Obiter Dicta Edition 10

Edition 10 May 2015 Welcome to this special edition of the Obiter Dicta newsletter. In this edition we have introduced several new features, both to improve the reader content and also to make the editing process itself more interactive and interesting for contributors. The first major introduction is that of the Special Interview. Starting with this edition, we will interview interesting BLC partners and contributors on areas of current interest, with the interview for this edition being with Bartłomiej Jankowski, a Polish advocate who has quite recently been involved in defending prisoners of Gunatanamo Bay before the European Court of Human Rights. Regarding the interview innovations that have been made with this edition, we are proud to announce that this edition of OD was edited by a new Editorial Team consisting of students and alumni of the BLC centres accross the region.

Throughout the editing process we have tried to consider what would be most interesting for readers from our own perspectives, and we hope that you enjoy this exciting new edition of Obiter Dicta.

The BLC Team with editorial assistance from Dominika Baranska, Monika Ruseva, Klaudia Bederkova and Sara Valachova 1

CEEMC

6

Environment 16 and Health IP Issues

25

Commerce 46 and Competition Careers' Corner

60

BLC News

66

Interview with ...Dr Bartłomiej Jankowski Partner at JS Legal a law firm in Warsaw, Poland, graduate of the BLC Diploma course at the University of Warsaw, and current sponsor of the BLC. In 2014 he represented a prisoner currently being held in Guantanamo Bay in an action against Poland before the European Court of Human Rights relating to his rendition via Poland to Cuba. This interview took place during February 2014.

On 24 July 2014 the European Court of Human Rights handed down judgment ordering Poland to pay â‚Ź130,000 in damages in Al-Nashiri and Abu Zubaydah vs. Poland for breach of various Convention rights as a result of torture conducted against the applicants during their rendition to Guantanamo Bay. What was your involvement in this case?

I was a member of the team that represented Al Nashiri. I am also the only lawyer that represented the team in front of the Polish prosecutors in relation to the case, including both the litigation and investigation phases. And in relation to the judgment at the ECtHR, I was the member of the team that 2

Interview with prepared and filed the complaint of A.Z. for violation of human rights. I was also one of the members of the team that represented him in front of the ECtHR during the two-day session, one held in camera and the other in open session.

He is still at Guantanamo. Technically it’s Cuba, but it’s part of Guantanamo that is under US administration.

What were the difficulties in obtaining the necessary evidence to prove the case?

How did you become involved in the case?

This is the part where I would say that the case is interesting because the majority of the files are covered by secrecy laws and state secrets and some of the individuals that were involved in the case were in service to those who could eventually be found liable. There are different layers of secrecy that are applicable to that and that makes it quite interesting and challenging for lawyers who are involved in that case.

It’s an interesting story because at the time I was presented with that idea, I was still working with a large international London-based law firm. But we decided to transform my position as a partner with all those exclusivity rules to an of counsel with an availability to also take some cases outside the firm. That was a great moment and a great opportunity because I was offered something else to do, something that you wouldn’t be able to do in a large law firm for a variety of reasons and I was offered it by ‘Interrights’, one of the NGOs dealing with human rights protection based in London. I was contacted by them through my great friend and colleague, who I used to work with, and she was, and is, a great human rights lawyer. At that time she thought that I would be open to and interested in taking the case, which was absolutely correct. It was a great adventure. It’s amazing the level of interest in the case, it’s now part of Polish history. It will surprise no one that the case is quite complex; it’s one of the most important cases in my 15-year-plus legal adventure. I would say it is one of the most emotionally rewarding pro bono cases, especially when you find out that someone is being kept for over 10 years - its eleven years right now.

How do the procedural rules of the ECtHR differ from those you apply in Polish court cases?

It’s a very peculiar proceeding, and very different to the extent that it is unique, and that some of the rules were adopted for the first time in this hearing. We have been informed that the first session, which was in private, was being held on the premises of the Court, and in this instance it was the first session of its kind ever in the history of the Court. Leading up to the day of the hearing, the Court was really perfectly prepared, which is the greatest difference I would say when you compare it to domestic procedures. Of course numbers make differences; it’s a very unique and very exclusive court and hearings are amazingly rare in that court so it’s really hard to compare it to domestic tribunals dealing with thousands, if not millions, of cases a year. I have to say, talking about the case being rewarding, it’s one of those aspects of the case that was the

Where is he now?

3

Interview with most rewarding; simply having the chance to represent the client in front of such an amazing group of judges, all very distinguished lawyers from different jurisdictions alongside my colleagues. Because there are two teams, one representing AZ and the other representing AN, it was a team of over ten people. On one side it was the representatives of Poland. I was personally speaking in front of the judges in both sessions, in private session and in open court. It was such an amazing challenge and an amazing professional adventure, I wish everyone could have such a chance in their professional career.

Representing clients in such an important cases in front of one’s Supreme Court, the ECtHR or other internationals tribunals is probably something that we dreamed about once when deciding to be lawyers; it is a kind of dream come true.

You were one of two advocates who made oral submissions to the Court. How did you prepare to present before the Court?

The team work lasted several days before the hearing, and was completed on the night before submissions were made. It needs to be underlined that anyone who speaks in front of the tribunal is a representative of the entire team. It was agreed that only two people, one from each team, would make oral submissions.

So it was a selection that we made internally: that it would be a Polish lawyer and a foreign lawyer who represented the client in front of the ECtHR. And it was two persons on the side of the Republic of Poland that were also able to speak.

What advice would you give to a young advocate preparing his first submission before such a court?

Were there any objections from the parties regarding the development of those procedural rules?

Prepare, know the case by heart, know the facts by heart, cooperate with the best lawyers you can, be calm and perfectly well prepared. Of course, I could probably drag on and say much more because, frankly, you can’t treat this presentation differently to other presentations, to other public statements that we professionally make. It wasn’t anything different from that perspective. The difference from the perspective of a Polish domestic court was that the pleadings were in English, which is, whatever you say, however well you speak, a foreign language to me. So it was probably the greatest challenge. I was speaking in front of international bodies, I was speaking in front of English judges and also in front of some judges for whom English is also only a second or third language. It is a challenge because what is really important is that you need

Yes, it was subject to certain discussions and a mutual exchange of opinions and some of that was being made public by the Polish party, the Republic of Poland’s representative, by the state representatives who were questioning some rules of the proceeding (mainly connected to the protection of those secrets that are contained in the documents produced in the course of the Polish investigation). It was one of the key issues and it was one of the discussions. Indeed, it still is because in the motion to refer to the Grand Chamber, the issue is still being presented by the Representative of Poland.

4

Interview with to be communicating, it’s not a presentation that can just be said and a few people can understand it, no! it needs to be persuasive, to be really making arguments that are clear and that will then be analyzed and will lead hopefully to a positive verdict.

Will that lead to anymore individuals being presented with criminal charges?

I personally believe with or without the report, it was possible and it is the standpoint that was present in the past and I can only sustain that.

Nothing has changed, things that were said in the past are maybe most substantial because the source of the information is just an official report.

At the same time, I’ve heard comments saying that, when more people were trying to diminish its value, saying that it’s a kind of a political statement - Republicans against Democrats, offering allegedly alternative views over the same issues described in the report. That’s why I’m hesitating in attaching too much value to the Report. It is an important piece of work that describes issues connected with the war on terror, and with the Polish situation, although Poland is not mentioned specifically in the report.

What I would also say was different and from that perspective quite unique when compared to the Polish reality was that those so-called oral statements were actually all prepared in writing and it was only after that that they were presented; it was something that everyone did representing clients in front of the ECHR. I would say in Polish courts we would generally recommend young lawyers, indeed lawyers of whatever age, to be well prepared, to have their written arguments drafted. But the more it becomes telling the story, rather than reading, the more it enriches the level of persuasiveness, of communication. Eventually it is about delivering the story that the judges want to listen to, want to hear and eventually want to believe.

How do awards of the ECtHR get implemented against the violating Contracting State; in this case, Poland?

As you know the US has published its report confirming that torture practices were used in the name of the war on terror following 9/11. Do you think there is any significance in the fact that the only possible prosecution stemming from the publication will be that of the former head of the Polish Security Service, Zbigniew Siemiatkowski?

