jurisdiction over matters theoretically located in cyberspace. Various actions of an international scale have been undertaken in order to provide protection even in such situations, however none of the documents signed by the governments of various countries can be applied universally.

Secondly, between the users and the content published online there are numerous intermediar-

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ies, including Internet Service Providers (ISPs) and telecommunications operators (providing the ‘backbone’ or ‘pipe’ for the transmission) taking part in the process of acquiring/sending information. One of the greatest challenges faced by the copyright law-makers is to determine what role is played by these intermediaries and how their position should be regulated.

Another area of uncertainty is the aforementioned reproduction taking place as a part of a technological process. It includes such processes as transmitting or caching, the latter frequently posing significant legal problems.

CONCLUSION The problems analysed in this thesis show to some extent how many challenges appear in the field of copyright enforcement in the digital environment. The legislation aiming to tackle these difficulties has to turn its focus to other matters than the priorities of the ‘analog’ protection. As it has been seen in relation to the copying emerging in a process of using the internet, the traditional meaning of the protective provision ceases to fulfil its role. Again, a redefinition is becoming more and more necessary as far as the thinking about copyright in an international scope is concerned. The general idea of pursuing the direct infringers of copyright is also becoming more and more obsolete, since the extent to which copyright is susceptible to infringement on the internet is simply too vast to be effectively and cost-efficiently exercised.

One cannot ignore that it is the European legislation that proposes various means of addressing the new technological constructs. A vital role in the process of enforcing copyright is also played by organisations of artists and creators who refuse to stand idly and make use of the legal framework provided for the copyright protection. On the other hand, however, any attempt to assign liability to the Internet Service Providers echoes with protests emerging from the perspective of human rights protection, dissemination of information and freedom of access to such.

Some people argue, that the new means of protection of copyright will not suffice and that eventually it will be replaced by technological means of protection, limiting the distribution of copyright materials significantly. Others predict the death of copyright via replacement by binding contractual licences with rights owners, permitting to access and use digital content and leading to the privatisation of digital information.

On the other hand actions undertaken in such laws as the Digital Copyright Directive and Electronic Commerce Directive, as well as the Draft International Copyright Code indicate that the idea of copyright protection is not dead, conversely, it is flexible, susceptible to technological changes and struggling to give as much protection as possible in the difficult times for owners’ rights.

It is unclear where the copyright will end up. It will all depend on how the courts and legislation balance different values and which of them gains priority. In the meantime the combination of legislation from the two regimes and the emerging case-law will define the scope of authors’

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Ecuador walks legal tightrope (whilst piggybacking Wikileaks founder Julian Assange) Will Odogwu BLC Tutor

On June 19th Wikileaks founder Julian Assange threw himself on the mercy of the Ecuadorian embassy in London. The move was prompted by the loss of his appeal to the UK Supreme Court against extradition to Sweden to face questioning and possible charges in connection with rape allegations. According to Mr Assange the allegations of criminal conduct in Sweden are false and a mere pretext aimed at allowing his further extradition to the United States to face as yet undisclosed charges in connection with his role in the release of thousands of classified documents, including confidential US diplomatic cables. It seems safe to assume that his decision has given his hosts at the embassy a diplomatic, political and (potentially) legal challenge without precedent in recent Ecuadorian-UK bilateral relations. But crisis point has not yet been reached. We, like Assange and his embassy hosts, must await the decision of the Ecuadorian government (ultimately President Rafael Correa) as to whether Assange will be ‘granted asylum’; a decision which according to recent reports is imminent. But what does the grant of asylum mean in the present context? What legal significance and implications does it carry?

Unlike cross-border flows of persons seeking sanctuary in the country which they have physically entered, we are not here confronted with a case of asylum regulated by the UN Geneva Convention of 1951. Rather, the legal basis, if any, for the practice of which Assange’s desperate flight to the embassy appears to be the latest high-profile example (the reader is referred to the cases of whistle-blowing Chinese official Wang Lijun and his fellow countryman, the self-taught lawyer and social activist Chen Guangcheng for recent precedents), is an institution typically referred to as ‘diplomatic asylum’. The critical distinction between this and the universally recognised institution regulated by the 1951 Convention is the territorial dimension. In the case of what is usually labelled ‘territorial asylum’, asylum is granted to an individual or individuals who are inside the territory of the granting State. In contrast, the granting of asylum by one State to an individual who at the relevant time is within the territory of another State and which is secured through the mechanism of the former State’s inviolable diplomatic premises inside that other State has a rather more controversial legal history and status.

