OBITER DICTA EDITION 9 by British Law Centre

Edition 9 April 2014

APRIL 2014 9th EDITION

KEEP CEEMC 2014

BLC Events

CALM RECRUITMENT FOR BRITISH LAW CENTRE COURSES 2014-2015 NOW OPEN!!!. For more information visit our brand new

EU Law Perspectives

website at www.britishlawcentre.co.uk

What’s new for us in 2014? English Law Updates

CEEMC –24 April CEEMC 2014 Celebrate with us our 25-28th April 20th Anniversary in Warsaw ………..

Supreme Court Updates

Special Interests

Want to

EU law Conference “Relationship between EU and national courts—A Judicial Synergy”

sponsors

contribute ?

Our 20th moot court competition is in Warsaw where our hosts will be the National Supreme Administrative Court

BLC Firms Fayre 2014 Workshops BLC students and alumni had a vast array of workshops to choose from in March / April this year… more information

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CEEMC – 20th Anniversary Moot Competition and Conference and celebratory conference 24-28th April 2014 in Warsaw 2014! Denise Ashmore

Central and East European Moot Court

BLC Course Director

The Central and Eastern Moot Court Competition (CEEMC) was founded by the British Law Centre at a time of great change in Central and Eastern European and in its 20 years of existence has witnessed many historical changes of import to native countries of competing teams. The EU enlargements in 2004, 2007 and 2012 brought a major change which meant a change of borders with the majority of teams now coming from EU Member States. In the 2004 Riga CEEMC judges and teams were able to witness and participate in the celebrations. The modern skyscraper skyline that 2014 teams will see when arriving in Warsaw for this year’s celebratory event is a light distance away from the CEEMC’s first two years. Competing teams travelled between the airport, train and bus stations in Warsaw to the Nicolaus Copernicus university in Torun at what only could be described as a snail’s pace, with the competitors’ preparation, laughter and singing accompanied by bumps, creaks and judders of the coach meandering its way along a badly maintained road. Over the years of course the CEEMC’s anthology of anecdotes is ever increasing, with tales of funny moments, near misses, comic events, and mild panics… to mention a few:

the apparent disappearance of Lord and Lady Slynn, when chairing the first Torun moot, when their driver ‘lost’ his way when taking them between two buildings that were actually a walking distance apart,



the tribulations facing a Kyiv team competing in the CEEMC in Zagreb, whose 3

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visas were issued on the morning of their departure in one country and delivered by plane to Ukraine, with the unlikely assistance of an extremely surprised and unconnected person who just happened to be flying that day! Unbelievably after all that, the team coach’s car broke down at the border, yet the team still managed to get to Zagreb to moot that afternoon but in casual clothes; their formal wear still being locked in the car boot. 

the surprise and consternation of judges and the opposing team when the mooting team argued their case in Krakow… one of the teams having confused claimants and respondents!



the time when the timekeeper had forty winks in the Riga final...

And of course there are many other stories too numerous to tell here, each competition has its own stories!!! What hasn’t changed over the 20 years of the CEEMC is the sense, of excitement, fun and camaraderie that has always characterised the competition, the friendliness and support of the CEEMC judges, the commitment of the competitors, the welcome of the hosts and the adrenaline charge, quickly followed by a keen sense of achievement and satisfaction, that all teams clearly felt knowing that they had presented their case well before the judges. The spirit of the event is no more clearly shown than by the effort put in by teams to prepare their ‘national choice of song’ ready for the traditional singing competition. Contributions over the years have ranged from a Dean dressing up as a pirate in Bratislava, choreographed dance routines (not only from the Georgians) and of course the traditional renditions of Waltzing 4

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Matilda by Professor Cornish, side by side with the French drinking song led by Lady Slynn and AG Sharpston...All culminating of course, in the (always excellent in effort if not in tone), annual judges’ song… ranging from ‘Dr Danny’ (Gdansk) to ‘His Name was Sheldon ‘in Brno last year … All at the BLC are extremely proud of the CEEMC and very grateful to 

the judges who gave up their valuable time; in particular of course to the dedication of the two CEEMC Presidents, Lord Gordon Slynn and AG Eleanor Sharpston and our returning team members who act as our ushers, 

the firm of Clifford Chance who have been our primary sponsors throughout. 

the competing teams and coaches, who have become our friends.

We hope that we have made a small contribution over the years in acquainting young lawyers with the work of the Court of Justice and to the impact of European Union law both in Associated and Member States……….long may the event continue!!! In our landmark 20th year therefore we had to take the time to reflect on our history but also to look to the future whilst celebrating this twentieth birthday. 5

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We hope that many of our friends will join us in our celebrations at one or both of the following celebratory events which will take place on the 24th April 2014. 1. CEEMC Anniversary Conference

Central and East European Moot Court

‘The relationship of the EU and national courts, a Judicial Synergy ‘ The main speakers include Advocates General G Eleanor Sharpston and Maciej Szpunar and the conference will also look at perspectives from national courts, government, practitioners and NGO’s.

2. CEEMC 20th Anniversary Dinner This will take place at 20.30 on 24th April Click here for brochure and details of both events. We very much hope to welcome back many of our CEEMC’ers to join together with the CEEMC judges and conference guest at one or both events!

And of course don’t forget this year’s competition… you may already be competing but if not you are always welcome to join the audience.

CEEMC 2014 To give you a taster on the next page you will find the preliminary reference questions that teams are asked to moot on this year!!! Events this year take place in the mythical EU Member State of Eripme, where our hero, Duorp, argues breaches of data protection law and a failure by the national courts to refer questions to the CJEU under the Article 267 TFEU procedure… to read the whole question go to www.ceemc.co.uk... 6

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CEEMC Moot Question 2014 QUESTIONS REFERRED BY WAY OF PRELIMINARY REFERENCE

Central and East European Moot Court

1. a) Is the statement ‘no belief in politics’, such as that which was recorded by the Timsnart security services, data revealing political opinions within the meaning of Article 6 of the Framework Decision? b) As regards personal data to which Article 6 of the Framework Decision applies, what are the criteria to be applied by a national authority in determining whether processing of these special categories of personal data is ‘strictly necessary’ within Article 6 of the Framework Decision, and is Article 8 of Directive 95/46 relevant in that regard? In particular does Article 6 preclude Member States from granting their police authorities unfettered discretion to assess whether processing is strictly necessary in circumstances where national law provides for all necessary safeguards, securing and protection of that data? 2. a) Does Article 13(1)(c) of the Framework Decision prevent a Member State from transferring personal data to a third state in circumstances where the Member State from which the data was obtained has given a general consent that the transferring Member State may process and use the transferred data for any related criminal investigations and without specifying whether or not that data can be transferred to another Member State or third state? b) When special categories of data within the meaning of Article 6 of the Framework Decision are transferred to a third State does Article 13 of the Framework Decision require that the Member State transferring the data verify whether the third State will process that data in accordance with the requirements under Article 6 which apply to Member States? 3. Does an EU Member State “implement” EU law within the meaning of Art 51(1) of the Charter, by applying a bilateral treaty, signed prior to the accession of that MS to the EU with a third state, which allows the transfer of personal data? In particular: Are the Member States bound by Arts 7 and 8 of the Charter when they apply such a bilateral treaty? Are Arts 1(2), 13 and 26 of the FD, on the one hand, and Arts 3, 25 and 26 of Directive 95/46/EC, on the other hand, of any relevance in this regard? b) Are the Member States under the obligation, pursuant to Art 351(2) TFEU, to renegotiate such a bilateral treaty in order to render it compatible with the Charter? Can a Member State, which fails to fulfill this obligation, be regarded as failing to “implement” EU law for the purpose of applying the Charter? 4. Is a national constitutional court that is called to decide on constitutional complaints claiming violation of fundamental rights guaranteed under the national constitution, such as the Eripme Constitutional Court in the present case, a “court or tribunal” within the meaning of Art. 267 TFEU, entitled to submit a request for a preliminary ruling to the Court of Justice? 5. a) Can the mere failure of a national court of last instance (such as the Eripme High Court or the Eripme Constitutional Court) to make a preliminary reference to the Court of Justice of the EU - i.e. regardless of whether on the substance the judicial decision is compatible with EU law – be considered a “manifest” breach of EU law, for which the State of Eripme should be held liable according to the conditions of state liability for judicial breaches of EU law established in Köbler? In this regard, does the failure of the national court to examine some of the elements spelled out by the Court in CILFIT for the purpose of invoking the acte claire exception, amount per se to such a “manifest” breach of EU law? b) Is the condition for a “manifest” breach of EU law, as spelled out in Köbler, different from the condition for a “sufficiently serious” breach of EU law, as spelled out in Brasserie de pêcheur? If yes, how? c) Should the State of Eripme be held liable according to the conditions of state liability for either (i) incorrect implementation of the terms of 2008 FD and/or (ii) failure of the Eripme Police Authority to process the personal date in accordance with the 2008 FD and/or Articles 7 and 8 of the EU Charter?

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The BLC year in Obiter Dicta

BLC NEWS AND EVENTS

Saving the World during one BLC weekend!

OBITER

On Friday 28th February, the BLC Warsaw was delighted to host a lecture given by Her Excellency Beata Jaczewska and a team of specialists from the Ministry of the Environment. The lecture title provocatively asked “Can you save the world?” and offered a fascinating insight behind the scenes of the negotiations underpinning the Kyoto-II new global deal on climate change. This was followed on Saturday 1st March with a workshop, during which participating students were given an intensive introduction to the role of national negotiator. H.E. Jaczewska is the former Deputy Minister of the Environment, who was Head of the Polish Delegation to COP19/CMP9 and responsible for the overall running of the negotiations in Warsaw. She is also a graduate of the British Law Centre in Warsaw and member of the Warsaw CEEMC moot court team. As someone who retains fond memories of her time on the BLC Diploma Course, and someone who recognises the value of the Diploma in the world of work, H.E. Jaczewska kindly accepted our invitation to share her broad sphere of knowledge and experience with the BLC’s students. She was joined by Katarzyna Snyder, Monika Kuśmierczyk, Adam Guibourge-Czetwertyoski and Grzegorz Grobicki, who are Poland’s chief negotiators of the most important issues to be resolved as part of the “post-Kyoto” regime to be signed in 2015. The “Kyoto-II negotiation team” discussed various aspects of the negotiations process, offering practical and privileged viewpoints as to how Poland, and many of the other negotiating countries, sought to protect their own national interests whilst simultaneously seeking to conclude a Treaty which aims to “save the world” from environmental disaster. Friday’s lecture was followed up by a workshop on Saturday. Numerous BLC students applied to participate in the workshop session and those who were selected were presented with a unique opportunity to experience the demands facing a national negotiator during such important international conferences as the COP19/CMP9.