It is not generally a problem to implement judgments. Countries, such as Poland, perform their duties stemming from those verdicts without a great degree of problem. In this case, its value is rather symbolic, I would say, because our client is still being held in Guantanamo Bay with no rights to obtain any kind of money whatever as regards legal title, so it is rather a symbolic decision in relation to AZ, though it is really something that gives him an extra strength and energy to simply know that things are happening, that there are people who care what’s happening to him and it has great value from the perspective of AZ.

I would say that I don’t really know what will be this report’s impact on the Polish investigation.

All I know is that it is being translated into Polish right now, as is formally required. All I know is that the prosecutors in charge speak English pretty well but it needs to be translated to become part of the Polish investigation evidence.

5

MAY 2015

PAGE

6

CEEMC 2015 TRAVELS TO TBILISI GEORGIA Denise Ashmore

Central and East European Moot Court

BLC Course Director

Every few years the Central and East European Moot Court travels to a venue outside the European Union. This year however the competition travelled to its furthest eastern point yet, Tbilisi in Georgia!!!

Although it was the first visit to Georgia for the majority of CEEMC judges and teams, the CEEMC is very accustomed to the presence of Georgian teams, who have been competing at the event for a number of years. At each CEEMC final party, all participants and judges are treated to some unique cultural qualities, not least their love of singing and dancing.

Georgia can also be justly proud of its teams’ mooting accomplishments at the CEEMC, the highlight to date no doubt being the Brno competition in 2012 when a Georgian team not only reached the competition finals but also saw one of their members, Tamar Jikia, receive the award of the Best Speaker prize which entitled her to a short stage at the cabinet of Advocate General Sharpston in Luxembourg.

OUR HOSTS AND VENUE The competition this year took place between the 1st-4th May and was organised in co-operation with the Free University of Tbilisi. The main event was hosted by the Georgian Supreme Court with the final on Sunday being held at the Georgian Parliament. We saw how much our judges, led as always by the CEEMC president the UK Advocate General Eleanor Sharpston, were looking forward to their visit, not only to witness how the teams progress and develop their mooting skills and legal knowledge as they pass from round to round but also anticipated the taste of what turned out to be exquisite Georgian cuisine and wines.

THE 2015 PROBLEM As is our tradition each year, this year’s problem took a theme of current interest in the EU and looked at a number of cases which are currently before the Court of Justice.

The particular themes this year included : Benefit Tourism- a political hot potato in many countries, particularly that of the BLC’s home state, the United Kingdom.

6

MAY 2015

PAGE



Central and East European Moot Court



 

7

The challenge of differentiating between rights enjoyed of free movement by economically active persons (whether workers or selfemployed) and those rights provided to job seekers or EU citizens.

The challenges faced by divorced non EU spouses of EU nationals, their ability to remain in the EU and the impact this will have upon the children of the marriage.

The ability to limit voting rights for EU nationals.

The ability to place conditions on the educational grants.

No doubt everyone had a view on each of these issues and the joy of participating in mooting competitions such as the CEEMC, whether as judges or competitors, is to witness the diversity of the legal and practical arguments presented by competing teams faced with the challenge of representing both opposing sides equally well yet without revealing their own personal opinions on the issue.

As is always the case, all teams competing this year spent a highly challenging, but at the same time exhilarating and fulfilling weekend in Tbilisi….. And, as ever, boomed with energy at the final party and singing competition.

For those of you who want to learn more and who would like to compete in the competition next year, below are the Article 267 TFEU reference questions for this year… and more details of the event itself can always be obtained from any of the BLC tutors or CEEMC alumni or from the web site at www.ceemc.co.uk “1. Do Articles 20, 21 and/or 45 TFEU preclude a national measure, which requires students who have benefited from a state grant for studies in a higher education institution in a Member State, to seek and/or obtain employment in that Member State during the first five years immediately following the completion of their studies, failing which they are required to reimburse the whole amount of the grant, together with interest?”

2. Should a national of an EU Member State, who is not registered as a jobseeker in another Member State, where he resides, and who, in the course of almost two years, has done a 3-month non-paid internship and has supposedly exercised some sporadic and undeclared remunerated activity: a. be considered a “worker” within the meaning of Article 7 of Directive 2004/38 and/or Article 45 TFEU? b. if the answer to question 2(a) is negative, does Article 24, paragraph 2, of

7

MAY 2015

PAGE

8

Central and East European Moot Court

Directive 2004/38, apply to a national of a Member State residing on the territory of another Member State, who cannot show that he has ‘sufficient resources’ for himself and the members of his family within the meaning of Article 7, paragraph 1, point b) of the Directive? c. if Article 24, paragraph 2, of Directive 2004/38 does not apply, should Article 21 TFEU be interpreted as precluding a national measure, which pursues the objective of curbing ‘benefit’ tourism and which, for that purpose, makes the grant of unemployment benefits to nationals of other Member States conditional upon their having worked in the host Member State uninterruptedly for a period of at least six months and which requires such nationals, in order to be eligible for social housing, to have resided lawfully in the host Member State in the course of the last two years prior to their application?

3. Where a marriage between an EU citizen and a third country national ends in divorce obtained after the EU citizen has departed from the host Member State and has ceased to exercise his rights of free movement and residence there, and where the third country national parent has custody over the divorced couple’s (third country national) child and takes care of the EU citizen’s child, who is a EU citizen: a. can a third country national, in circumstances such as those at issue, rely on Article 13(2) of Directive 2004/38 in order to remain in the host Member State and to claim a right under EU law to work in the host Member State in order to fulfil the requirement for sufficient resources, laid down in that article?

b. Do Articles 20 and/or 21 TFEU, as interpreted by the Court of Justice of the EU, confer a right of residence to a third country national in the circumstances of the present case?

4. Are Articles 39, 49 and 51 of the Charter of Fundamental Rights of the European Union to be interpreted as precluding EU Member States from imposing an indefinite and automatic ban on the exercise of voting rights of all individuals, who have been sentenced to imprisonment by final judgment delivered in an EU Member State?”

8

MAY 2015

PAGE

9

Tbilisi 2015

Central and East European Moot Court

Competing teams and judges in the Supreme Court of Georgia

A massive congratulations to this year’s winners from the CEEMC Winning Team: University of Ljubljana Their prize includes a week based at the Universityof Cambridge, staying in halls of residence and joining other fresher week activities, as well as a visit to the London law courts and the Honorable Society of the Inner Temple, and also at the Supreme Court of the United Kingdom in London (see the following report of their visit from the 2014 winning team).

Best Speakers: Bilyana Borisova Manova (Bulgaria) and Mariam Moseshvili (Georgia).

The prize is a mini-stagaire at the Court of Justice of the EU at the Cabinets of of Eleanor Sharpston UK Advocate General and Bulgarian Judge Alexander Arabadjiev.

9

MAY 2015

PAGE

10

Central and East European Moot Court

Best Speaker 2014 Report At the very beginning I shall say that the CEEMC is one of the best things that ever happened to me. The competition itself was an amazing experience during which I met lovely people from all over Europe, who I believe I will stay in touch with for a long time.

I was awarded the Best Speaker prize but I have to confess that I never accepted this as a personal award. I consider it more as recognition for the efforts of the entire team and our amazing coaches, for the long training and everything that we have put into the preparation for the competition.

My prize was a week’s stay at the cabinet of Judge Alexander Arabadjiev at the Court of Justice of the European Union. Being a Bulgarian, the fact that my award was none other than a placement in the cabinet of the Bulgarian judge made me extremely happy. I have always respected Judge Arabadjiev for the quality of his work and dedication to the legal profession. I had the honour to meet him during the very first day of my stay at the CJEU. We had a short conversation in which he explained to me various aspects of his day-to-day activities. He also gave me valuable advice about my studies and future career development. What impressed me the most was the fact that despite his hectic schedule, Judge Arabadjiev was eager to understand more about me, my team and the competition.

I was really surprised to learn how busy everyone at the chambers is and how many cases are pending. I also had the opportunity to meet all four referendaires working in the judge’s chamber and learn more about the

10

MAY 2015

PAGE

11

Central and East European Moot Court

importance of their work. I was assigned a few very interesting tasks and research topics. One of the referendaires - Ms Julie Brohee, asked me to read all relevant materials (including the rapport prealable, observations of the parties etc.) regarding a case which was going to be examined by the Grand Chamber the next day and to prepare a list of questions which could further clarify the factual background and the parties’ submissions.

I also had the opportunity to work with Mr Alexander Kornezov (the first Judge’s referendaire) who was more than kind with me. He assigned me a few very exciting and challenging tasks including conducting research on Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the Services Directive). The research included the identification of relevant case law under specific provisions of the directive, searching for articles and publications of authors related to certain problematic issues and preparing a general overview (including my personal position) on a few very interesting and important questions related to the directive’s application.