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Legality of an Ecuadorian decision to grant diplomatic asylum to Assange At least since the International Court of Justice’s judgment given in relation to a dispute between Colombia and Peru over the former’s decision to grant asylum at its embassy in Lima to Víctor Raúl Haya de la Torre (the leader of a failed Peruvian military rebellion), diplomatic asylum has been presented in law schools as the paradigm example of an institution recognised only in regional customary international law – specifically, the region of Latin America. In the case in question (Colombian-Peruvian asylum case, ICJ Reports 1950, p.266) the majority of the Court determined that the issues at stake turned primarily upon the interpretation of multilateral treaties to which Colombia and Peru, among other Latin American States, were party.

Due to the absence of treaties on the subject of diplomatic asylum outside Latin America, the ruling is for the most part of minimal assistance in assessing the legal status of the actions of Ecuador vis-á-vis the UK. However, certain statements in the majority opinion can be understood as having implications beyond positive treaty law and arguably beyond the strictly Latin American customary international law context.

On reading the judgment, it is immediately apparent that there cannot be found within its paragraphs any statement that a general right to grant diplomatic asylum, which other States are obliged to respect, exists in customary international law. Certainly, the Court appears to maintain precisely the contrary, at least in the general rather than specifically Latin American context. The reasoning offered is grounded in the distinction between territorial and diplomatic asylum when viewed from the perspective of general considerations of sovereignty. In the case of territorial asylum the Court maintained that there is no interference with the sovereignty of the State from which the individual in question flees given that the actual grant of asylum occurs outside the territory of that State. In contrast, the practice of diplomatic asylum was viewed by the Court as involving a derogation from the sovereignty of the State receiving the diplomatic mission and an intervention in the internal affairs of that State by virtue of the obstruction caused to its ability to enforce its own laws on its own territory. In the words of the Court “[s]uch a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case.” However, this seemingly broad statement of principle was only directed to the limited purpose of rejecting Colombia’s arguments that certain specific legal rules governing the practice of diplomatic asylum, and not the legal permissibility per se of such a practice under customary international law, could be deduced from treaties laying down rules on territorial asylum.

In spite of the limiting context of the Court’s pronouncements, when those views are combined with the weight provided by two further factors the legal fate of the institution of diplomatic asylum – at least in a European context – appears decidedly grim. Firstly, a marked majority of the recognized international law publicists who have written on the subject reject the proposition that customary international law in general obliges States to respect grants of diplomatic asylum made on their territories. Latin American publicists tend to take the contrary view, but almost invariably limit that view to the law prevailing between States of Latin America. Sec-

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ondly, State practice outside Latin America shows a marked tendency over the last two centuries towards the abandonment of arguments based on diplomatic asylum. Whilst European States in particular regularly and generally acknowledged the right of embassies to shelter fugitives during the 17th and 18th centuries, no consensus of this kind is apparent in more recent times. Where protection has been provided by embassies in the 20 th century, the right to do so has generally been contested by the territorial State or the States involved have consensually agreed a resolution through diplomatic channels without statements being made suggesting that the solution arrived at was dictated by legal obligation (i.e. evidence of the allusive opinio juris required for crystallization of customary international law was lacking). As a consequence, the better view appears to be that in modern times there is no general right of diplomatic asylum recognised as part of customary international law beyond Latin America.

There are some indications in the writings of international law scholars that one or more categories of exceptional situations exist. It is said that where overriding considerations of humanity dictate that refuge be given, it can be so given in accordance with international law. Sir Hersch Lauterpacht has described this exception as one “which defies legal definition”. This is closely paralleled by a more clearly framed exception which applies in those cases where the grant of diplomatic asylum does not obstruct the exercise of jurisdiction by the authorities of the territorial State. This may be so where the receiving State consents to the action of the sending State, or where the governmental machinery of the former State has suffered a complete breakdown, or when there is no duly constituted governmental authority at the relevant time, or the territorial State authorities are otherwise not up to the task of protecting the individual(s) in question. Many of these situations are alternately viewed as giving rise to the risk of ‘mob violence’ or ‘vigilante justice’, i.e. punishments dealt out at the hands of rogue bands of irresponsible forces not under the control of the State.