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BLC NEWS AND EVENTS

The BLC year in Obiter Dicta

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Each student had been allocated a country to represent and provided with briefing notes which outlined that countryâ&#x20AC;&#x2122;s individual concerns, demands and hopes during the COP19 negotiations. Whilst maintaining high levels of decorum and diplomacy (which slipped only on a very few occasions!), the national representatives were required to intervene and make suggested amendments to a draft text of the Kyoto-II convention, which had been prepared by the host country (Poland). Minister Jaczewska acted as chair of the meeting, as indeed she had during the real negotiations a few months before, and the student representatives received advice and preparation from the team of specialists from the Ministry of the Environment. During the 4 hour workshop, students gained a wealth of information concerning how the negotiation process looks within the UN system and how even a single country (including small ones such as Togo) can influence the text of a document which will apply to most of the worldâ&#x20AC;&#x2122;s countries. They also discovered how regional coalitions can form, even between countries whose individual priorities for the convention may sometimes be

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BLC NEWS AND EVENTS

The BLC year in Obiter Dicta

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incompatible, and how such the EU’s scheme of closer cooperation requires EU Member States to coordinate their approaches within the framework of the Lisbon Treaty. The realism of the workshop and the roles fulfilled by the national negotiators was demonstrated in the fact that the workshop concluded with agreement on a newly-amended draft text which was remarkably similar to that which was approved in the real COP19 in Warsaw. However, of more importance was the fact that the participating students genuinely felt that they acquired valuable knowledge and skills from the workshop itself. Many of the participants wrote to thank Minister Jaczewska and the Ministry team for having devoted their time to teach the BLC students involved. Everyone commented positively on the “hands-on” approach, the professionalism of the Ministry team and the warm approach shown by Minister Jaczewska herself. Everyone at the BLC was extremely grateful to Minister Jaczewska for having returned to the BLC – and we all hope that it will not be the last time that she does! P.S. Actually, we know that it won’t be the last time that Minister Jaczewska returns to the BLC, because she has already agreed to speak at our forthcoming conference on 24th April 2014. She will be discussing the impact of Poland’s EU membership on government policy-making – her speech is entitled: The CJEU as last instance for policy-making by national governments.

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EU LAW PERSPECTIVES

This section contains student contributions relating to free movement within the EU. For the current edition students have written about the freedom of movement of persons, cross-border recognition of awards, law enforcement and much more.

For sale! EU Citizenship Ruairi O’Neill BLC tutor

What is the point of a system of citizenship dependent upon recognition by individual nation-states? The answer to this question almost invariable refers to the notions of citizenship as providing the glue that binds people to the polity, the locality, the community. A citizen, distinct from the “other”, participates in elections, contributes to the development of the society by, among other things, paying taxes and actively participating in community

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affairs.

Prior to the establishment of the institution of European citizenship, membership of the EU brought with it additional

benefits

for

citizens. The first and most elemental is the doctrine of non-discrimination grounds

nationality,

enshrined in Article 18 TFEU and given form across the smorgasbord of European rules Through

and

regulations.

this

doctrine,

citizens of the Member States could export to other EU Member States their right to equality before the law. At the micro-political level this one rule, in the name of cultural diversity, imposes a negative obligation on all Member States to refrain from imposing rules requiring the citizens of other Member States to integrate into the host society, either by requiring them to learn the local language, pay for a visa or comply with various integration tests and rules that still apply to third country nationals.

At the macro-political level, the doctrine of non-discrimination had the effect of publicizing to the world that the European Union was an international organization as well as a polity which is based firmly on the rule of law. This proved both very good for business in a globalized world but also gave the EU the legitimacy to pursue a foreign policy which, while lacking in much coherence, put the rule of law stage-center.

It was perhaps not surprising then, that the European Union in 1992 should adopt the institution that

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is European Citizenship; a new form of identity that would be added to the multiple identities of the citizens of the Member States. Article 20 TFEU (as amended) clearly states that this new identity shall be in addition to, and does not replace, national citizenship.

The two most important rights that

came with it were the right to move and reside anywhere in the EU (Article 21 TFEU) and the right to vote in European Parliamentary elections (Article 22 TFEU). The right to non-discrimination on the grounds of nationality was already enshrined in the Treaties and was extended by default to the new European citizenship. The Court of Justice of the EU went as far as to say in Case C-184/99 Grzelczyk that EU citizenship was “destined to be the fundamental status of nationals of the Member States”. Since then, academics have pondered the meaning of this statement, its scope for application as well the “substance” of EU citizenship and whether the Charter should apply to it, as was discussed in Case C-434/09 McCarthy. Beyond these rights and powers that individuals can have once they have exercised their rights to free movement within the Union, it is still safe to say that national citizenship offers a wider array of treats and powers; one of the big reserved powers is the ability of citizens to vote in national elections. And without national citizenship, it is not possible for a person to acquire European citizenship. This point was eloquently put by the CJEU in Case C-369/90 Micheletti where the Court stated that the, under public international law, it is for Member States to determine the rules on acquisition and loss of

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citizenship. Further, once a person becomes a citizen of a Member State, the principle of mutual recognition requires the other Member States to respect the acquisition. The only caveat to this rule is that, in determining acquisition or loss in an individual case, “due regard” must be had of European law, the meaning of which the Court tackled in Case C-192/99 Kaur, and then again in Case C-135/08 Rottmann when the Court said that “the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by European Union law, the national rules concerned must have due regard to the latter”. What these rules could mean is that Member States are, to a very large extent, free to determine their own rules on the acquisition of nationality. This can only be a good thing, as it allows long-term migrants to naturalise, thus respecting their and their family’s ties with the host country and reinforcing the host society. By way of example, why then would a third-country national want to become a citizen of Malta, an Island micro-state with around 400,000 residents? What makes Malta particularly interesting is that it has embarked on an ‘Individual Investor Program’ which, effectively, is

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an invitation for high value individuals to purchase Maltese citizenship. So why would these individuals wish to purchase Maltese citizenship?

The answer to this question is simple: visa-free travel throughout the European Union. For third country nationals the goal of naturalisation is as much about the right to non-discrimination and free movement within the EU as it does about integration into the host society; especially if they are rich. From the case law of the CJEU, however, it is not purely left to national law to determine the rules on acquisition and loss of citizenship, as the national law must be subject to mutual recognition by the other Member States. For this reason, in order for Malta to put its citizenship up for sale, it had to receive authorisation from the European Commission. And on 29 January 2014, the two negotiating parties came to an agreement on the rules: before an interested third party can acquire Maltese citizenship, bringing with it European citizenship, they must be resident in Malta for 12 months, starting when they purchase or rent a property. The agreement also abolished the quota set by the Maltese government of 1,800 applications under the original scheme; anyone who fulfills the residence condition can now obtain citizenship. The outcome of this agreement between the EC and a Member State putting its citizenship up for sale is that European citizenship is now for sale, and the EC will not intervene to prevent similar schemes being established in other Member States.

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The other, equally interesting, by-product of the rules on acquisition of European citizenship is that it reinforces the concept of national citizenship, and, thus the nation-state itself. This in turn will make it difficult for regions with EU Member States to exercise the right to self-determination; a situation currently playing itself out in Scotland. More on this particular topic to follow in the next edition of Obiter Dicta.

There was a young German named Akyuz who wanted a licence for vehicles, but it appeared to his State that his temperamental state wasn’t fitted and so they refused him… What would you do if you were in his position and citizen of the European Union? Well Mr Akyuz moved to the Czech Republic where the ‘strong aggressive tendencies’ which had led to the licence refusal in his home state of Germany, didn’t appear to be an issue. With his newly issue Czech driving licence he returned to Germany where he was convicted of two counts of driving without a licence. In his appeal against conviction he argued that Germany was obliged to recognise the Czech driving licence. The issue was referred to the Court of Justice (Akyusz C467/10) which ruled that the Germans were precluded from refusing to recognise a driving licence lawfully (there being a question as to whether Mr Akyuz had satisfied the residence requirements in the Czech Republic ) issued in another Member State territory….. Another victory for EU citizens and Free Movement…..

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Is it possible to create an efficient global system of enforcement of judgments on the base of success of enforcement of awards? Marta Ilnicka BLC Student, Warsaw Centre Arbitration proceedings are often considered as a fair alternative to judicial trials since, given the enforceability of final awards, they are clearly distinguished from other methods of alternative dispute resolution. The enforceability of awards is ensured via national instruments founded on the imperium of the State. This is a particularly interesting construction, since it requires a State to participate in the execution of decisions made outside the jurisdiction of its own courts. Moreover, enforcing an award often transpired to be simpler and faster than recognizing a decision handed down by foreign courts. As Professor Nussbaum has warned: â&#x20AC;&#x2DC;it will be admitted that the increase of arbitration might endanger state jurisdiction and the high ideals of impartial justice, if legislative and judicial measures for the remedy of abuse were not provided'. So is there any way for the State to protect its proper jurisdiction from relinquishing its power as regards arbitration? What measures should be taken to prevent this from happening?

As certain national authorities begin to notice the inefficiency of their courts in the field of international judicial cooperation, they attempt to simplify their procedures and to embrace cooperation. In several regions we can observe significant competition between national courts, seeking to reinforce their collaboration at an international level, and arbitrators who are trying to maintain their reputation as the more efficient form of dispute resolution. An analysis of this problem should begin by looking at the strongest example of multilateral cooperation between states in international judicial enforcement - the European Union.