In the course of the research, I visited the library of the CJEU where I spent almost two days. The library is very well organized and one can easily find plenty of books on EU law, various areas of Member States’ national laws, as well as the latest issues of many legal journals. I was really surprised to find that the Bulgarian section was supplied with some of the latest textbooks and materials.

I also had the chance to go through a few recent decisions given in preliminary ruling procedures based on queries of Bulgarian courts, and to prepare short summaries of the said decisions for inclusion in a special monthly journal issued in Bulgaria.

During the week I managed to attend a hearing of the Grand Chamber of the CJEU. This was a great experience because the case was intriguing and the judges were very active, asking questions during the entire session. I also had enough time to attend hearings of some of the chambers and learn lots of new and useful facts about insolvency proceedings in different Member States.

One of the things that impressed me the most was the truly international atmosphere and climate at the Court. While you are walking down the corridors you can hear all the languages of the EU and beyond. There are many stagiaires from all over Europe (not only Member State countries)

11

MAY 2015

PAGE

12

Central and East European Moot Court

who are always ready to show you around. Daniela and I had some pleasant lunches with the other stagiaires where we learned even more about the CJEU and the various work styles within the respective judges’ chambers.

Despite all the things we were engaged with, we also had the evenings for sightseeing and taking photos. Luxembourg is one of the most fascinating cities I have visited and I am really happy that I had the opportunity to spend a week there and truly feel its spirit.

In conclusion I need to mention that none of this would have been possible without the kind assistance of the British Law Centres, so a big ‘THANKS’ to all of you guys who arrange and organize everything – from the smooth running of the competition to all the additional and accompanying matters.

P.S.: A quick note to all future contestants – definitely try to win the competition. If you are not fortunate in this regard, then do your best to win one of the Best Speaker prizes because the experience is more than worth the effort.

Stiliyana Ivanova, (Best Speaker Prize) Member of the Sofia University Team at CEEMC 2014

12

MAY 2015

PAGE

13

Central and East European Moot Court

Winners Report 2014 It was a week of broken stereotypes; a week of sunny weather and good food; a week of interesting conversation and new acquaintances; a week, spent in a fairy tale world or a Harry Potter town - usually depends on the generation of the person making the statement; and finally, an evening, spent in the good company of Professor Bill Cornish and his lovely wife Lovedy, learning about music in the UK and wine in New Zealand.

Sure, we found out about 'showers of rain' in England, a phenomenon with which the four Slovenes were previously mostly unfamiliar. If it rains in the morning in Slovenia, you can bet your bottom dollar it is going to rain all day (and, possibly, night, and then the next day, too). Similarly, waking up to bright sunshine in dreamy Cambridge inevitably led to the Slovene team leaving the comfort of our rooms inadequately prepared for the English weather and ending up wet, nursing a cup of tea in the law faculty cafeteria, only to look through the window to see the sunshine emerging again - as if it were always there. We quickly adapted, though, and some of us even ended up bringing an umbrella home as a personal souvenir.

But we must digress, for we were, for the most part, extremely lucky with the weather. Right from the start, when we arrived in sunny London, the jackets were off and the collective decision not to bring winter coats was praised.

We managed to squeeze in two short tours of London before the meeting at the Inner temple the next day - one in the evening, to admire the nightlife and the city lights, and one in the morning, to enjoy the city parks and other sights. Granted, riding the bright red double decker bus is an experience in itself, and, naturally, the only correct way of riding it is on the upper deck, no matter the distance (or the age, for that matter).

It was soon time to meet the Inner Temple Sub Treasurer, Mr Patrick Maddams, for tea before lunch, and we talked about Magna Charta, knights Templar, the London Inns of Court and the legal profession in general – especially in judiciary, there are many differences between what we are taught (and used to) and the English system.

We got an even better view into the works of English courts when Ms Jennie Collis escorted us to the Royal Courts of Justice where we witnessed a proper court proceeding – which was surprisingly reminiscent of a certain earlier experience in

13

Central and East European Moot Court

MAY 2015

PAGE

14

Warsaw. A supreme court judge, Lord Hughes, later took us to one of the many wonderful meeting rooms of the court, full of books and old furniture, where we discussed the role of the judge in England and past as well as potential changes in their judicial system (Supreme Court as a new, yet not so new institution, the talks of bringing the judicial bench lower in the courtroom … some things important, some just interesting). It was a unique opportunity, speaking with someone with as much practical experience in a background so different from ours. We got another chance at that at a lecture in the evening, followed by a drinks reception and meeting the older, as well as younger, members of the Inner Temple. The time flew by and we had to fetch our briefcases and leave the bright lights of London for the green meadows of Cambridge.

Two Pizza hut pizzas later we had our - only!

- share of dubious cuisine for the week, and we were off to Cambridge, where we were hosted by the Emmanuel college for the week. We experienced it all: the full English breakfast in the morning, punting on river Cam (by experienced punters, as it was already too late in the year to risk falling into the water ourselves), getting lost in bookshops, running late for classes. All this, combined with our enthusiasm for classes, made us virtually indistinguishable from other Cambridge students, or at least that's what we told ourselves. It is a student city, after all, and who wants to look like a tourist? We even found a friend on one of our first days there - a huge furry dogue de bordeaux sweetheart named Toulouse, who kept his owner company as he advertised rides on river Cam. Ms. Ann Smith kindly provided us with a schedule, which included a tour of Lord Foster’s wonderful library (a name that came up a bunch of times during that week, almost as often as the question: “Have you gone punting yet?”), a lunch with Professor Fentimen (which included a cup of delicious, freshly ground coffee and a story or two about the Queen Mother, as well as a tour of the extraordinary Queens’ College) and Jonathan Morgan (at the breath-taking Corpus Christi college) and a cup of coffee with Professor Kenneth Armstrong in his office, which included an informative discussion about the EU institutions, the old traditions of Cambridge University and the lovely, still blooming gardens of his college (Sidney Sussex). We certainly hope that he enjoyed the exchange even partly as much as we did, since it is

14

MAY 2015

PAGE

15

Central and East European Moot Court

always wonderful to have such interesting people, dealing with all aspects of EU law, involved in the experience that is CEEMC! And finally, speaking of great people who make CEEMC the priceless learning opportunity that it is, on our last afternoon in Cambridge we were warmly welcomed by Professor Bill Cornish (even after one of ours went right for the driver’s seat when invited into his car). He showed us the Magdalene College’s Biblioteca Pepsyana, walked us through the park, telling us anecdotes about old students of the College, the rowing competitions, stories of Nelson Mandela’s visit and paying a compliment or two to the College’s new gardener (well earned!). Afterwards, we were taken to his home, which already smelled amazing, all thanks to Mrs Cornish and their hit dish. Omnivore or vegetarian, the tried and tested roasted chicken and/or potatoes with broccoli, gravy or béchamel and homemade redcurrant jelly were as good as anything we had previously eaten at the Inner Temple and the colleges (and those meals shattered every last stereotype about bad English food!). After a few glasses of wine and a cosy discussion by the fireplace, we were out like a light.

We’re very grateful to everyone that made this opportunity possible, the many student teams, their coaches and mentors, the professionals, the organisers. Thank you to AG Sharpston for making us think and act like lawyers, participating in the formation of this developing legal system of the EU; thank you to Denise, enabling the competition, as well as the trip to Cambridge, to run smoothly (or in fact at all!), thank you to Mrs Ann Smith for giving us the help we needed in navigating Cambridge, and finally, thank you to Bill and Lovedy for welcoming us into their home and for that warm cup of tea on our last morning in Cambridge.

We hope to see you again.

15

MAY 2015

PAGE

16

Environment and Health

This section contains student contributions relating to the Environment, environmental law and health law.

For the current edition contributors have written about climate change and the regulation of ecigarettes!

Climate Justice for the EU citizens Monika Adamczak-Retecka Ph.D. Olga Śniadach Ph.D. Maciej Nyka Ph.D. Faculty of Law and Administration, University of Gdańsk The impact of a mankind on the environment, including climate, led some of

the scientists to create informal geologic chronological term Anthropocene.