The widely accepted nature of this exception was strongly hinted at by the ICJ in the Colombia/Peru asylum case where it noted that “[i]t has not been disputed by the Parties that asylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population”. Some authors have suggested that this situation should be distinguished from diplomatic asylum and is better described as a right to provide temporary shelter in embassies based on humanitarian grounds and furthermore that such protection should be available regardless of whether the nature of the offence in question is so-called ‘political’ or ‘common’. Whatever the preferred view on that question may be, it is difficult to see any of these exceptions having any direct relevance to the case of Julian Assange, given that the particular threat which he faces is that of being arrested (he appears to be currently in breach of the conditions on which he was granted bail) by the duly constituted authorities of the UK so that he may be extradited in accordance with a court order to the exceptionally stably governed jurisdiction of Sweden.

It still remains arguable that some passages of the judgment in the Colombia/Peru asylum case contain the kernel of an exception applicable in situations where there is evidence of “the

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subordination of justice to the Executive authority”. In the relevant passages of the judgment the ICJ was concerned with whether the case in question was an ‘urgent’ one within the meaning of the Havana Convention of 1928 and whether the safety sought to be secured for the relevant offender by the grant of diplomatic protection in this case was the ‘safety’ which that instrument, properly constructed, was concerned to ensure. The Court, at p.284 (ICJ Reports 1950), was of the view that neither concept properly applied in the context in which Colombia had granted asylum: In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country; nor can it be admitted that in referring to “the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety”, the Convention envisaged protection from the operation of regular legal proceedings.

As the Court developed this line of reasoning it drifted into the use of more general language which encourages the view that it was addressing features of the concept of asylum in general. It also elaborated on its reference to “regular” legal proceedings: In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to this rule can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents...

As has already been noted, according to Assange he faces the threat of being subjected to a politically motivated prosecution in the United States for which the step of extradition to Sweden is merely the instrumentality intended to bring that final result about.

Without embarking on a discussion of the plausibility, let alone provability, of Assange’s contentions, it must be conceded that Ecuador’s successful reliance on such an argument is beset by a number of preliminary hurdles. Firstly, despite the generality of some passages in the ICJ’s opinion in the Colombia/Peru asylum case, it still appears reasonably clear that the Court was concerning itself with the right of diplomatic asylum recognised under the provisions of the Havana Convention of 1928 to which both Colombia and Peru were parties and on the basis of which instrument the argument it was analysing had been framed. The observation earlier in the opinion that “[s]uch a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case...” suggests (subject to the qualification based on its context already noted above) that without the Havana Convention and possibly the Latin American identity of the States party to the dispute, there would have been no evidence of the existence of a right of diplomatic asylum in international law and hence no point in arguing about the conditions in which such a non-existent right could be properly invoked.

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A further formidable obstacle would appear to be the remoteness of the threat of politically motivated prosecution (regardless of whether it can be proved that the threat has that character).

Whilst the situation might have been different if Assange had been in the United States facing the imminent prospect of such charges and had in that country taken flight to the embassy of some State sympathetic to his cause, the realities of the situation appear to require Ecuador (if it intends to grant diplomatic asylum and legally justify such a step) to establish a great deal more than it could reasonably hope to do. After establishing that the relevant exception should be construed in a broad functional rather than narrowly formalistic way, Ecuador would presumably need to show that the nature of the involvement of the Swedish and possibly UK authorities is either complicit with the alleged illicit US plan or otherwise can be characterised as that of mere unthinking instruments in the hands of the US Executive. Whilst the instrumental argument might be compelling against the UK authorities and courts, which are bound by the strictures of the European Arrest Warrant, Sweden is not faced with such a rigid legal framework when considering whether to accede to a request for extradition to the US. Without Ecuador succeeding on the above points, it is difficult to see how the exception recognised by the ICJ could be applicable in the context of the facts pertaining to Assange. Not forgetting that even then, we are all the while maintaining the assumption that it could be established that the observations in the Colombia/Peru asylum case are relevant to a context beyond the realm of Latin American customary international and treaty law.

In light of these factors, it appears that Ecuador’s chances of establishing the international legality of any grant of diplomatic asylum to Assange which it may choose to make is tenuous at best. This has the important consequence of destroying its prospects of establishing any obligation on the UK to guarantee the safe passage of Assange out of the country; a matter presumably of particularly great importance to Assange should he wish to resume life beyond the walls of an embassy compound. If Assange were to leave the embassy, even in the custody of diplomatic officials of Ecuador, it seems likely, on the basis of the foregoing discussion, that the UK would be within its rights under international law if it arrested him despite Ecuador’s protests.