The process of unifying enforcement procedures within the European Union

One of the main points of developing and enforcing cooperation within the EU is to achieve the goal of creating an area of freedom, security and justice. The European Union has undertaken multiple actions to ensure smooth cooperation between the national courts of its Member States. As one of OBITER

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the main points in realizing these goals, in December 2000 the Council of European Union adopted a Regulation which was, unfortunately, shortly afterwards criticized for providing insufficient results in speeding-up the process of cross-border judicial enforcement. The widely discussed disadvantages of the obligation to apply an exequatur (a separate proceeding which needed to be introduced to the court of the place of enforcement in order for a decision issued by another Member Stateâ&#x20AC;&#x2122;s tribunal to be executed) forced the EUâ&#x20AC;&#x2122;s institutions to continue facilitating the process of execution and enforcement. For this reason, in order to limit the delays and expenses entailed by exequatur, the European Parliament and the European Council passed

Regulation

805/2004 which created the European Enforcement Order (hereinafter: EEO)

The EEO allows a party to demand, at the time of receiving a judgment, the right to impose an EEO Certificate, permitting a party to require direct execution for uncontested claims. This is without any further action being required and simply by applying the relevant national enforcement institution of the country in which enforcement is sought. The only requirement is that the minimum standards contained in the Regulation are met.

The EEO has been designed to speed

the

process

enforcement and to increase the free circulation of judgments. It is a right of the wining party to choose whether or not they wish to utilize a standard recognition process or an EEO.

However,

the

Regulation

which created the EEO is more

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restrictive in the scope of any actions which the authorities of the other, executing Member State can undertake.

On the basis of an EEO, assuming that the requisite minimum standards have been fulfilled, the national institutions of the Member State in which the winning party demands recognition and enforcement, is obliged to proceed without any need for a declaration of enforceability and without any possibility to oppose such recognition. Although the General Regulation on jurisdiction provides a right for each party to appeal against the decision on the application for a declaration of enforceability, neither the application of this measure, nor the European Enforceability Order permit a review of the case as to its substance.

The importance of differences in enforcement Despite all of the attempts made by the European Union, arbitral awards have two major advantages over the EEO. Firstly, it is apparent that the European Union is still seeking to foster cooperation within a limited geographical area and that international enforcement is beyond its grasp. The New York Convention makes it easier to enforce arbitral awards on a global scale, across almost 150 signatory states. Clearly, the scope of recognition and enforcement of an arbitral award overshadows the number of bilateral and multilateral agreements which allow for judicial cooperation between states on an ad hoc basis. 19

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Furthermore, another argument which is often raised in favor of arbitration proceedings is the scope of enforcement. Execution of judgments is usually limited to the scope of decisions concerning strictly pecuniary matters. There is also a visible reluctance in courts to enforce multiple or punitive damages. Non-pecuniary decisions obtained in another country must be enforced by issuing fresh proceedings. Arbitration rules do not limit the nature of the award, so it should be understood that there is also a possibility to demand enforcement on a debtorâ&#x20AC;&#x2122;s non-monetary assets, which can also help to speed up the process of execution.

So the question is: would it be possible to create an efficient system of judicial cooperation similar to that created and applicable within the European Union in order to enforce and recognize judgments on a global scale?

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system

enforcement

judgments?

What are the obstacles to creating a system of enforcement similar to that created by the New York Convention?

To answer this question, we should focus on the differences in proceedings between arbitration and court-based trials which resist the unification process. The two most important of these are the independence of a judge and the applicable law.

Arbitration proceedings are usually conducted by experts in the field relating to the subject of the case. Arbitrators in their proceedings have a high degree of flexibility, since they are chosen by the parties and bound (if that is the case) only by the rules of an politically independent organization (such as the International Chamber of Commerce, the London Court of International Arbitration etc.). However, even those rules are more concerned with the technical and procedural aspects of the case and do not impose restrictions on the substance of law which should be applied. Accordingly, this creates a general expectation that the decision will be just and handed down without any bias or prejudice towards any party, which is an argument often used against typical court proceedings.

Conversely, a judge is a public officer who holds State power. This is particularly important in a private law case when one of the parties is the State (which is, in fact, excluded from the scope of the EEOâ&#x20AC;&#x2122;s applicability). Expecting an independent decision from a court is definitely more questionable in such cases than in the case of arbitration and, as we can imagine, it gives rise to doubts when enforcing decisions made by other country's authorities.

Moreover, arbitral awards themselves can also be delivered on a very flexible ground of law, depending upon what kind of applicable law the parties will choose. This would be impossible with 21

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court judgments. Courts in different parts of the world have different levels of flexibility in applying law: there are some parts of the world in which the judge can theoretically create law (common law system), whereas other systems see the judge as being the mouth of law (mainly in continental system, where a strong division exists between the legislative and the judicial power, with each being unable to interfere with the competences of the other). These issues raise general questions regarding the sovereignty of the State. Demanding that countries enforce decisions made by the court of another state (i.e. a national institution of the other country) and requiring the enforcement of external laws is deeply problematic, both political and legally.

The

reason

why

such

cooperation is possible within the European Union is that all of its Member States are obliged to make an effort to harmonize their legal systems in the scope required by the EUâ&#x20AC;&#x2122;s institutions, and even within those advantages, the European Union still limits the scope of such cooperation. We also cannot forget that Europe, although diversified, essentially shares the same legal foundations, based on its common history. For every country in Europe, there are many rules which are obvious in their applicability, such as basic human rights. Again, given the diversification between the mentality of peoples around the world, their legal cultures and traditions, creating a common judicial ground seems impossible.

Bearing in mind the arguments for and against the resort to arbitration as an alternative to judicial systems at an international level and the importance of enforcement, we could paraphrase Herbert Hoover by asking the question; is it fair for the parties to be financing the system of justice caused by the inefficiency of their national instruments?

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Nazi Art: The Gurlitt Hoard – the recovery of 1,400 items of stolen Nazi art by the German authorities in Munich, estimated to be worth around €1bn – has once again brought to light the legal issues inherent in recovering art stolen by the Nazis during WWII. Under the EU private international law regime, anyone who wants to claim any of these works will likely have to do so in a German court, applying German law. For the German museums that wish to reclaim art confiscated by the Nazis, they will have an obstacle in the form of the Forfeiture Act 1938, which legally authorized the Nazis to expropriate art without compensation, and which fantastically has not been repealed. For families that seek the return of stolen art, the problems are two-fold. The first is the limitation period of 30 years on all recovery claims, and the second is the German version of the defence of bona fide purchaser for value without notice (BFPFVWN), which holds that the acquisition of stolen works in good faith will prohibit the return of the stolen work. Do you know about the law in this area and would like to write more about it for the next edition of OD?

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In this section contributors are given the opportunity to write about UK-related issues. The current edition contains articles covering individual intellectual property judgments, sharia courts and the status of pre-contractual liability.

ENGLISH LAW ISSUES

The IP Empire Strikes Back Dr Steve Terrett Deputy Director, British Law Centres

In recent years, large-scale copyright owners (such as Hollywood-based filmmakers or music production companies) have sought to meet the challenges and threats posed to their IP rights by internet users. The internet clearly facilitates the swapping and sharing of IP-protected materials, including songs and films, and many IP-owners have mounted high-profile legal challenges against internet web-sites which expedite such file sharing. The first real examples of this were seen in America against music-sharing websites such as Audiogalaxy and Napster, both of which close down following

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court injunctions having been awarded against them. More recent examples include the closure of IsoHunt, TorrentSpy, ShareReactor, LokiTorrent, OiNK's Pink Palace, Foxy (P2P), MegaUpload, BtJunkie and others. Ongoing cases still remain to be resolved against PirateBay, BitTorrent, Direct Connect and eDonkey, and against many other operators who have simply moved the location of their web-sites to places outside the US and Europe (such as IsoHunt, which now operates out of Togo). Equally, copyright infringement claims have been brought against thousands of individuals directly, such as those brought by the Recording Industry Association of America (RIAA) which, as of 2006, had sued more than 20,000 people in the United States suspected of distributing copyrighted works.

Nevertheless, until now such claims have (for sensible reasons) focused on suing hose responsible for creating Peer-2-Peer websites such as those mentioned above or very high-profile internet users whose distribution of copyright-protected works reaches into the hundreds of thousands of instances. For those who are less “dedicated” to breaching copyright and who do so on a small-scale, the fear of prosecution or civil action has been a remote

one.

Equally,

the

increasingly

widespread use of “streaming” software, such as YouTube, Vimeo, MetaCafe, Hulu or Veoh, has led many to believe that they are safe from even the vague potential of being sued for copyright breaches. When “streaming” materials

via

such

programs,

the

file 25

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information is “streamed” to the user’s computer without the user having downloaded a full hard copy of the relevant materials. For many, this led them to believe that, although the web-sites from which the user was viewing the materials may themselves be in breach of copyright,

may

those

who

uploaded the materials, the viewing or listening user would not be in breach, since no “copy” had been made, just as a person who reads a pirated copy of a protected book or views a forgery of a protected painting commits no infringement although the person who sold him the book or forged the painting may do. However, a case which remains pending before the UK’s Supreme Court and which awaits a ruling on a preliminary reference sent by that court to the Court of Justice of the EU, questions whether such a perception is legally correct.

From a technical perspective, a computer makes a number of temporary copies off material which it receives in the course of transmission from internet routers and proxy servers, such as those inevitable “copies” of the material which are necessary to allow a web-page to be viewed on a computer screen (or heard via speakers) and those made in the internet "cache" memory on the computer hard disk. It would be possible to design browsing software without an internet cache, but in the present state of technology the result would be that the internet would be unable to cope with current volumes of traffic and would not function properly. The cache may be deliberately cleared by the end-user, but otherwise it will in the ordinary course be overwritten by other material after an interval which will depend on its capacity (which may be modified by altering the browser settings on the computer) and on the volume and timing of the end-user's internet usage. Yet the common feature of users who view copyright-protected material in this manner is that they do not seek to make a copy of the copyright 26

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material (unless they download it or print it out) but rather to view or listen to the material – the copies temporarily retained on the screen or the internet cache are merely the incidental consequence of having used a computer to do so.