In the whole history of Earth there has never been any single species whose influence would be so deep and dominant to name an epoch with its name. Intergovernmental Panel on Climate Change, which was founded by the World Meteorological Organization in 1988 in its second Assessment Report found that the balance of proofs suggests discernible human influence on climate. As a consequence distortions to a biological and physical systems occurs with deep impacts on health

and

contemporary

socio-economy and

future

of

human

population. Adverse effects of climate change are especially visible in the law

16

MAY 2015

PAGE

17

developed societies, whereas predominantly responsible for their appearance are high developed country which are main produced of greenhouse gases. What is more this injustice exists not only in the relations among contemporary people, but also in our relations with generations which will come after us. They will have to face the adverse effects of our contemporary policy.

Climate change justice discussion is predominantly concentrated on the intra-generational aspects of distribution of burdens. Legal principle which is designed to serve this purpose is the

Doctors note and beware, if you wish to avoid claims of breach of duty and negligence liability!!!

In the case Montgomery -v- Lanarkshire Health Board in May 2015 a mother sued her doctor for negligence when her child suffered disability at birth claiming that it was not for her doctor to decide that a caesarian birth (which might have prevented the disability) was not in her maternal interest, but a decision to be taken the mother, who had first been fully advised by her doctor of all risks and options.

Despite losing the case in the lower courts, the Supreme Court led by Lord Neuberger and Lady Hale found that the doctors had breached their duty of care and added that a doctor ‘should not treat patients as uninformed and incapable of understanding medical matters, nor should they substitute their own value judgment for that of their patient‌’

17

MAY 2015

PAGE

18

principle of common but differentiated responsibility. United Nations Framework Convention on Climate Change together with Kyoto Protocol introduce number of instruments designed to provide equity between developed countries and developing countries. Among those instruments, it is enough to mention emission market, Joint Implementation or Clean Development Mechanism. The premise is that developed countries have necessary resources to bear the burden of mitigation and adaptation to the climate change. Due to that they can provide developing countries with knowledge

and resources to fight with the adverse effects of climate change. This responsibility stems from the fact that developed countries reached their position due to the unsustainable use of natural resources. One of the consequences of which are more limited development options for developing countries.

There are various definitions of climate justice. In the doctrine of public international law, climate justice is used as a term for explaining climate change as an ethical issue and considering how it relates to the concepts of social justice and environmental justice. Climate change is therefore not a

purely environmental issue and it differs from classic environmental problems in number of respects that are relevant to liability. Climate justice also refers to the legal systems and the possibility of

OBITER

DICTA

18

MAY 2015

PAGE

19

achieving justice through application and development of law in the area of climate change. The aim of the climate justice is to dissolve the burdens created by climate change (corrective justice).

Recognition of the fact that those least responsible for climate change suffer most is the starting point for above considerations. Climate justice can also be used to assign liability for past and projected

contributions to climate change, paving the path for financial reparations (distributive justice). The historical responsibility for the vast majority of greenhouse gas emissions lies with the industrialized

countries of the global North and the responsibility of the North to reduce emissions has been recognized in the UN Climate Convention.

The notion of „burden sharing� has been at the core of EU climate change policy since its inception.

This notion means that both the EU and its Member States have decided to participate in combating climate change. It is also premised on the awareness that it is always better to act together than independently, and that it is beneficial for the EU to speak with one voice at the international level.

Treaty on Functioning of European Union constitutes the legal basis for EU environmental policy and law. According to article 191 TFEU, Union policy on the environment shall contribute to pursuit of the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; prudent and rational utilization of natural resources; promoting measures at 19

MAY 2015

PAGE

20

international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

The European Union is based on the solidarity, not only among states but also among citizens. Model of Europeans’ citizenship implies that this is participatory democracy. An individual’s participation in the Union can be regarded in a broader and narrower perspective. The first perspective means manifestations of all and any activities of an individual that influence the Union’s direct shape, the latter one is distinguished by perceiving participation solely as political participation. Such activity at the European level is carried out through political civil rights, which arm an individual with mechanisms of influencing the legal and political system of EU. Indirect participation of the Union’s citizens in the EU political life, though it is defective to a large extent, is a link on the way of transforming from the Union of countries to the Union of citizens.

One of the most significant fields, in which Citizens of EU might take action is the field of environmental law. Individuals by their conduct and behaviour may have a real and considerable 20

MAY 2015

PAGE

21

impact on the Unions’ reality and might create environmental citizenship. Environmental citizenship involves individuals taking an interest in environmental matters, contributing to decision-making processes and identifying breaches of environmental law. In the system of European law beside the instruments of judiciary control, there have appeared a few out-of-court mechanisms which seem worth being mentioned. Since the Treaty of Maastricht, there have been acquired the European citizenship tied up with a right to appeal to Ombudsman, the right to petition the European Parliament and the right to bring actions before the European Commission in clearly specific cases. The Lisbon

Treaty has equipped individuals with a tool allowing them factual participation in the Union’s political life – the European citizen’s initiative.

Those instruments are supported by rights deriving directly from EU directives, which offer: access to information held by public authorities; participation in decision-making; and access to justice to enforce information and participation rights. According to the Court rulings, in the case C 427/07 one have conduct in sufficient way to ensure the public is aware of its right on access to justice in environmental matters. Because participation in the decision-making procedure and access to justice guarantees the public concerned effective participation in environmental decision-making procedures as regards projects likely to have significant effects on the environment. This kind of thinking is very helpful in creating European community of “environmental citizens”.

21

MAY 2015

PAGE

22

“E-cigarettes – regulating the non-regulated” Paweł Kurzawski BLC Warsaw student

Only recently electronic cigarettes have become popular on the market and therefore just a few EU countries, among them being Austria, France, Greece and Malta, managed to adopt regulations on this matter. In reply to such a legislative gap, the EU, in April 2014, adopted the 2014/40/EU directive (also referred to as “new tobacco directive” or “the Directive”) which deals with this matter.

However, before the Directive was adopted, a serious dispute on

the regulation manner for

electronic cigarettes occurred.

The most important issue, which the European Commission (“EC”) and European Parliament (“EP”) faced, was how exactly electronic cigarettes should be regulated.

The first possibility was to expand the definition of "tobacco product", so that the electronic cigarettes are covered by the latter. Although being the simplest from legislator's point of view, such solution received strong opposition from e-cigarettes producers. That is based on the fact that tobacco products are treated as cancer inducing, while the health impact of e-cigarettes is limited due to the absence of smoke emissions. Actually, the consumer does not smoke e-cigarette but rather inhales the nicotine vapour. The adoption of such approach would mean that all restrictions imposed on tobacco products must also apply to e-cigarettes, e.g. all of those considered as most important:

ban on smoking in public places, obligation to include health warning on the outer cover surface of a cigarette package, restrictions on advertising and age limitations, as well as fiscal burdens - mainly excise.

22

MAY 2015

PAGE

23

The second possibility was the e-cigarettes to be considered as medicinal products (i.e. having similar

regulation to homeopathic medicinal products and no actual proof of efficacy). Such approach was adopted due to the fact that, according to small number of producers, e-cigarettes could be used in nicotine replacement therapy. Consequently, if treated like a medicinal product, the restrictions on advertising of e-cigarettes, less strict than those on recognized tobacco products, would apply. Thus, it would probably be harder to justify ban on smoking in public places. Besides, a statement of the World Health Organization from the 9th of July 2013 clarifies that it has not been proved for the ecigarettes to be effective in helping people quit smoking.

As a final attempt for regulation of this matter, the EU drafted entire new regulation. Generally speaking, E-cigarettes are treated as a consumer product with few additional restrictions and exemptions. Firstly, the Directive gives a definition of electronic cigarette. Nonetheless, the regulation does not apply to e-cigarettes which are considered to be medicinal product.

Unlike the second approach above mentioned, for market authorization as a medicinal product, a producer must prove positive medical effect of the e-cigarette. The Directive introduces an obligation to include health warning on outer cover surface of a cigarette package, sets advertising restrictions

and gives technical details of nicotine concentration and nicotine liquid containers. Furthermore, restriction on cross- border sale and additives, as well as labelling packets concerning information on

23

MAY 2015

PAGE 24

the nicotine content and flavourings are regulated to tobacco products, accordingly. Determining rules on age restriction, fiscal matters and smoking (inhaling) in public places issues are within the discretion of member states.