None of this implies that Assange can be reached whilst in the Ecuadorian embassy and there are numerous high profile cases in which those seeking diplomatic asylum have remained for years on diplomatic premises whilst awaiting assurances for their safety. Indeed, Víctor Raúl Haya de la Torre, the individual at the centre of the Colombia/Peru dispute, remained in the Colombian embassy in Lima for five years. Cardinal Mindszenty who sought refuge in the US embassy in Budapest in 1956 was not permitted to safely leave the country until fully 15 years had elapsed.

Is Ecuador under any present or future obligation to surrender Assange to the UK authorities?

For the time-being, the UK authorities have not requested the diplomatic staff of the Ecuadorian embassy or the Ecuadorian government in Quito to surrender Assange into the custody of

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UK law enforcement. Whilst this situation persists it is clear that there is no obligation whatsoever on Ecuador to take positive steps to eject Mr Assange from its embassy premises. It is quite possible that no such request will ever be made and that the impasse will be resolved by negotiations using diplomatic channels. If on the other hand the UK authorities eventually do ask Ecuador to surrender Assange, the question arises as to whether Ecuador will thereby come under an obligation to comply with that request. The issue comes to the fore due to the inviolability of embassy premises which is universally recognised as a principle of customary international law; that principle was put on a treaty footing by the Vienna Convention on Diplomatic Relations 1961. Most of the States of the world, including Ecuador and the UK, are party to the 1961 Convention.

To make an attempt to resolve the question posed, we must return to the dispute between Colombia and Peru over Víctor Raúl Haya de la Torre. After the first ruling in the affair (referred to in discussion above), the dispute came before the ICJ on two further occasions. In the last of these proceedings (Haya de la Torre case, ICJ Reports 1951, p.71), Colombia requested the Court to rule on whether its earlier determination that the diplomatic asylum granted by Colombia to Haya de la Torre had not been in accordance with the requirements of the Havana Convention of 1928 meant that Colombia was obliged to surrender him at the request of the Peruvian government. Surprisingly the Court concluded that even though it was a duty of diplomatic missions and persons assigned to them to comply with the laws of the receiving State (an important ground for the holding in the first decision rendered in the dispute), neither they nor the State which sent them owed any duty in the present context to render positive assistance in the administration of the laws of the receiving State.

Again, this holding was related in complex ways to the context provided by the Havana Convention. When making these pronouncements, the Court was expressly dealing with a gap in the provisions of the 1928 Convention. However, the interpretation of this gap appeared to be influenced by the presence in the text of an express obligation to surrender persons at the request of the territorial State when those persons were accused of ‘common crimes’. Haya de la Torre was charged with an offence relating to military rebellion which the Court determined clearly fell within the province of the provisions dealing with political offenders. As the relevant treaty articles were silent on the issue of the obligation to surrender upon request such persons in situations where asylum had been irregularly granted, no inference could be made that such obligation existed.

Despite the treaty law forming the context of the ICJ decision and the uncertainty generated by the possible relevance of regional Latin American customary international law in default of express treaty regulation on specific issues, it appears at least arguable that Ecuador, if eventually faced with a UK request that Assange be surrendered, may benefit from a similar legal position to that in which Colombia found itself in the Haya de la Torre case.

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Courses of action open to the UK if Ecuador does not voluntarily surrender Assange Opinion is split as to whether the authorities of the receiving State of a diplomatic mission are entitled to forcibly enter diplomatic premises without the consent of the head of that mission in order to obtain custody of an individual subject to arrest under the receiving State’s laws and who is being harboured on those premises contrary to international law. Certainly many factors may be relevant to the proper analysis of this question, such as whether the relevant individual is a national of the sending State (i.e. the State of the embassy), whether a right to grant diplomatic asylum is non-existent between the States in question or has simply been improperly exercised, and whether the bringing to justice of the individual in question is a matter of great urgency. There appears to be consensus that such action would certainly be impermissible if not preceded by a formal request by the receiving State that permission to enter be granted. It may also be necessary, whether or not such request has been acceded to, to grant the diplomatic staff a reasonable opportunity to ensure the security of the archives and other papers of the mission so that they will not be vulnerable whilst the wanted individual is seized and taken away.

As mentioned, opinion is divided and many reputable publicists writing on the subject take the view that the inviolability of diplomatic premises is, as a rule, absolute and that there is no legal right for the territorial State to forcibly enter the premises so as to remove a fugitive.