From a legal perspective, the Supreme Court of the UK was asked in the case of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd & OR's *2013+ UKSC 18 whether or not such temporary “copying” onto a user’s computer amounts to breach of copyright. The relevant facts of the case were that Meltwater, a media monitoring organisation (MMO), supplied aggregated news content consisting of headlines and extracts from newspaper websites (the content of which was based on certain search words provided to Meltwater by its clients) to “end-user” clients who were public relations professionals (represented by the PRCA). These reports include a hyperlink to the article on the news publisher’s website, the article headline and an extract from the article of 256 characters in length. The results were provided to end-user clients (a) by email and (b) on Meltwater’s website (having logged-in to a fee-based user account). The defendant (NLA) manages the IP rights of its newspaper publisher members. In 2009, following a consultation with the MMO industry, the NLA introduced a new licensing scheme for MMOs and their clients, the end-user, to make commercial use of content published on its members’ websites. The scheme included a Web Database Licence (WDL) 27

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directed at the MMO and a Wed End User Licence (WEUL) for the end-users. The original claim, brought by NLA, alleged that the members of the PRCA had infringed copyright in the various newspaper articles even by viewing the copyright-protected material on Meltwater’s web-page, since they did not possess the relevant license to do so. The appeal issue before the Supreme Court was whether or not the end-user could rely on the ‘temporary copies’ exception in the UK’s Copyright, Designs and Patents Act 1988 to view material on Meltwater’s website. Both the trial judge, Proudman J and the Court of Appeal had ruled that the exception did not apply in such circumstances and that, accordingly, such temporary “copying” of the copyright material (i.e. by the end-user, in the cache memory of their computer) did amount to an unlawful infringement of copyright.

Since copyright has been the subject of an increasing amount of legislation arising from the EU, it was inevitable that the court would begin by looking at the requirements of EU law on this issue. Indeed, section 28A of the UK’s Copyright, Designs and Patents Act 1988 is (virtually) identical to Art 5.1 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and was, indeed,

specifically

enacted to implement that Article.

The

wording

that

Article states as follows: “Temporary

acts

reproduction… which are transient or incidental

Mark Twain: Only one thing is impossible for God: To find any sense in any copyright law on the planet.

*and+ an integral and 28

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essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.” Put simply, if a copying is (i) temporary; (ii) transient or incidental; (iii) an integral and essential part of a technological process; (iv) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter and; (v) the act has no independent economic significance, a user will not infringe an owner’s copyright. The Supreme Court then considered the CJEU’s case law on Directive 2001/29/EC - Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening ("Infopaq I"); Case C-403/08 Football Association Premier League Ltd v QC Leisure and Others; Case C-429/08 Karen Murphy v Media Protection Services Ltd ; and Case C-302/10 Infopaq International A/S v. Danske Dagblades Forening ("Infopaq II"). Although none of these cases deals explicitly or directly with the appeal issue before the Supreme Court, Lord Sumption, with whose judgment all of the remaining Supreme Court judges concurred, was satisfied that they provided sufficient guidance to allow him to conclude that the temporary copying of 29

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a copyright work which occurs when a computer user browses copyright-protected material (i.e. in the cache memory and on the computer screen) fulfilled the various criteria outlined above and that, accordingly, no infringement of copyright had taken place in the present case.

However, since the CJEU’s previous case law had not directly dealt with the question before the Supreme Court

and

since

this

issue

clearly

“…has

transnational dimension and… the application of copyright

law to internet

use

has

important

implications for many millions of people across the EU making use of what has become a basic technical facility”, it was decided to refer the question to the Court of Justice for a preliminary ruling, so as to enable a definitive judgment which will across uniformly across the European Union. We still await the CJEU’s judgment on this issue. Although the CJEU is nothing if not unpredictable, this author considers it highly likely that the Luxembourg court will endorse Lord Sumption’s analysis and conclusions (albeit without acknowledging this or making any direct reference thereto). The legal and economic implications which would ensure in the event that the alternative approach was taken are so drastic that it is difficult to imagine the CJEU even contemplating them. Internet users who, whilst reading an internet newspaper story condemning P2P file-sharing sites would, by virtue of their computer having created a temporary cache-memory “copy” of the story and any accompanying photographs, illustrations or videos would, ironically, be infringing the rights of the authors of such works (unless, of course, the author*s+ had granted their permission for making such a copy). However, for those of you who are now intending to click on movie or TV streaming sites such as those mentioned above, please be aware that Lord Sumption’s judgment in the PRCA Ltd v NLA & Ors *2013+ UKSC 18 case may not be automatically assumed to provide legal immunity for such actions. Firstly, of course, the CJEU may disagree with the analysis offered by Lord Sumption and supported by this 30

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author. Secondly, although the approach suggested by Lord Sumption would mean that end-users would not be infringe copyright when “streaming” copyright materials, they would infringe copyright by using any P2P software which downloads (or otherwise records or prints) such materials. PirateBay users beware! Thirdly, rather bizarrely, although Lord Sumption’s approach would relieve “streaming” end-users from civil liability, s.297 of the UK’s Copyright, Designs and Patents Act 1988 makes it a criminal offence to “…dishonestly receive a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme…”, so criminal liability remains a possibility. The perceptible tension between the internet’s capacity for facilitating business and innovation, on the one hand, and its potential for abuse in a copyright context, on the other hand, were explicitly noted by Lord Sumption, who stated that: “On the one hand the EU has traditionally afforded, as a matter of policy, a high level of protection for intellectual property rights, and the widespread use of these technologies was likely to facilitate piracy. On the other, it is clear that…an over-rigid application of copyright law devised for physical media of transmission or storage would retard the commercial development of the internet and other form of electronic media technology.” Where the line will, or should, be drawn between these competing interests is the subject of considerable debate, expensive litigation and a substantial degree of uncertainty. One thing does appear certain, however. The ongoing battle between copyright owners and those who wish to provide or access copyright-protected materials via the internet will continue to rage. Perhaps, as Mark Twain said, “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” 31

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Let the judges sue the politicians for the tort of ‘scandalising the court’! Oh what a glorious thing to see; another relic from ancient UK law which had been thought obsolete but which attempted a brief and unsuccessful comeback last year… the tort of scandalising the court... What exactly is required for this tort? According to Lord Russell CJ in 1900, it is ‘any act done or in writing and published which is calculated to bring a court or a judge of the court into contempt or to lower his authority and so to be contempt of court’. It was even thought to be a strict liability tort so that it wasn’t even necessary to prove that the respondent had an intention of undermining public confidence in the administration of justice. Were there any defences? - Apparently only two, namely 

that the criticism was reasonable or



that it was ‘within the limits of reasonable courtesy and good faith’

How outlandish then for a UK politician to find himself in the dock for contempt of court based upon this tort in the 21st century. It does seem to be in breach of recognised human rights such as freedom of speech, freedom of expression. This was also the view of the Law Commission whose recommendation led to the tort being formally abolished in 2013… ! So yet another colourful UK legal curiosity bites the dust!

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Tale of a Valentine ménage à trois: Lord Neuberger between the Broadsheets (or, for the pedants: a Broadsheet and a Berliner) Will Odogwu PhD Candidate, SOAS, University of London and former BLC Tutor

For those OD readers who are not intimately familiar with the formatting options popular with UK newspaper publishers, the headline reference is to the conservative rugby-and-Church-of-Englandloving Telegraph (broadsheet) and the not-really-so -left-wing,

tree-hugging

Guardian

(the

cosmopolitan fashionista of UK newspapers which ditched the broadsheet format several years ago in favour of the compact Berliner). As for Lord Neuberger, I am hoping that for the British Law Centre’s diploma students his name requires no introduction. In case this is an overly optimistic assumption, I will end the suspense and identify him as the president of the United Kingdom’s Supreme Court. However, at this point I fear that the device of double entendre is not entirely becoming of the serious nature of our present concern. We are dealing with that eternal preoccupation which may finally have its moment: British Euroscepticism. Two nights before Valentine’s, on the night of the 2014 edition of the Annual Cambridge Freshfields Law Lecture, a select audience was treated to a magisterial survey of the foundations of the contemporary English zeitgeist. In a speech that cast an eye across no less than nine centuries of history and swept its continent-encompassing gaze from the steppes of Russia to the Scottish highlands, Lord Neuberger attempted to diagnose this particular ill—this Euro-allergy—that pains our polity. More specifically, his speech sought to analyse Britain’s attitude towards the supra-national European courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

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The present author is confessedly ill-equipped to engage in a detailed critique of a speech which holds forth on so large a stage. But if the reader will bear with me, I would like to tentatively appraise how the media—as represented by those supposed ideological opponents, the Guardian and the Telegraph—acquitted itself in covering the great judge’s speech. From this we may hopefully arrive at some small insight into the breadth and quality of the public debate on European judicial institutions in the UK. The Broadsheet and the Berliner: Still Strange Bedfellows? What can be noted immediately is that each paper published only a modestly-proportioned article on the speech, with the Guardian’s piece amounting to around 700 words and the Telegraph’s 900. Both newspapers focused heavily on one particular issue discussed by Neuberger. The nature of that issue— the ability of the ECtHR and CJEU to de facto (albeit not de jure) overrule the UK parliament—will not surprise anyone familiar with the nature of the UK’s constitutional arrangements. But even on this issue, repeatedly emphasised in both articles, differences in the coverage begin to emerge. A Neuberger quote on this issue which was a favourite with both publications was the view that the idea of the European courts being able to overrule the UK parliament was “little short of offensive to our notions of constitutional propriety.” This quote was prominently and repeatedly featured in both 34

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pieces. However, the Guardian alone introduced a subtler note struck by Lord Neuberger on this question: that most countries took the view that there may be times when it is desirable, in the interests of the maintenance of the rule of law, “that independent judges, who do not need to court short-term popularity or worry about re-election, should be able to act as a control on what would otherwise be an unbridled legislature.” It appeared that The Telegraph’s correspondent was not impressed with these notes of caution and qualification. Accordingly, the view to emerge in the latter’s coverage is that the UK’s constitutional arrangements, as they existed prior to the developments epitomised by the 1972 EC Act and the 1998 Human Rights Act, did not present any cause for concern. Despite this difference, neither paper felt the need to mention Neuberger’s reference to an

“academic” debate, “sputtering away” for the past thirty years, as to whether the common law may sanction, “in extreme circumstances,” the overruling of parliament by the courts (reference was made in particular to R (Jackson) v Her Majesty’s Attorney General *2006+ 1 AC 262). Perhaps this omission is unsurprising given the language Neuberger used, which suggests he views the debate as largely irrelevant in light of European developments. Nevertheless, wider circulation of such comments would help to forestall illusions of a settlement between courts and parliament that is somehow outside of history and immune to change. Although both newspapers alluded to Neuberger’s remarks regarding the “fragility of the rule of law” or “threats” to its continued vitality, for The Telegraph these were solely threats which concerned other European polities; these hazards formed the context which allowed the god-fearing Briton to understand why his less fortunate continental European brethren might be more willing to sacrifice elements of their national sovereignty in favour of supranational oversight. To be fair to the Telegraph,

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a passage in Lord Neuberger’s speech lent itself to

such

use.