The new tobacco Directive has a transposition date 20th may 2016. Yet,

the member states

demonstrate willingness (for now in parliamentary debates) to regulate within their discretion the ecigarettes matters with an approach similar to those applied to tobacco products. Personally I believe that state should always be consistent in its regulations. So if the directive permits medicinal use of ecigarettes, introducing smoking ban would be purposeless as it would effectively prevent the use of medicinal e-cigarettes in public places; also distinguishing whether one uses e-cigarettes for pleasure or therapy is futile. Age restriction and fiscal burden regulations are more arbitrary, after all there are many addictive substances that are not prohibited and even more taxes that were introduced just to reduce budget deficit. Nonetheless, only after appropriate statues are adopted, will we know the exact limitations to electronic cigarettes.

LAWYERS CORNER Can attending Birthday Parties create a contract, and should the parents should be worried?

As a matter of fact, some of them do need to worry! In December 2014, a five-yearold from Cornwall who, instead of attending the birthday party of a classmate, went to his grandparents and then got invoiced for the cost of attending the party.

The parents of Alex Nash received the bill for their son not attending the birthday party at a local Sports Centre, but refuse to pay. The legal issues are thus: Firstly, it is all but impossible to recover the £15.95 party "no show fee". Claim would be on the basis of a contract which included a "no show" clause. Also, for there to be a contract, there needs to be an intention to create legal relations. A child's party invitation would not create legal relations with either the child "guest" or its parents.

Additionally, it is impossible that a five-year-old would be seen by a court as capable of creating legal relations and entering into a contract with a "no show" charge.

All in all it is quite unlikely that other party will receive payment for their “damages”, but for future reference, dear parents, ………………………………………………..be warned!!

24

MAY 2015

PAGE

25

In this section contributors are given the opportunity to write about intellectual property-related issues. The current edition contains articles covering trademarks, copyright infringement and sensory trademarks.

SENSORY TRADEMARKS REGISTRATION – THE PROSPECT OF CHANGE Anna Walczak BLC Warsaw Student

Sensory trademarks are the new, non-conventional and problematic form of designation of the goods and services. It is reasonable to assume that they are signs that can be experienced through the senses, including the sense of hearing, smell and taste. Both the EU and international regulations do not include the protection of sensory trademarks expressis verbis. However, in many countries around the world, including EU Member States, the registration of sound and olfactory marks is deemed admissible. Increasing ambiguity of the European trademark system affects the need for legislative

IP ISSUES

reforms.

The registration barriers Identification of enterprises is moving towards modernization and improvement of techniques to creatively present the product or service.

Trademarks are an important factor for success on the market, essentially affecting the value of the company. Taking appropriate steps to reform the legal system of the European Union will undoubtedly contribute to economic growth and will provide an opportunity for the trademark system by removing the primary obstacle preventing the registration of non-

25

MAY 2015

PAGE

26

conventional trademarks. As a result of the registration, the owners of non-conventional trademarks would have been granted the protection, provided for trademarks, and wouldn’t have to rely solely on their claims of civil liability.

EU legislative attempts The ability of sensory signs, especially olfactory and sound marks, to perform the function of trademarks does not remain only in the realm of theoretical assumptions. On 27 May 2015 the European Commission has submitted to the Member States the application for amendment of Council Regulation (EC) No 207/2009 and Directive No 2008/95/EC. The aim of the initiative is to adapt the terminology to the Lisbon Treaty, simplify procedures, clarify the provisions of Community law and to ensure harmonization of EU and national trade mark systems. The proposed provisions provide for the introduction of fundamental changes. It is proposed, among others, to change the definition of the trademark, change individual procedural rules, and simplify administrative procedures. The Commission

considers that the mark serves as "a driver of innovation," which encourages modernization of products (or services). Rules should therefore reflect current market conditions.

The amendment of the legislative basis governing the system of trademark law in the European Union 26

MAY 2015

PAGE

27

may result in stimulating innovation. As it has been rightly noted in the opinion of the Committee on the Internal Market and Consumer Protection, the existing rules governing the issue of trademarks remained unchanged, while the business environment has changed significantly. With the increasing number of registered trademarks the expectations of entrepreneurs in relation to cohesion and universality of trademark registration system are growing.

The new definition of ‘trademark’ An essential element of the proposals submitted by the Commission is to change the definition of a

trademark. The proposed changes involve replacement of the term "Community trade mark" with "European mark", and the removal of the provision on the graphic representation. The requirement of graphic representation, called in the literature as the "Sieckmann requirement", creates a barrier for non-conventional trademarks. Although the requirement of graphic representation is considered just and necessary by significant part of the representatives of the doctrine, it must be called into question whether it is valid and useful. The restriction, resulting from the requirement of graphic representation, affects the freedom of economic activity. The primary purpose of changes is to create greater legal certainty for non-conventional marks. Proposed by the Commission record includes the removal of the requirement of graphic representation and the creation of a separate record stating that the signs can be perceived as a trademarks if they are represented in a manner that meets the requirements of the registration system. The proposed provision states that the European trademarks may be signs that 27

MAY 2015

PAGE

28

provide "the presentation in a manner enabling the competent authorities and the public to determine the precise subject of the protection granted to its owner" . Similarly to the existing requirement of graphic representation, this raises the question what kind of presentation will meet the requirements of the registration system. The main element of the Commission's assessment was a survey conducted by the Max Planck Institute for Intellectual Property and Competition Law. The study concerns, inter alia, the problem of graphic representation of sound marks and fragrances. It has been shown that this

requirement is perceived as "obsolete" and has to be changed.

The future of ‘ graphic representation requirement’ The proposed amendment for removal of the graphic representation requirement seems right and necessary in terms of economic development and trade. However, it should be borne in mind that further problems may arise through the registration of such signs, namely searching such trademarks in a database could be problematic. An entrepreneur when deciding on an application can independently check the availability of the sign. In the case of sensory signs, especially fragrance, it can be very difficult, if not even impossible, if the mark is registered in the form of a chemical formula. In the case of a verbal description, finding marks certainly would not be a major disadvantage, however, it would cast doubt on whether the description of the odor or the taste would be sufficiently clear and understandable. Nevertheless, as indicated in the explanatory memorandum of the Commission proposal, a change in the definition of a trademark does not mean unlimited extension of the list of acceptable marks, however, the removal of the graphic representation requirement will provide a flexibility of the patent offices in recognising applications for the registration of non-conventional

trademarks.

Q Have you heard about the lawyers’ word processor?

A: No matter what font you select, everything comes up in fine print.

28

MAY 2015

PAGE

Lawyers Corner What is a constructive trust?

Constructive trusts are a form of equitable proprietary remedy that are imposed by courts over property for the benefit of a party that has been wrongfully deprived of its rights in that property. In English law, constructive trusts arise by the operation of law, implying two things. The first implication of this statement is that courts do not have general discretion to impose a constructive trust, but must do so in accordance with established principles; this English version of the constructive trust is thus deemed the “institutional” constructive trust as it arises automatically when the defendant acts knowingly or unconscionably. The second implication is that the constructive trust is imposed irrespective of the intentions of the parties. The strictness of this statement is open to analysis, however, as Lord Wilberforce in Westdeutsche Landesbank v Islington Borough Council stated that, as equity operates on the conscience of the owner of the legal interest, the constructive trust arises as a result of the unconscionable conduct on the legal owner.

Given that the constructive trust will be likely to arise in any situation where the common law owner of property or a third party unconscionably denies or interferes with the rights of the owner, the scope for its application is extraordinarily wide and not subject to any certain or precise doctrine. As Edmund-Davies LJ says in Carl Zeiss Stiftung v Herbert Smith and Co, and which still hold true: “English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague so as not to restrict the court by technicalities in deciding what the justice of a particular case might demand.”

Ruairi O’Neill, BLC Tutor

29

29

MAY 2015

PAGE

30

Private copying in the European Union Veronika Dimova BLC Sofia Graduate

The fair balance between the rightholders` copyrights and the users` rights has motivated the European Union legislator to harmonise certain exceptions of the copyrights on a community level. 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 specifically Art. 5 gives the Member States a list of non-obligatory, but numerus clausus “limitations and exceptions” that can be transposed in their national legislations.

One of the most important exceptions in Directive 2001/29/EC (hereinafter referred to as “the Directive”) is the private copying exception of Art.5(2)(b) - any act of “reproduction” of work without the consent of the rightholder, “made by natural person for private use and for ends that are neither

directly nor indirectly commercial, on condition that the rightholders receive fair compensation”.