Among authors holding this view can be counted F. Morgenstern, Arnold Raestad and the authors of the Harvard Law School draft convention on diplomatic immunities of 1932. Under such a view, the territorial State would be left to the sole recourse of diplomatic channels for vindicating its position. It must also be noted that a strict reading of the provisions of the Vienna Convention on Diplomatic Relations 1961 supports this position insofar as it does not suggest that there are any grounds on which the inviolability of premises may be qualified or lost, even though diplomatic officials are obliged to respect the laws of the receiving State and to refrain from interfering in the internal affairs of that State (Article 41). It can however be argued that Article 39 (laying down conditions appertaining to the loss of personal privileges and immunities when the functions of a diplomatic agent come to an end) must be paralleled by a similar implied rule regulating the loss of the inviolability of premises where diplomatic relations are broken off between the sending and receiving States. Even this argument may be met with the response that it leads to possible contradiction with the rule set out in Article 45.

Nevertheless, a significant number of respected authors, including Sir Hersch Lauterpacht, have at times maintained the view that the rule stipulating the inviolability of diplomatic premises does not apply in those cases where such premises are being used for unlawful purposes which do not relate to the fulfilment or facilitation of the diplomatic mission such as harbouring fugitives from justice. According to such authors, inviolability has been granted to enable the functions of the mission and is accordingly circumscribed when that inviolability is being relied upon in furtherance of purposes outside those functions.

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In spite of the existence of arguable ‘legal cover’ for forcible entry in such circumstances, the practice does not appear to have been adopted by States in the 20 th century or thus far in the 21st. Perhaps the most striking of such exercises of restraint occurred in the United Kingdom.

In 1984 shots were fired from the Libyan embassy in London killing local police woman Yvonne Fletcher. The UK authorities responded by laying siege to the building for 11 days, but did not forcibly enter the embassy. Diplomatic relations were severed with Libya and the embassy staff members were eventually expelled from the UK. Whether or not the handling of such incidents is seen as supporting the view of authors which support an absolute version of inviolability or similarly, those who advocate a strict reading of the Vienna Convention on Diplomatic Relations of 1961, the fact is that forcible entry is an action tending to heighten rather than lessen tensions between the States concerned and may prompt retaliation. It is perhaps then no surprise that generally diplomatic solutions have been preferred in State practice and forcible entry avoided. When combined with the fact that past experience has shown the UK to err on the side of caution when it comes to respecting the inviolability of diplomatic premises it appears likely that any impasse in the Assange affair will be resolved through diplomatic channels. However, if Ecuador were to grant asylum and the UK to refuse to give guarantees for Assange’s safe departure from the country, a reference to the ICJ on the question would be another option avoiding the legal risk associated with a unilateral decision to storm an embassy and would perhaps provide useful clarification of the legal picture.

As a final possibility, a ‘cloak and dagger’ style solution whereby Assange is covertly smuggled out of the UK by Ecuadorian officials cannot be ruled out, although is perhaps unlikely. In any event, the coming days and weeks will reveal all: will it be (A) a long-term stalemate, (B) a compromise diplomatic solution, (C) a rejection by Ecuador of Assange’s asylum claim, (D) a reference to the ICJ, or (E) the ‘wild card’, none of the above?

CLICK 1 FOR TRANSPORT AND 2 FOR A BARRISTER! Who would you go to for legal advice? If you saw an advert from a well known UK trucking company offering legal services as a newly created Alternative Business Structure, would this be your choice... particularly when it was a way of leapfrogging the additional services of the solicitors’ profession?

Yes, a new offshoot of a well known UK trucking company, Eddie Stobbart, is Stobbart Barristers...which plans to offer access to a UK-wide network of specialist barristers for any area of law using a fixed fee, pay as you go model... curioser and curioser.... . !

Denise Ashmore, BLC Director

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CEEMC continues successfully for the 18th year Steve Terrett

Central and East European Moot Court

BLC Director, Warsaw

Each year, the British Law Centres organise the Central and East European Moot Court Competition (CEEMC) under the auspices of the Centre for European Legal Studies (CELS) of the University of Cambridge and the Court of Justice of the European Union, both of which host prizes awarded. This year, the competition was held in Valetta, Malta, and 20 teams from throughout the Central and Eastern Europe region competed in front of a bench of judges led by the UK’s Advocate General to the Court of Justice (Eleanor Sharpston QC) and comprising distinguished members of the judiciary, EU institutions, legal professions and academia. Amongst the fierce questioners from the bench this year were academics from the universities of Cambridge and Oxford, staff of the EU Commission and Court of Justice, and senior representatives of the sponsoring firm, Clifford Chance. It certainly wasn’t easy for the competing teams...