However,

unmistakable

complacency.

his the

Neuberger

admonitions clearest

was

against comment

addressing such myopic self-satisfaction, he made reference to the danger created by the fact that much of the British public was “almost blithely unconcerned about internal and external threats to the rule of law,” a comment which was seized upon in the Guardian coverage. Indeed, in this connection the Guardian was able to trumpet the nod given by Neuberger toward its man-of-the-hour, Edward Snowden: “there is no truer statement than that eternal vigilance is the price of liberty (although in the light of the recent revelations of Mr Edward Snowden, some might say that preventing eternal vigilance is the price of liberty).” From here we can pass on to the collection of issues which perhaps saw the widest divergence in the coverage. In his speech, Neuberger devoted a rather lengthy passage to a trio of interrelated observations about the UK’s history. These can be summed up as: ‘un-invaded since 1066,’ ‘free of revolution since the 17th century,’ and ‘once the world’s preeminent power.’ It would be fair to say that neither the Guardian nor the Telegraph gave a balanced impression of the importance of this passage to Neuberger’s speech. Whereas the Guardian came very close to avoiding any reference to this theme at all, the Telegraph harped on endlessly about Britain’s historic impregnability and imperial greatness. For the Guardian, the note of fiercest pride came in relation to Neuberger’s references to Britain’s position at the “forefront of liberty” since the 17 th century and to the fact that the English and Welsh in executing their king anticipated the French by a span of 140 years. It is the coverage on this collection of issues which clearly indicates that, despite flirtations of each with the political centre, these two newspapers still represent widely divergent political and sentimental visions of Britain.

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This disparity of world-views, or views of Britain in the world, is further manifested when commentary turns to those aspects of Lord Neuberger’s speech that sought to emphasise the debts owed by the English common law to the influences emanating from continental legal systems, not to mention the receptiveness which certain European institutions have shown to English legal ideas. Well… The Telegraph’s commentary does not take that turn at all. Also, the Guardian is the only place one will find mention of those parts of the speech where Lord Neuberger notes the powerful, future-oriented lines of argument open to either side in the debate, including one in particular available to those of more Europhilic temperament. This camp finds itself emitting the clarion cry that “the seismic shifts in the world political order, and in the mobility of ideas, individuals, information, and assets, require much greater engagement with Europe.” But all this comparison leaves an important question remaining: is it possible to tentatively suggest that one of these newspapers covered the speech in a manner that was “objectively” better than the other? Well, if one’s preferred criterion is accuracy, then that honour would probably have to go to the Guardian. Why? Despite its somewhat shorter length, the Guardian’s piece covered some crucial features of Lord Neuberger’s speech that went utterly without comment in the Telegraph. The first of these is clearly important to anyone concerned with the fair and accurate reporting of events whilst the other is of special interest to lawyers. As to the first feature, nowhere in the Telegraph’s coverage was Neuberger’s intended remit discussed or noted. In contrast, the Guardian writer brought this to the reader’s attention near the head of the piece: “In a speech examining resentment of continental interference, the president of the supreme court … suggested historical reasons explained why there was so much antagonism towards judges at the European court of human rights...” When scrutinised from a perspective aspiring to neutrality, even this description leaves something to be desired; most especially the reference to “interference.” To designate the actions of the ECtHR or CJEU by such an appellation seems incautious as it functions to obscure the fact that Neuberger surely sought to address the reasons why the role of these courts in 37

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UK public life was perceived by a resentful public as interference rather than legitimate intervention. However this may be, it does not alter the fact that not even this much context was provided by the Telegraph’s correspondent. What is more, the Guardian’s

piece

noted

that

Neuberger

expressly distanced himself from taking sides on the issue. This important fact was wholly omitted from the Telegraph’s coverage. Nevertheless,

the

Telegraph

did

report

Neuberger’s observation that UK judges needed to “tread very warily” in discussing debates about the UK’s membership of European institutions; an observation which prefaced his statement of avowed neutrality. Given that the Telegraph omitted this latter nugget of information, this gave the three small words—“tread very warily”—a rather conspiratorial flavour that they lacked when encountered in their original context. So what about the feature of the Guardian’s coverage of special interest to lawyers? This concerned the reflective question of whether and in what circumstances it is appropriate for senior UK judges to speak out on issues surrounded by intense public debate. The Guardian’s correspondent rightly observed that Lord Neuberger attempted to segregate “political debates” in general from a class of such debates that “relate to the legal system or the rule of law.” On the former it would not normally be right for judges to take a “public position,” but in relation to the latter the judiciary’s “unique experience and authority” would sometimes entail a “positive duty to speak out.” Indeed, Neuberger continued “*b+y the same token, it is part of our function to explain the legal implications of any important issues being publicly debated.” The Guardian’s correspondent speculated whether these remarks may amount to a “novel constitutional precedent.” As it turns out, there was no immediate need to elaborate the impossible 38

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distinction between public debates that do impinge upon the legal system or the rule of law and those that do not (can a category of the latter sort be so much as imagined outside the pages of Hello! magazine? Hold on… maybe we should consult Michael Douglas and Catherine Zeta-Jones). It seems instead reasonable to view Lord Neuberger—within his own newly-minted system of classification—as addressing the “legal implications” of “important issues being publicly debated.” One wonders how clear such “implications” could be, even for a president of the UK Supreme Court. After musing on a decades-long cultural shift embodied in Great Britain’s uncharacteristically professional and emotionally effusive 2012 Olympic team, Neuberger seems to agree as he reaches his closing remarks. Perhaps unsurprisingly, these sober thoughts escaped comment in both the Broadsheet and the Berliner: “Whether this change in English culture is to be welcomed or regretted is a matter of opinion. Whatever their view, I expect that most people would agree that it was inevitable. So, too, whatever the outcome of the present debate on Britain’s future in Europe, I suspect that future historians will conclude that that outcome was inevitable, and will give convincing reasons for it. It’s so easy when you know the answer, or as Niels Bohr would no doubt have agreed, prediction is very easy, especially when it’s about the past.”

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Supreme Court Update Congratulations to …

The BLC is very pleased to see that the chairman of the members of our founding charity, Juris Angliae Scientia Ltd, was appointed a member of this august body in 2013. Many congratulations to him for this highly deserved appointment. Separation of Powers - Domain names A true conundrum thought Lord Hope back in 2005, if a newly founded UK Supreme Court would be asked to share the same domain name as the UK government… It would hardly be demonstrating the court’s separation and independent position from the UK government, which had surely been one of the primary reasons for restructuring and relocation of the Highest United Kingdom Court from the House of Lords to create a new independent entity and a different Guildhall address! And why was a new domain name impossible? Well apparently it was due to cost, or that was what Lord Hope was told by his advisors with figures quoted in the region of £125,000. In fact when the Supreme Court finally got its way, with a new domain name of supremecourt.uk finally launched on 6th January 2014, how much did it cost? The grand sum of £500! We’ll leave the morals to learn of placing too great a reliance upon advisors up to our readers.

Live Justice Yes, you can add the court to the many sites which has a youtube link. In order to encourage greater transparency and awareness of its activities, personalities and judgments it is now possible to watch members of the Supreme Court in action http:// news.sky.com/info/supreme-court as well as to check out some of its recent judgments at http:// www.youtube.com/uksupreme.court.

OBITER

DICTA

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Sharia courts in the UK: is legal pluralism nothing more than a necessary political fiction? Cerian Griffiths BLC tutor

In 2008, the then Archbishop of Canterbury, Rowan Williams, gave a speech in which he argued that to maintain support for legal authority in the UK, English law should allow for parallel systems of courts drawing from other sources of law, namely religious law. Dr Williams was speaking specifically of Muslim courts, Sharia courts, and he was postulating that it may be positive for the English law and for English justice in general, to facilitate for a more pluralist legal system in which people can choose which law they wish to comply with, religious or English. Dr Williamsâ&#x20AC;&#x2122; speech received a great deal of criticism, mostly unjustified, and this paper is seeking to use Dr Williamsâ&#x20AC;&#x2122; suggestions as a basis from which to critique whether a pluralist court system is possible, or in fact desirable, in the area of family law. By considering predominately Sharia Councils (courts) it shall be demonstrated that in reality, such a parallel system is unable to formally function. By considering evidence of the practical behaviour and functioning of Sharia courts, it is apparent that such Councils are wildly over-stepping their jurisdiction within family matters and are heavily straying into criminal issues such as domestic abuse. It shall not be concluded that Sharia and Jewish courts 41

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should cease to function in other areas of English law as in many areas such as commercial law they function very well and play an important role in a rightly expanding multicultural Britain. However, what shall be proposed is a far more heavily regulated religious family tribunal which no longer undermines and threatens the criminal jurisdiction of English courts. Cultural identity is rapidly shifting in the face of ever growing globalisation. Identity is moving away from a pre-occupation with the nation, and toward a more nuanced and multifaceted understanding of the individual, including religious and cultural considerations. In the face of distrust and growing racial/ religious suspicion, a new multiculturalism has emerged, one in which individuals are increasingly anxious to assert their own cultures and increasingly, their own laws. A result of this is that the law in

many countries is not being universally accepted as being the authority by which people resolve issues. Whilst ostensibly obeying the law of the land, minority groups are increasingly turning to unofficial or alternative methods of dispute resolution which is leading to the practical fragmentation of the law. Subsequently, our foundation of legal positivism and belief that the law stems from the State is being undermined. This is particularly true in the UK in the area of family law. Sharia and the Criminal Law It is the area of family law which upsets the hopes for a pluralist legal system. It is here that we most

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clearly find the overlap between family and criminal law. Domestic abuse has, until fairly recently, often been seen as a matter of private rather than public law within the English system. This has greatly improved in recent years with police and prosecutors taking domestic seriously.

violence

far

However,

this

delineation between public and private family matters has been maintained by Muslim law to a large extent. However it should be noted that extreme violence is deemed

inappropriate

for

arbitration within Muslim law. English law recognises that there are public and private dimensions to family law but it is within this area of law that we see the most tension between religion, culture and tradition. For example in English law, there is a clear distinction between private child law, when the parents dispute child care or contact, and public child care, when the state intervenes for the protection or well-being of the child. This is also the case for marital-related issues in which divorce and ancillary relief are private matters whereas abusive and threatening behaviour between spouses is deemed criminal and therefore a public matter. Sharia law does not separate these issues into the private and public and Sharia law has a great deal of canon in all issues relating to the family. English Law and Domestic Abuse Non-molestation orders were introduced in 1996 and were designed to act as civil injunctions against abusive partners and ex-partners often stipulating conditions such as the abusive party having to remain a certain distance away from the victim. Whilst these were civil injunctions, the breaching of them, like any civil court order, could result in criminal prosecution for contempt of court.