Even though the abovementioned private copying exception is non obligatory, it has been implemented in many EU countries. On 1st October 2014 the UK Copyright and Rights in Performances (Personal 30

MAY 2015

PAGE

31

Copies for Private use) Regulations 2014 came in to force attempting to implement the private copying exception also in the legislation of the United Kingdom. However the same objective is already pursued by the traditional fair dealing doctrine in the United Kingdom (Copyright, Design and Patents Act (CDPA) 1988). Although this doctrine defers significantly from the private copying exception in civil law countries, it has the same aim - the balance of the different rights.

For a reproduction to be “private copying” in the terms of the Directive, it has to be “made by a natural

person for private use” and for non-commercial ends, “on condition that the right holders receive fair compensation”. However, apart from these stipulations, Member States have certain freedom in many aspects of the implementation.

In the process of transposition of the Directive, some countries have even provided few additional elements of the concept of private copying in their legislations which are playing an important role for the balance between the different interests and the most important of them will be examined below.

Some of the EU countries previewed as an additional requisite that in order to enter into the private copying exception the reproduction needs to be made from a “lawful” source (French Intellectual Property Code) or by lawfully accessed source (Spanish Law on Intellectual Property) or not made from “obviously unlawfully produced model or a model which has been unlawfully made available to the 31

MAY 2015

PAGE

32

public” (German Copyright Act).

This is an extremely important condition for the balance between the different interests but unfortunately it cannot be found in the Directive and it`s lack could lead to a potential evasion of the IP law.

In response to the different approach of the EU Member States, on 10 th of April 2014 CJEU in Case C435/12 ACI Adam BV and Others ruled that the interpretation of the limitations and exceptions must be a strict one and the source from which the copy has been made has to be lawful even though the Directive is silent in this regard.

Another crucial point is the previous disclosure of the work. In the UK fair dealing doctrine this element is required, as if the “dealing” occurs in relation to an unpublished work, the defense is unlikely to succeed - Hyde Park Residence Ltd. v. Yelland [2000] 3 WLR 215. Some civil law countries like Spain and France for example also envisaged this requisite in their legislations. Yet it is true that the private copying exception plays its role only when there is no authorization from the rightholder for the act of reproduction. In these cases if the work has not been previously made available to the public, the user`s act will not only infringe the economic rights, but also could be infringing the moral rights of the rightholder.

32

MAY 2015

PAGE

33

An interesting issue is also the fair compensation, as a conditio sine qua non for the right implementation of the “private copying” exception. This is probably the most controversial aspect of the EU private copying harmonization. n the Spanish case C-467/08 Padwan SL v. SGAE, the CJEU ruled that the “indiscriminate application of the private copying levy to all digital reproduction equipment”, including those “acquired by persons other than natural persons for purposes clearly unrelated to private copying, does not comply” with

the Directive. As a result of this judgment, Spain made a huge change in its levy system as the Royal Decree 20/2011, in force as of 1 January 2012 established that the compensation should be provided by the State budget, and practically should be paid by all Spanish citizens. This approach has been highly criticized to a point that 14th of October 2014 the Spanish

Supreme

referred

a

questions related

Court

number to

to

of

the

CJEU

this

new

copyright levy system.

The

fair

compensation

concept is problematic also in the UK. First of all it is foreign to the traditional fair dealing doctrine. Secondly the UK Government is facing a Judicial review challenge in relation to the introduction of the private copying exception in the UK legislation without a fair compensation for the rightholders.

In Conclusion, the current problems regarding the proper implementation of the “private copying” exception which the Member States are facing, made it clear that an effective and deep harmonization of this limitation on a community level is extremely important for the “fair balance of rights and interests between the different categories of rightholders and users”.

33

MAY 2015

PAGE

Where to now?

UK elections mark the beginning of a period of uncertainty in English law The results of the recent UK elections came as something of a surprise to everyone, including the victorious Conservative Party, which achieved sufficient votes to have a majority of 12 MPs in the House of Commons and for the government without the need to repeat the coalition-style government (with the Liberal Democrats) which it had formed after the 2010 elections. The full results of both 2010 and 2015 elections are shown in the table below:

Conservatives

2010 election results (seats won in House of Commons, out of 650) 307

2015 election results (seats won in House of Commons, out of 650) 331

Labour

258

232

Liberal Democrats

57

8

Democratic Unionist Party

8

8

Scottish National Party

6

56

Others

14

15

Political Party

However, having breathed a collective sigh of relief that the UK Independence Party (UKIP) failed to win anything other than a single place in the Commons, the United Kingdom is now facing a period of considerable legal uncertainty.

First, the Conservative Party had already declared, prior to the election, that it intended to organise a referendum, prior to 2017, to decide whether or not the UK should remain a member of the European Union. Having won, the Conservatives appear to be favouring the option of bringing this referendum forward to 2016, in order to avoid a clash with French and German elections that take place in 2017.

The Conservatives’ election campaign contained a detectable anti-EU and antiimmigrant element (largely in an attempt to win back votes from UKIP), so it will be most interesting to see if their electorate (which comprised 36.9% of all votes cast) combines with UKIP supports (comprising 12.6%) to produce an overall total of 49.5% automatically in favour of leaving the EU. If so, it would require less than 1% of those who voted for other parties to support the exit and the UK would need to begin the (presumably lengthy) period of negotiating its departure.

Numerous aspects of this possibility remain ambiguous, such as whether Scotland would (as it wishes) be allowed to return to the question of seceding from the UK in the event of an EU-exit, or whether the UK will succeed in convincing the other EU members to extensively amend the existing EU treaties (especially concerning immigrants’ rights to social security) so as to avoid a UK-exit altogether.

Second, the future of the Human Rights Act 1998 appears to be in jeopardy, since

34

34

MAY 2015

PAGE

PM David Cameron has declared that one of the government’s key reforms will be to scrap an Act which was once described as the most significant reform of the legal system since the Magna Carta 1215 and has recognised by the courts as a ‘constitutional’ statute. The government’s aim is to exempt the Government from implementing unfavourable European Court of Human Rights rulings, but many legal questions remain as regards the continuing influence of Strasbourg’s ECHR via the ‘back-door’ – i.e. when the ECHR is applied by the EU’s Court of Justice in Luxembourg, or when the EU’s own Charter on Human Rights provides an answer that is identical to that which the ECHR itself would have given. Of course, if the postelection amendments also involve an EU-exit, this dilemma would disappear, but many others would remain, such as exactly where the UK would protect human rights in the absence of any international legislation and to what extent those rights would continue to reflect European standards.

One thing is certain – the forthcoming few years will be a very exciting time to study English law and the BLC teachers will/may have an awful lot of workbook updating to do!

Dr Steve Terrett, BLC Deputy Director (Kierownik Warsaw centre)

35

35

MAY 2015

PAGE

36

ESMA – a new way to stabilize the European market after the crisis Marta Szczytowska BLC Warsaw Student

In 2001, the Committee of Wise Men reported shortcomings in the legislative system for securities, what resulted in creation of the Committee of European Securities Regulators (CESR) which became a technical advisor to the European Commission. In 2009, after the outbreak of the 2007/2008 financial crisis, the Heads of the EU Member States called for further harmonization of European supervision to ensure the stability of the European financial market. This led to the establishment of the European System of Financial Supervision and creation in January 2011 of the three new European Supervisory Authorities (ESAs) – European Bank Authority (EBA), European Insurance and Occupational Pensions Authority and European Securities and Markets Authority (ESMA).

ESMA is an independent EU body which consists of two governance bodies: the Board of Supervisors which assemble the head of national competent authorities and the Management Board composed of six members selected from the Board of Supervisors and the one representative from the Commission.

The role of the Board of Supervisors is to take all the policy decision of ESMA (interpretation of community legislation, decision on the compliance by national authorities with community legislation,

36

MAY 2015

PAGE

37

decision in crisis situation, approval of draft reports or guidelines), while the aim of the Management Board is development of work programme, budget and staff resources. Although ESMA is independent and all its decision should be made on a European basis, it is accountable towards the European Parliament where its representative may appear at the request of the Parliament for a formal hearing.