Easy, perhaps not, but most definitely enjoyable! Teams from Armenia, Belarus, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Lithuania, Latvia, Kazakhstan, Hungary, Malta, Moldova, Poland, Romania, Russia, Slovak Republic, Slovenia and Ukraine have all competed in the CEEMC over the years, and many of the former competitors return as coaches of the next year’s team. Indeed, one of the judges (now at the University of Oxford) was himself a former CEEMC competitor! The family atmosphere of the competition distinguishes it from other moot court competitions and ensures that the lessons learned by one group of competitors are passed down to the following year’s team, all of which helps to raise the quality of the mooting (although it is, admittedly, more difficult to see annual improvement in the singing competition which takes place at the party on the final night!)

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The competition gives participants the opportunity to taste life as an advocate. They are required to act as a lawyer in a legal case, inspired by cases currently awaiting resolution by the Court of Justice, and to deal with the arguments offered by their opponents (and judges) when presenting their own submissions as to how the problem should be resolved. Despite their understandable nervousness at the outset of the competition, all of the advocates benefit from having acted as legal counsel in at least 2 moots, representing both sides of the dispute and re -thinking their strategy as they change client. Such flexibility, and the growing ability to deal with practical questions posed by the bench, is the best way for young lawyers to realise that law is the science of questions, and rarely involves clear-cut answers than can simply be learned. The skills of persuasion honed by participants can also be viewed during the final party, where invitations to dance are the subject of a series of suggestions, replies and, occasionally, rebuttals.

The sun-drenched skies of Malta provided the perfect backdrop for the CEEMC 2012 and the wonderful court-rooms in which the competition took place offered realistic experience of what it feels like to argue a case from the lawyers’ bench. For those teams which progressed to the second stage and final of the competition, they also got to experience what it is like to be fullysuited and in court whilst your colleagues frolic in the sea. Nevertheless, the winning team also experienced the rewards that life as a successful lawyer can bring, and the team from the University of Ljubljana, Slovenia, won a trip to Cambridge University, where they will be hosted by the Faculty of Law and will visit the Supreme Court and other sights in London. The competition’s best speaker, Alexandra Teodora Oprea from the Alexandru Ioan Cuza University, Iasi, will undertake a stage at the chambers of AG Sharpston at the Court of Justice, whilst Hristo Mihalylov of the St Kliment Ohridski University in Sofia, Bulgaria, will undertake a stage at the chambers of Alexander Arabadzhiev, the Bulgarian judge to the CJEU. Numerous other speakers, noted by the judges throughout the competition, received book prizes to reflect the excellence of their advocacy. This year, a one-off “quick reactions award” was given to Tomas Jungwirth of Charles University Prague who, when instructed to finish his pleadings in two final sentences, began by introducing himself and his argument at length. When he was told by the judges that he had already used up one of his sentences, without pause he replied “comma” and continued to finish his “first” sentence! The CEEMC, it seems, brings out the creative side of young advocates...

For those who have already experienced the CEEMC, it remains a remarkable and unforgettable event which will stay with them throughout their professional lives. For those who have not yet experienced the magic of the moot court, the good news is that there is always next year! Keep your eyes open for information concerning this year’s CEEMC on our web-site www.ceemc.co.uk and we hope to see you there!

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Subscribers’ contributions and further information

In this new feature, we are keen to publish a selection of your comments and opinions on some of the more controversial issues in this edition of Obiter Dicta. Whether you agree or disagree with the approach taken by the author of an article, or if you have a different opinion of the situation altogether, we would like to hear from you! In particular, we would welcome your opinions on the following issues contained in this edition of Obiter Dicta: 

Should the Catholic church (or any similar institution) be legally responsible for the acts of their ministers?



Is Julian Assange a hero or a villain? How should the law deal with leaked confidential information that may be of public interest?



What are the main current challenges for the legal professions today? Should lawyers have the right to strike, or not?



What are your thoughts on the “cab rank rule” for English barristers? Do you have anything similar in your system?

Please send your comments to blcobiterdicta@gmail.com

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