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The purpose of these orders is to prevent abusive partners from further abusive behaviour, often at a time of divorce or of child custody proceedings. These proceedings can be on-going at the same time as divorce proceedings and subsequently, this is the clearest example of when private meets public law. Sharia Councils and Domestic Abuse The first concern raised by the use of private arbitration in the field of domestic violence is that it undermines the role of the state to prosecute offences which we, as a society,

find

abhorrent.

terms,

the

defines

those

particularly its

simplest

criminal acts

law which

society believes ought to be punished with the loss of liberty but also, with the public shaming of the defendant. Sharia Councils cannot achieve this as they do not have the power to forcibly detain offenders and their arbitration, by definition, is private. The second concern with using Sharia Councils for domestic violence is that, even if we do forsake the remedy of prison for domestic violence, there is a presumption in arbitration that both parties are consenting to the use of an arbitrator as opposed to seeking a remedy through the English courts. Currently there are no safeguards to ensure that parties are freely cooperating with a Sharia Council. Islam calls for arbitration in this field either through the teaching of the Quran, which relies heavily upon religious arbitration in this field. There are very strong arguments to suggest that many women who seek

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relief under the law due to domestic violence are put under pressure, both religious and from their communities, to conform to religious rather than English law. However, social and emotional pressure is not recognised as legal coercion in English law and subsequently, Sharia Councils could argue that it is perfectly legal to pressurize women into accepting the jurisdiction of Sharia. In the arbitration process itself, there are many accounts of women being made to accept that they are to blame for deserting their husbands even if they have been â&#x20AC;&#x2DC;chastisedâ&#x20AC;&#x2122; by them. This often leads to women feeling as though they are obliged to return to a violent relationship which puts them in danger. This is in direct conflict with the English criminal law in instances when a non-molestation order has been granted. A woman may be granted an injunction against an abusive husband in an English court but the Sharia Council will tell her that she has a duty to sit with her husband and discuss whether they can be reconciled. This often puts women into direct physical danger. Conclusion Legally and practically it is impossible for there to exist an entirely pluralistic system of courts and tribunals in the UK in the realm of family law. This is due to the overlapping issues which stray into the criminal law, the adjudication of which must remain within English law. This does not mean that alternative dispute resolution and parallel tribunals such as Sharâ&#x20AC;&#x2122;ia courts cannot exist at all, but if they are to be a viable and fair form of arbitration, there must be a clear delineation between private and public areas of law such as marital breakdown and domestic violence. Moreover, this system must be regulated and enforced by national legal mechanisms and not left to the discretion of local religious leaders.

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Hot off the press (and this one should interest all current BLC second year students about to embark on the Intellectual Property module): there is now a recognized tort of misuse of private information in English law! Those who have already taken the IP module will be aware of the delicacies of considering whether Lord Nichollâ&#x20AC;&#x2122;s judgment in Douglas v Hello established an independent tort distinct from the equitable remedy for breach of confidential information. Well now we know (sort of). On 16 January 2014 the High Court in Vidall-Hall v Google decided at paragraph 70 that such a tort exists, allowing for particulars of claim to be issued outside the jurisdiction against Google Inc for misusing the private data taken from the claimantâ&#x20AC;&#x2122;s Safari web browser. So while the tort of invasion of privacy remains unknown to English law, the tort of misuse of private information is now known. Breach of confidential information is still considered to be an equitable claim, however!

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Two approaches to pre-contractual liability Karolina Lasowska Warsaw BLC Student

An increasing number of legal systems are adopting provisions to regulate pre-contractual relations between contracting parties. Preliminary agreements and negotiations enable parties to not only create a blueprint of the future contract which they might enter into, but also enable them to familiarise themselves with the expectations of the other party. For this reason, most continental legal systems have adopted a number of legal rules to regulate pre-contractual liability, in order to prevent a contracting party from being the victim of unfairness and exploitation during the pre-contractual stage. Whilst many legal systems refer to the German doctrine of â&#x20AC;&#x2DC;culpa in contrahendoâ&#x20AC;&#x2122;, common law systems, especially in England, reject the imposition of any pre-contractual obligations on parties. According to the freedom of contract doctrine, based on all-or-nothing approach, contracting parties should be entitled to pursue their own interests during negotiation without being obliged to later enter into the contract proper. 47

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The primary difference in this regard between Polish law and common law in England and Wales centers around the enforceability of pre-contractual obligations. Historically, Polish law contained no rules imposing pre-contractual duties onto parties, such as the duty to negotiate in good faith and in accordance with the principles of community life. This situation changed with the amendment of art. 72 § 2 of the Civil Code, which derives from the concept of ‘culpa in contrahendo’ established by

Rudolf von Ihering in 1861. Pursuant to art. 72 § 2 of the Civil Code, any party who conducts negotiations in contravention in bad faith, in particular by lacking the requisite intention to ultimately enter into the contract proper, is obliged to redress any damage caused thereby to the other party who assumed that the contract would be concluded. The concept of culpa in contrahendo does not exist in the common law. Judges in England and Wales do not recognize the significance of preliminary agreements and pre-contractual obligations, preferring instead to adhere to the principle of freedom of contract, where the contracting parties should not be limited by any restrictions. However, despite the absence of distinct regulations regarding pre-contractual liability, the UK’s judges have begun to

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erode this general rule and to create certain limited exceptions. In Walford v Miles *1992+ 1 All ER 453, the court established a new type of preliminary instrument, capable of imposing pre-contractual duties on the parties, knows as â&#x20AC;&#x2DC;lock-out agreementsâ&#x20AC;&#x2122;. Such agreements forbid the parties from negotiating with third parties for a certain period of time and would lead to the liability of any party acting in breach of such obligation. However, lock-out agreements are only capable of binding upon fulfillment of the following conditions: 1) the parties must agree that they will not negotiate with third parties, 2) they must determine a period of time for which such obligation will be enforceable and 3) there must be consideration for such promise. The absence of any of these elements will be fatal to the binding nature of the agreement. The construction of lock-out agreements differs from Polish lawâ&#x20AC;&#x2122;s conception of liability for negotiations in bad faith. Whilst fulfillment of the conditions for binding lock-out agreements raise no doubts, the precise delimitation of good or bad faith may lead to problems, since each judge might interpret these concepts differently. Apart from lock-out agreements, the common law sometimes allows pre-contractual liability via the doctrine of promissory estoppel, first deployed in Hughes v Metropolitan Railway Co (1876-77) LR 2 App Cas 439 by Denning MR. However, promissory estoppel can enforce binding promise only if the following conditions are fulfilled: 1) there is a pre-existing contractual relationship between the parties and 2) one party makes a further promise, not to enforce their rights under such pre-existing contract, which is unsupported by consideration, and 3) the second party relies on that promise and acts on it, and 4) the court

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considers that the behaviour of the promisor is such that he should not be allowed to renege on his promise.

The

concept

promissory

estoppel

substitutes the element of consideration, which is obligatory for contracts to be binding.

Another essential difference between Polish law and English law concerns their different approaches to the freedom of contract in relation to pre-contractual liability. The traditional approach established in common law countries is that the contracting parties should have the freedom to decide if they wish to enter into a contract or not, without any obligation existing for them to do so. The adoption of regulations which may bind the parties during preliminary agreements and create pre-contractual liability would restrict the English contract law doctrine of the freedom of contract. Unlike the common law, Polish law and most continental legal systems have adopted a different approach, which does not consider the creation of pre-contractual liability as a violation of the freedom of contract, but merely aims to ensure the reliability of commercial turnover and to protect against unfair practices used during negotiations. Pre-contractual agreements are not dangerous in themselves. Their form and content depends entirely upon the partiesâ&#x20AC;&#x2122; intentions. Therefore, pre-contractual instruments may give rise to risk only if the contracting parties decide to make them devious by acting in bad faith during the negotiations phase.

In conclusion, despite English lawâ&#x20AC;&#x2122;s modification of its general rule, via the mechanisms of promissory estoppel and lock-out agreements, the common law is still far from adopting any generally binding rules regarding preliminary agreements or any duties capable of imposing liability on breaching parties for having conducted negotiations in bad faith. The diversity of legal regulations and solutions regarding pre-contractual liability may sometimes give rise to risk for contracting parties, such as binding and non-binding duties imposed on parties during negotiation (in particular in international commercial transactions). Whereas, within continental legal systems, the parties must obey their precontractual duties, under the common law the same party is not bound by any pre-contractual liability. For that reason, it may be advantageous to establish a uniform regulation of contract law, which would level the differences between the various legal systems. 50

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Scientology: when is a church a Church? Cerian Griffiths BLC tutor

Two weeks before Christmas, the Supreme Court in the UK made the divisive decision in R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages *2013,+ to allow lawful marriages to be carried out at Scientology chapels across the UK. Traditionally there have been strict regulations in the UK as to where marriages can be conducted. Until 1994, legal marriages were only allowed to be conducted in certain approved premises which were either places of worship or registry offices. Following the Marriage Act 1994 however, the places at which marriages could be conducted were extended to include approved venues. Scientologists have always been allowed to be married but not in religious ceremonies within their own chapels. Instead, Scientologists have been able to marry civilly. Legally binding religious 51

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ceremonies can only be held in a ‘place of worship for religious meeting’ and Scientology chapels have historically be deemed not to fall within this definition. In 1970 a High Court decision was handed down by the late Lord Denning, in which it was ruled that places in which followers of Scientology met were not places of worship as to fall within the traditional meaning of such a building. Rather, it was ruled that for a building to be a place of worship, services must be held within it involving "reverence or veneration of God or of a supreme being". The belief system of Scientology does not contain a God per se or a supreme being and thus, it was ruled that Scientology services are not worship and the buildings themselves cannot be locations of marriages. The recent Supreme Court unanimously disagreed with this definition holding that the limited definition of religion requiring the worship of a supreme being was out of date and discriminatory. Such a definition is not only discriminatory to Scientology but also to more established religions such as Buddhism. All five of the judges hearing the case agreed that a Scientology chapel is a ‘place of worship for religious meeting’ and thus marriages can be carried out in them without requiring special permission under the 1994 Act. This is contentious however as religious buildings are exempt from paying higher levels of tax such as business rates. The reasoning behind this is that they are buildings open to the public and local authorities should allow for places of worship within their jurisdictions. However, Scientology chapels do not fall within this tax exemption as they are not buildings open to the public; only Scientologists may enter Scientology chapels. Subsequently, the Supreme Court ruling raises the practical problem that if Scientology chapels are places of worship for the purpose of marriage, does this also mean that they are places of worship for the purpose of tax avoidance. Local authorities may be negatively impacted if they have allowed a number of chapels of Scientology into their jurisdiction on the understanding that they would be paying business rates and which may now be exempt from such taxes. The Supreme Court Justices did not address this matter when handing down their judgment but it may only be a matter of time before a litigation between Scientology chapels and local authorities begins. 52

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Special interest section

This section contains articles on highly specialized topics that are of specific interest to contributors. The current edition contains articles on medical malpractice in Poland, energy transmission corridors and new rules on spatial planning in Bulgaria.