There is also accountability towards the Council, additionally ESMA reports regularly on its activities through meetings and Annual Report. Comparing with its predecessor CESR, ESMA has much wider scope of competencies and powers which were set out in chapter II of the Regulation (EU) No 1095/2010 of the European Parliament and the Council of 24 November 2010 establishing the European Supervisory Authority (hereinafter as the Regulation). The Authority has ability to draft technical standards, issue guidelines and standards which are not legally binding but each competent national authority must indicate publicly whether it will comply with it within two months, otherwise the national authority must explain why they will not do this. In the event that a Member State fails to apply properly a national provision according to the EU legislation, the Regulation provides a fast track procedure (article 17) instead of taking action by the Commission against the Member State in the Court of Justice, which usually takes years. The Regulation gives ESMA power to settle sectoral disputes by enabling it to issue binding legal decision requiring the competent authorities to take specific action or to refrain from it. Moreover, ESMA can participate in settling cross -sectoral disputes. Among the list of ESMA task you may also find: monitoring systemic risk of a cross border financial institution, ability to enter into administrative arrangements with supervisory authorities, international organization, supervisory role in credit rating agencies and emergency powers in case of adverse developments which may jeopardise the integrity and stability of the European financial market. ESMA plays also important role in the consumer protection, including the ability to issue warning when a financial activity possess a serious threat for people, or it can assess the need to prohibit certain types of financial activities by informing the Commission, which can begin a proper procedure.

Currently, ESMA surely plays important role in harmonizing the market in Europe as it is equipped with powers to influence at some levels the national authorities, however for the present moment it is hard to evaluate its effectiveness as it is still a new EU body.

37

MAY 2015

PAGE

38

Umbrella pricing – is there room for private enforcement?

Bartosz Dobkowski BLC Warsaw Student

The phenomenon of umbrella pricing refers to situations in which non-cartelists, taking advantage of cartel members having fixed the price of particular products above the competitive market price, set prices at levels higher than they would otherwise have been in the absence of the cartel agreement. It poses the question whether market players who purchase these products from companies not engaged in antitrust violations, but operating in the same relevant market as colluding firms, have standing to claim damages incurred as a result of the cartel agreement.

In the Kone case a group of undertakings was involved in the “elevator cartel”. These companies were sued for damages by the Öberinfrastruktur, which had acquired elevators from a non-cartelist and then claimed that but for the illicit collusion of the defendants, it would have paid substantially less. The Austrian law, however, precluded claiming compensation in such situations on the grounds that the chain of causation between the cartel and the damage sustained was broken by the independent market decision of the non-cartelist. The Austrian appellate court, due to the doubts as to whether the denial of the right to compensation would infringe the principle of effectiveness laid down by the ECJ,

made a reference for a preliminary ruling.

The CJEU judgment was preceded by the opinion of Advocate General Kokott. Having determined that civil liability of cartelists for umbrella pricing falls within the ambit of EU law, she observed that the 38

MAY 2015

PAGE

39

criterion of “a sufficiently direct

causal

nexus”

between the conduct and the damage suffered, as required under Article 340 (2) TFEU (non-contractual liability of the Union), should be applicable also in cases of private parties seeking

compensation

from cartel members for the loss attributable to umbrella pricing. The requirement of “a direct causal nexus” derives from the case-law of the ECJ. It

renders the liability of the Union permissible only if the unlawful conduct of its bodies or servants is the determining cause of the damage. A direct causal link cannot be equated with the concept of a single causal link; the latter requires that the damage arise “directly, immediately and exclusively” from the unlawful act. Accordingly, in order for the criterion of direct causal link be fulfilled, it suffices that the cartel agreement “was at least a contributory cause of the umbrella pricing”.

In other words, cartel members can be held liable even if the price set by them was not the sole factor taken into account by non-cartelists when determining their own prices. Furthermore, Advocate

General Kokott did not share the view of the referring court, the defendants and the Austrian Government that it was impossible to establish causation between the loss and the defendants’ anticompetitive collusion since the loss was not sufficiently foreseeable. According to her, it should reasonably have been expected by the defendants that operators not party to the cartel would adjust their prices to those prevailing on the market. It was also unjustified to deem compensation of the loss inconsistent with the objective of Article 101 TFEU. The objective of Article 101 TFEU, which sets out a prohibition of agreements, decisions of associations of undertakings and concerted practices that are restrictive of competition, “is to create and maintain a system of undistorted competition on the European internal market”. It is pursued both through public and private enforcement. Unavailability of the latter in cases of umbrella pricing would undermine the effectiveness of the competition rules.

39

MAY 2015

PAGE

40

Magna Carta has a birthday!

Denise Ashmore BLC Course Director

The Magna Carta is a name renowned throughout the globe, not least in its 800th anniversary year, with celebratory events organised throughout the globe, including the one in which the BLC will participate during the Central and Eastern European Moot Competition in Tbilisi in May in collaboration with the British Embassy in Georgia and the Honorary Society of the Inner Temple.

Importance in the 21st century Some might ask how much relevance an 800 year old document still has in a modern digital society and remind us that the document was signed between an untrustworthy English king and powerful members of the English nobility concerned at protecting their rights, at a time where citizenship rights were not even remotely on the horizon.

Although this would be true in part, its hallowed words: No free man shall be seized or imprisoned, or stripped of his rights and possession, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by lawful judgment of his equals or by the law of the land and To no-one shall we sell or deny or delay rights or justice These words still resonate strongly in a global society where armed conflict, torture, imprisonment without trial, slavery and abuse are far from a point of eradication. It is little surprise therefore that this special anniversary is seen as an occasion of reminding us all of how long these values have been prized and how much we should all continue to strive to attain them.

Some context and former clauses Without in any way detracting from these essential rights which remain as key today as then, it is also perhaps important to remind ourselves of some of the original clauses which no longer remain in force, reflecting how much our society has changed since the days of the Magna Carta of 1215.

OBITER

DICTA

40

MAY 2015

PAGE

41

Or should I say the document of 1225 signed by King Henry III which re-enacted and reaffirmed these rights following King John’s abortive attempt to discredit and so ignore its terms with the support of his fellow European monarchs and the Pope. It is interesting to note that even then the contractual requirement of consideration was already in place, with each of the Barons signing the agreement paying monies in the form of a tax, in order to seal the bargain with the King!

So what else did it contain?

It was the first recognition of a new court system with a Court of Common Pleas so changing the previous custom that justice would follow the King around the country.

It continued to develop the assize system with travelling justices.

It recognised that sentencing should be proportionate to the offence committed and should normally not deprive a man of his livelihood.

It created standardised measures of goods, such as wine, ale, corn and other common products.

It stated that no man should be put on trial unless there was credible supporting evidence from more than one person.

Runnymede: the place where Magna Carta was signed

It also recognised reciprocity, saying that at time of war it would treat foreign merchants from the enemy in the same way as national merchants were treated there.

Most radically of course, it gave 25 barons the right to supervise the King’s compliance and to seek redress against the Monarch for any breach.

Yet I must confess to being surprised to discover that the 1215 version also contained a clause that required justices to be appointed only from men who both knew the law well and would keep it well, yet this clause had disappeared by 1225‌!! Is this significant I wonder.

So in summary, the cast may have changed, no feudal rights and barons or peasants remain, but its continuing relevance remains unchallenged as an ideal to which we can aim.

OBITER

DICTA

41

MAY 2015

PAGE

LAWYERS CORNER As you may know, Magna Carta is currently celebrating 800 years since it was signed in a field near Runnymede in 1215.

Not everyone has been quite so complementary of this document though, as evidence that it is not without its own controversies. No less than Supreme Court Justice Lord Sumption has recently been caught criticising the “distortion of history” over the anniversary celebrations, which he has described as serving “an essentially modern political agenda”!

In Sumptions own words, made during a speech at the British Library in March: “Some legislation has a symbolic significance quite distinct from any principle which it actually enacts,” he argued. “Thus it is with Magna Carta. It has become part of the rhetoric of a libertarian tradition based on the rule of law, that represents a precocious and distinctively English contribution to western political theory. The point is that we have to stop thinking about it just as a medieval document. It is really a chapter in the constitutional history of seventeenth century Runnymede: the place where Magna Carta was signed England and eighteenth century America.”

He added “Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not.”

Ruairi O’Neill BLC Tutor

OBITER

DICTA

42

42

MAY 2015

PAGE

43

LEGAL NATURE OF THE SPONSORSHIP AGREEMENT Aleksander Półtorak BLC Warsaw Student

Sponsorship is one of the most popular forms of business promotion along with advertisements and lotteries. This form gives huge profits for both – patron and sponsored party. Definition of sponsorship under the Polish Law can be found in a few normative acts concerning relevant areas of the legal system, though Polish Civil Code defines neither sponsorship nor sponsorship agreement.