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Solving the problem of trafficking of human organs in Bulgarian criminal law Sylvia Petkova Sofia Centre Alumna

The worldwide phenomenon of trafficking in human organs and tissues is becoming increasingly widespread. In response to this, all countries require legislation to effectively restrain and prevent this phenomenon. Bulgaria is doing just that. According to the Bulgarian Ministry of Health, there is one

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donor per two million people and in 2013, 1024 people were in need of various organ transplants. The very few donors amongst the great amount of people in need of transplants is problematic, and leads to attempts to resolve the situation via the â&#x20AC;&#x153;black marketâ&#x20AC;? of human organs, enabling wealthy patients to simply buy the organs they need. The trade in human organs has become extremely lucrative, despite its illegality.

Under Bulgarian property law the human body does not constitute an object, but human organs are recognized as chattels following their removal from the body. Thus they become a suitable subject for civil contracts, but the Transplantation of Organs, Tissues and Cells Act explicitly states that human organs cannot be the subject of a contract for valuable consideration. Such prohibition means that organs can only be donated and such donation requires the consent of the donor. Consent is not enough by itself, since in order for the transplantation to be legal the requirements of the Transplantation of Organs, Tissues and Cells Act must also be respected.

Until the entry into force of amendments to the Bulgarian Criminal Code (CC), the sanctions for violation of the terms and conditions for the provision of human organs and the performing of transplants are governed in the Transplantation of Organs, Tissues and Cells Act. The aforementioned Act provides a fine of 20 000 to 40 000 lv. (approx. 10 000 to 20 000 EUR), for any person who offers a material benefit to a donor of organs, tissues or cells, and for a donor who accepts such material 54

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benefit. If an infringement is committed by a corporate entity, the relevant fine is 30 000 to 50 000 lv. (approx. 15 000 to 25 000 EUR). The import and export of human organs in violation of the aforementioned Act is punishable by a fine of 100 000 to 500 000 lv. (approx. 50 000 to 250 000 EUR) and by a fine of 750 000 to 2 000 000 lv. (approx. 375 000 to 1 000 000 EUR) if the violation is committed by a corporate entity. The fines laid down in that Act are, however, administrative and not criminal in nature and the difference between the two types of fines is expressed in the degree of state sanctioning of the offender. In administrative law, fines are much lower than those deployed in criminal law, where some of the most important human rights are restricted. Such rights, for example, include the freedom of movement, which is restricted by the criminal penalty â&#x20AC;&#x153;deprivation of libertyâ&#x20AC;?. Moreover, administrative sanctions, as opposed to criminal penalties, do not incorporate conviction and thus the rights of the violator do not suffer further restrictions. The administrative violations described in the aforementioned law make no provision for cases when organs are taken from a living donor without his consent and by the use of coercion. Until the entry into force of the amendments to the CC, the recruitment, transportation, hiding or acceptance of individuals or groups of people, accompanied with the removal of their organs should be deemed to constitute multiple crimes under Art. 142 CC (kidnapping, punishable by 3 to 10 years deprivation of liberty and by 7 to 15 years

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deprivation of liberty if the act was perpetrated with regard to two or more persons) and under Art. 128, CC (severe bodily injury, punishable by 3 to 10 years deprivation of liberty if the act was perpetrated with regard to two or more persons). If the severe bodily injury is followed by the victim’s death, the multiple crimes should be charged under Art. 142, CC (kidnapping) and Art. 122, CC (negligent homicide, punishable by up to 5 years deprivation of liberty). In this situation, the individualization of the punishment is complicated significantly due to the need for application of special rules for determining appropriate punishments in the event of multiple crimes (Section IV, General Part of CC). In view of the extremely high degree of public danger of the activities discussed above, concerning the trafficking of people and the dispossession of their organs, and in fulfillment of Bulgaria’s obligation to transpose Directive 2011/36/EU, the Bulgarian Parliament has criminalized the recruitment, transportation, hiding or acceptance of individuals or groups of people in view of using them for dispossession of a bodily organ, tissue, cell or bodily liquid. Such amendments do not suspend application of the provisions of the Transplantation of Organs, Tissues and Cells Act, which preserves its significance in relation to violations which are not criminal acts under the CC. This is because the general rules of Bulgarian law preclude the accumulation of criminal and administrative liability. Since criminal liability under Bulgarian law is personal, the Transplantation of Organs, Tissues and Cells Act shall be applied when, for example, a physician from a hospital admits an individual in view of dispossession of his organs without his consent. In this case, the physician shall be prosecuted under CC and the hospital shall pay a fine pursuant to the aforementioned Act.

The legal framework of trafficking of human organs, tissues, cells and bodily fluids is laid down in Art. 159a CC where, prior to its amendment, contained the basic legal elements of the crime “trafficking people”. The amendments preserve the features concerning the objective elements of the crime, as well as those features concerning the object and the offender, but there is a new element, concerning

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the mens rea of the offence, more specifically there is a new special purpose – dispossession of an organ, cell, tissue or bodily liquid. Thus, at present, under Bulgarian criminal law “An individual who recruits, transports, hides or admits individuals or groups of people in view of using them for sexual activities, forceful labour, dispossession of bodily organ, cell, tissue or bodily liquid or holding them in forceful subjection, regardless of their consent, shall be punished by deprivation of liberty by one to eight years and a fine of 3000 to 12 000 lv.” (approx. 1500 to 6000 EUR) (art. 159a, para. 1, CC). As regards “recruitment” and “transportation”, the Bulgarian Supreme Court of Cassation has passed an Interpretive decision №2 of year 2002 which maintains its importance following the amendments, introduced with issue number 84 of the State Gazette. Pursuant to this decision, on the one hand, “… recruitment occurs when the offender undertakes actions of searching, attracting, enrolling, negotiating, persuading the victim or supplying with a set of people to bring them into a position, which forms prerequisites for their future exploitation”. On the other hand,“transportation” exists “… not only when the victim is actually transported, but also when the offender carries out actions, necessary for its transportation”.

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Another addition is section 7 to Art. 159a, para. 2 CC, which regulates the more severely punishable composition of the crime “trafficking people”. This paragraph adds a new special offender – an “official”, who has committed the offence during, or in connection with, the performance of his duty or function. “During the performance of his duty or function” means that the act is committed at the time and place of its performance, while “in connection with the performance of his duty or function” means that the act is not committed at the time and place of its performance, but has an objective and subjective connection therewith. The point of this provision lies in the fact that, since the act is more socially dangerous when committed by an official during or in connection with the performance of his duty or function (e.g. a physician), the punishment should be more severe – deprivation of liberty from three to ten years and a fine of 10 000 to 20 000 lv. (approx. 5000 to 10 000 EUR). Amongst the other amendments introduced in Issue number 84 of 2013 of the State Gazette is Art. 116, para. 1 CC, which regulates the more severely punishable cases of homicide. A new section 8a adds another special purpose – when the homicide is committed in view of dispossession of bodily organ, tissue, cell or bodily liquid. In this case, if the victim is recruited, transported, hidden or admitted with the same view and simultaneously his death occurs due to dispossession of a bodily

When life means life… the UK quandary of proving compliance with a Strasbourg European Court finding of breach of ECHR No right of review of a life sentence for the most heinous convicted murderers in the UK, who had received life sentences with no rights to remission! When the European Court of Human Rights in Strasbourg found (in the case of Vintner from July 2013) that a life sentence without possibility of remission or review would potentially breach Article 3 of the ECHR as ‘inhuman or degrading treatment or punishment’, they saw the chance to challenge the right to impose this sentence, only to have their hopes dashed on 18th April2014 when the Court of Appeal found that UK law complied with Article 3, citing in support section 30 of the Crime (Sentences) Act 1997 which provides for ‘a possible exceptional release of whole life prisoners’ on compassionate grounds. Will the Strasbourg Court or Council of Europe agree though…???

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organ, the acts shall be constituted as multiple crimes under Art. 159a (trafficking of people) and under Art. 116 (homicide). A new section 8a of Art. 131, para. 1 CC regulates the matter of severe bodily injury. This section adds a new special purpose – when the bodily injury is caused in view of dispossession of bodily organ, tissue, cell or bodily liquid. In this case the offence is more severely punishable than the ordinary cases of bodily injury. When there is trafficking of people and bodily injury, inflicted by dispossession of bodily organ, tissue, cell or bodily liquid, the two offences shall constitute multiple crimes.

All things considered, these constitute small but very significant amendments which drastically alter Bulgarian law. This is because the explicit inclusion of the special purpose “dispossession of bodily organs, tissues or cells” as an aggravating element in the crimes of trafficking people, homicide and committing bodily injury is in compliance with the principle of the legitimacy of offences, according to which “no one may be sentenced for any action or inaction that was not legally categorized as a crime when it was committed” (art. 5, para. 3, Constitution of Republic of Bulgaria). The strict observation of this principle leads, on the one hand, to stronger guarantees for the citizens’ rights and, on the other hand, to a greater success in the investigation, qualification and punishment of these offences and, accordingly, to a greater level of general prevention.

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Land Law in Hungary: the current situation Ă rpĂĄd Gyuris BLC Budapest Alumnus

Introduction Since the so-called Reform Age (1825-1848) the legal situation of the land has been a central question in Hungary. During the early years of the 20th century the political rulers tried to gain the support of the masses several times by promising them the redistribution of the land. Parallel to the partial realization of these promises, political changes also meant the transformation of the large properties of rich Hungarian barons into modern agrarian enterprises. Immediately after the Second World War the influence of the left wing political parties grew dramatically, who tried to establish a system of privately owned small-size farms. This measure helped to create a more politically biased producer (farmer, agrarian worker class) class (socialists, communists), who finally were forced into collective societies, modeled after the soviet sovhoz and colhos (in the former of which the state was the owner, OBITER

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and in the latter the people owned the land collectively). After the political transformations in 1989, the question of land ownership rose again. The political class was not unified regarding the general concept. Importantly, the majority of the land in Hungary during the first years of the 1990s was owned by the state. Some of the political parties insisted that the state should give back the land to the original owners. The only question was which date should be chosen as the original time of ownership (e.g., before the end of the Second World War or after, or at the time of the first distribution of land in Hungary in 1945). Finally the parties agreed on paying compensations for any Hungarian citizen for whom the state had caused suffering during the 20th

century, such as Jewish people, those who were transported to concentration camps, noblemen or peasants who lost their properties, POW and everyone else who could prove they have suffered. Compensation consisted in distributing so-called â&#x20AC;&#x153;compensation notesâ&#x20AC;? for those concerned, which could be used, among other purposes, for buying land at the open auctions where state land funds were sold. This leads us to the current situation in Hungary. The current situation of Hungarian land ownership According to the current Hungarian Land Act (Act LV of 1994 on Arable Land) it is only natural persons with Hungarian citizenship who have the right to own land (except of course, the State, the Churches, 61

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the local governments and foundations), up to 300 hectares. Although this norm contradicts the basic four freedoms of the EU, it exists as a result of a request by the state at the time of joining the EU (2004), to receive a ten-year provisional period for the free regulation of the land. Naturally, this rule means that not only foreign natural persons but also legal persons cannot buy Hungarian land. The only way out is to lease land for farming: both natural persons

and

businesses

are

allowed to lease up to 2500 hectares of land, a size that allows to maintain a modern, potentially profitable farming enterprise. The Hungarian situation is quite difficult, since in the course of the compensation mentioned above a large number of people acquired land, and since then many think of buying land as a good means of investment. The property structure is quite unbalanced: more than 2 million of owners of 1-2 hectares of land coexist with large agricultural companies who cultivate several thousands of hectares of land. The quality of Hungarian agricultural land is outstanding in Europe. This also means that in Hungary agricultural production is done by big firms, on properties rented from natural persons. The new Land Law (Act CXXII of 2013 on the circulation of agricultural and forestry lands) According to the rules of the new Land Law, similarly to the current one, only natural persons can buy land freely in Hungary. There is, however, an important difference: whereas currently there are no distinctions between natural persons (except for country of citizenship), the new regulation wishes to support the acquisition and use of land by those whose overwhelmingly support themselves from agricultural activity. The reason for the restriction is that until now, a number of investors (lawyers, bankers, and businessman) have acquired large territories, in order to make large profits after the ban on the acquisition of land by foreigners is lifted and prices rise. According to the concept (of the new Land Law), the law maker can justify the support of the producers because it serves the interests of the state and the society that in general the land should be in possession of the real producers and not the 62

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inventors. The government mainly favours independent medium-sized farms, as opposed to either the tiny farms (economically not viable) or the giant Argentinian-style latifundums. A problematical issue in connection with land ownership in Hungary concerns the existence of the so called â&#x20AC;&#x2122;pocket contractsâ&#x20AC;&#x2122;. They refer to illegal contracts made between people of foreign citizenship (who are legally not allowed to buy land in Hungary) and Hungarian landowners: in exchange for money, the land is transferred into the property of the foreign citizen for all intents and purposes, except in the legal records, with the secret understanding that the change of ownership will be legalized as soon as the relevant laws allow. In the meantime, the agreement is masked as a lease contract. The government thinks that the pocket contracts can be fought with different methods, such as the new measures of the new land law, certain changes in the criminal act, by giving the state preference for buying land, or the right of dispossession of property, as well as with a special act against pocket contracts. According to the Accession Treaty, Hungary has the right to introduce a system where acquisition of land depends on the permission of authorities, either for a transition period or permanently. If somebody would like to buy a piece of land, she/he has to sent a brief about her/his intention purchase to the National Land Fund Managing Organization. In addition, the draft of the contract has to be hung at the headquarters of the local government. An additional requirement to be introduced in the new law will be that a local committee (consisting of local producers) can form an opinion

about

the

purchase.

Representatives of the agricultural chamber and local growers or producers would participate in the permission process. Permission to buy land would be withheld, for example, when the buyer is not a producer (or does not live regularly and mainly from the agricultural activity) - if the size of the property exceeds the limit and when the contract seems to circumvent restrictions on buying land. Permission could be withheld also when the land to be bought would lead to an unhealthy or unreasonable property structure, a certain unit of property would be divided, the price does not reflect the real value of the land, the acquisition would serve the purpose of piling up, or the property is too far from the permanent home of the buyer. 63

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E-mail spam: Comparativist approach on unsolicited communications regulations Paweł Baran BLC Warsaw Student Most legal systems have regulations governing unsolicited communications. In colloquial meaning it is called spam. It is worth quoting a brief history of the etymology of that word in Internet slang. It shall be a good starting point for further

considerations.

Everything

started in the 30’s of twentieth century, when the company “Hormel Foods” has decided to change the name of luncheon meat to something more attractive. The choice fell on “SPAM”. World War Two brought a further popularity of spam when it was the most common element of U.S. Army food rations. After war in 1970, spam has become a major topic of Monty Python sketch, where a customer tried to order something to eat, but the only thing he could get was a spam in every dish. Attempts to order something different ended as failure. The customer constantly heard repeating word “Spam”. It became a popular saying, used to determine stupid ads, annoying messages, pointless advertisements etc. Today spam is not only a funny saying, but it is going to be a serious problem for the law, technology and the economy. Firstly, governments enact new law, internet service providers (ISPs) are being forced to spend large financial expenditures on its refrain. Moreover spam lowers productivity of recipients who need to manage their messages in electronic mailboxes. Secondly, it is alleged that the some spam messages might be a source of serious crimes (child pornography, illegal drugs and medications ads) or other obscene content. Spam often contains a damaging computer programs (worms, viruses, Trojan horses, denial of service attacks). Fighting spam causes huge financial costs. To fight spam more effectively, the good law is needed for sure. Not without significance is also public 64

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education, international co-operation and efficient penalties. Thus, it seemed to me, that it would be a great idea to introduce anti-spam regulations in several different legal systems. I focused solely on the comparativist approach between two models: American and European with some other examples from the rest of the world. In United States the spam law was for a long time based on the common methods to solve similar problems. For example, it were forgery, breach of contract, trespass or trademark infringement. At the federal level, comprehensive regulation came in 2003, when President George Bush signed the “CAN-Spam Act 2003”. Prior to the enactment of the federal law, it is worth mentioning at this point some interesting

court

decisions.

CyberPromotions Inc. v America Online Inc. (AOL) and CyberPromotions Inc v. CompuServe seem to be the most important case law here. Both judgments were made on the basis of the first amendment to the U.S Constitution which prohibits

the

making

any

law

respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances and passed under the Charter of Rights of the United States of America (15 Dec 1791). In both cases, the courts have stated that it is forbidden to rely on the First Amendment to the constraint of mass advertising practices (hypothetical violation of freedom of speech) because both AOL and CompuServe does not act as public authorities (they didn’t have the competence of the public) when they objected to achieve messages from CyberPromotions. On the other hand it seems interesting, to signal case of E Spertus v. Kozmo.com, where claimant received $80 compensation. Kozmo.com was sending to their former clients advertisements of their new products. This online-shop did not apply the opt-out instructions (having the option to request to be taken out from the mailing list, for example by clicking “unsubscribe” link”). even with the requests 65

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of the former clients, they keep sending them commercial messages. Court, despite of the earlier trade relation of the parties agreed with E. Spertus. The first state who enacted the anti-spam regulation was Nevada. According to the law settled down in 1997, sender was obligated to insert into topic of message the word “ADVERTISEMENT” or abbreviation “ADV”. In addition, there was also an obligation of precise description and information about sender. Nevada decided to adopt the opt-out formula. 22 October 2003 , the U.S. Senate , passed the aforementioned CAN- Spam Act of 2003 ( Controlling the Assault of Non - solicited Pornography and Marketing Act of 2003) which came into force on 1 January 2004 . This Act is based largely on the earlier American experiences. E-mail sent for advertising purposes (so private and transactional messages are excluded) should have opt-out instructions and valid, traditional address of sender. Message should be marked as advert, although the CAN-Spam Act does not specify how it should’ve be done. Analysing the CAN-Spam Act as a part of the United States Code, it is impossible not to draw attention to an article 1037, which generally prohibits the sending e-mails in larger quantities without permission and with forging headers. It also prohibits the registration (with giving wrong information about the identity of registrant) of five or more e-mail accounts or two or more web domains in order to distribute mass mailings. Furthermore it is illegal to use a protected computer or relay techniques (configuration of SMTP – simple mail transfer protocol) to send multiple 66

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commercial electronic mail messages. What applies to pornography, aforementioned Act requires from senders placing the words â&#x20AC;&#x153;sexually explicitâ&#x20AC;? to help automatic filters to block unwanted messages. CAN-SPAM Act provides for breaching its provisions: a fine, imprisonment for up to year or imprisonment for up to five years for serious breach. Right to bring claims against the people who sending unsolicited messages is designed only for Federal Trade Commission, the Attorney General and the Internet Service Providers (ISPs). In turn, crucial for Europe is Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Concerning the processing of personal data and the protection of privacy in the electronic communications sector . Law of unsolicited communications is contained in Article 13 It is introducing the opt-in system (prior consent of subscriber is needed), which constitutes a fundamental difference with the American system based in opt-out. However, the second paragraph gives entrepreneurs the opportunity to send a message to the consumer, if the former contract legal relationship between them (exception in the form of an opt-out). However, this could only be done within the limits imposed by the type of product purchased (if consumer bought the headphones, he may therefore receive commercial information about other headphones) . Article 13 refers primarily to e-mail and SMS (short message service). The opt-in refers to the meaning of the Directive only to natural persons. Directive to harmonize allowed vested legal systems . state members of the EU failing to transpose its provisions, unified law in the spirit of an opt-in. 67

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