Accordingly to the article 21 subsection 1.4 of the Act of “Bringing up in the Sobriety and Counteraction for Alcoholism” (26.10.1989 r. Dz.U. z 2007 r. Nr 70, poz. 473 ze zm.) “sponsoring” is a direct or indirect financing or co-financing activity of natural person, body corporate or organized unit not being corporation for promulgation, perpetuation or escalation of reputation of the brand, manufacturer or distributor, trademark or other features specific for the sponsor in exchange for briefing on sponsoring activity.

43

MAY 2015

PAGE

44

On the other hand, under article 4 subsection 7 of the Act of Radiotelephony (29.12.1992, Dz.U. z 2008 r. Nr 45, poz. 271 ze zm.) sponsoring is a direct or indirect financing or co-financing the creation or peddling broadcasts for the purpose of promotion certain features specific to the recognition of the sponsor.

We can distinguish different forms of sponsorship in each field. i.e. In sport industry the most popular is sponsorship of events, athletes or clubs. As in, the Science area more common are sponsorships of researches, publications and conferences.

Nevertheless it must be known that there would be no sponsorship without the contract.

Sponsorship agreement we shall count among the unnamed contracts regulated in article 3531 of the

Polish Civil Code. Fundamental rule stated in this article is the freedom to form a contract available for individuals and groups. Obviously this agreement is bilaterally binding, mutual and remitted, both parties gain profit but they also have certain duties at the same time. However, it is impossible to indicate essentialia negoti of all sponsorship agreements because they differ due to the individual factors specific for the certain relation. Thus, it is said that every sponsorship contract shall be drafted in most detailed manner considering specific situations that may occur in the future.

We can also divide sponsorship contracts into disposable and framework agreements. First one is

characteristic for short periods undertakings and usually regulates every area of cooperation.

Disposable agreements contain all rights, duties and possible penalties. Framework agreements, on the other hand, more common in sports industry, cover only basic regulations, thus contracting parties 44

MAY 2015

PAGE

45

always sign number of detailed agreements complying different requirements from narrow areas of cooperation.

Crucial to consider is “force majeure� clause which protects a contractual party from liability if any unforeseen event beyond it’s control prevents it from performing its obligations under a contract. It is impeccable to indicate the events that contract will cover.

Big role in contract drafting will play exclusion clauses. They prevent a contractual party from being held in breach of contract for specified events, or liable for certain types of loss. Nevertheless, there is a danger of using those clauses by stronger contractual party to prevent itself from liability.

In conclusion, it can be clearly seen that sponsorship agreement is not sufficiently regulated in Polish legal system. Nevertheless, we can adjust terms and conditions to all the circumstances using international rules with respect to the national law. Common law style of contract drafting will be the most useful tool especially, since sponsorship agreement needs to cover every hypothetical occurrence.

45

MAY 2015

PAGE

46

Commerce and Competition

This section contains articles on highly specialized topics on commercial matters and competition law The current edition contains articles on directors duties and overtime work regulations.

Duties of Directors in different legal systems Mateusz Hendzel BLC Warsaw Student The member of the Board of Directors or the Management Board under the Polish Law (hereafter “Director”) is one of the most important person in the

regular and efficient functioning of a company. In addition to performing his or her day-to-day duties, a Director is burdened with a number of responsibilities and functions. Duties differ from each other depending on which legal system regulates them.

Director’s duties and the Common Law approach

A system in which Director’s duties play key role in managing a company is the Common Law System, which applies, inter alia, in the United Kingdom.

The main piece of legislation which regulates the duties of Directors is Company Law Act 2006. It governs numerous duties, responsibilities and obligations of Directors. Among them is a duty to act within powers (section 171 CA 2006), which imposes to the Director an obligation to exercise his or her powers only in the limits set forth in the company’s constitution and to

act in accordance with the provisions of the latter. One of the most important demands in the effective management in the company is to

OBITER

DICTA

46

MAY 2015

PAGE

47

defining a framework of duties in which the Director must act within. Moreover pursuant to section 172 of the CA 2006, a Director is obliged to promote the success of the company. Despite the relative

generality of this obligation it introduces an extremely significant rule. According to this section, a Director, consistently with the principles of good faith, has to act at his or her discretion to ensure the success of the company and its successful promotion. In carrying out this duty a Director must keep in mind a few factors reflecting mainly to the benefit of the company's employees, environmental protection or timeliness of his or her decisions.

The ‘Code of Ethics’ to a Director

A Director has the duty to exercise an independent judgment (section 173 CA 2006). This duty stresses the need for independence and sovereignty in decision-making by a Director. However, this does not mean, that a Director may not consult with other directors before making a decision, but he or she must take this decision independently and suffer any possible consequences thereof. This section protects the independence of Directors against pressure from the supervisory board members or the shareholders.

Another important duty is to exercise reasonable care, proper skill and diligence (section 174 CA 2006).

Executive position requires from guardians of this function relevant skills that will contribute to the prudent and effective decision-making and predicting their effects. This section serves to the protection of responsible and successive administration of the affairs of the company.

47

MAY 2015

PAGE

48

In addition to these obligations, the Directors are required to avoid conflicts of interest (section 175 CA 2006), not to accept benefits from third parties (section 176 CA 2006) and to declare interest in propos od existing transaction or arrangement with the company (section 177, 182 CA 2006).

These basic duties of Directors in the Common Law System are extended on case law, however, for the purposes of this article, only the most relevant were pointed and described.

As we can see, the Common Law duties of Directors are considered as practical, business and ethical directions, which a Director must be guided of in decision making concerning the business activities of the company.

Director’s duties and the different Polish Law approach

The Polish legal system, as an example of the Continental Law System, represents a rather different approach. In the latter system, those duties have a different dimension than in the Common Law System, as they are separated into many legal Acts – there is no harmonization of such duties. The articles of the Commercial Companies Code (hereafter ”CCC”) do not directly provide the duties as the CA 2006 does. Despite the difficulties of interpretation, we can be assume that under the CCC Director is required to act within the competences conferred onto him or her by the management agreement, articles of incorporation, regulations, laws and shareholders meeting (art. 207/375 CCC), duty to avoid

48

MAY 2015

PAGE

49

conflicts of interest (art. 209/377 CCC) and the prohibition to impede managing the affairs of the company by the shareholders meeting and the supervisory board - an independent judgment rule (art.

3751 of the CCC).

In addition to the responsibilities listed in the CCC, some laws impose other obligations on Directors.

The Accounting Act (1994) imposes on the Directors the obligation to keep accounting records and the obligation to maintain shareholder books, the National Register of Court Act requires from the Director the obligation to notify certain changes in the company, such as change of a Board member or increase of the share capital of the company, updating data to the public administration body which appraises Value Added Tax and to the Tax and Registration records.

The need of harmonization. Challenges or opportunities for Polish Company Law?

As we can see above obligations and duties of Directors in the Continental Legal System, on the example of Polish law, differ significantly from those imposed on the example of the UK in the former system. In addition to the previously mentioned dispersion of laws, the main reason for the difference is the way and the desirability of their applications. Obligations arising in the Common Law System are a kind of business indicators and ethical behavior in the conduct of Company’s affairs and the guidelines that should the director meet in daily management.

On the contrary, Polish law, as an illustration of the Continental Legal System, has a completely different dimension. They present rules strictly related to technical and legal aspects - and clearly defined duties that should be met by the directors, rather without any practical guidance.

The findings presented herein suggest that the Continental System and the Polish law as a part thereof,

should draw the pattern of regulation the way it is already made in the Common Law System. The harmonization of these rules and giving them more practical importance would be helpful with respect to the effective company management and constitute essential guidelines in appointment of the appropriate and qualified individuals for such an important position.

49

MAY 2015

PAGE

50

Ghost Mansions, Corporate Secrecy and the Land Registry Will Odogwu BLC Tutor

Recent research carried out by Transparency International UK (TI-UK) has shone light on a shadowy world which lies just out of view, obscured by the gleaming balustrades of the upmarket residences of such exclusive London neighbourhoods as Mayfair, Chelsea and Hampstead. A huge number of properties in such desirable haunts have been acquired by persons unknown; individuals sheltered by legal barriers of equal impressiveness to the grandiose austere brick and stone facades of their upscale homes. In articles published in 2014 by London’s Evening Standard and the UK broadsheet, The Guardian, the phenomenon of ‘ghost mansions’—including some 700 unoccupied luxury dwellings worth a combined £3 billion—had already been decried. Now, TI-UK has revealed that the grounds for embarrassment arising from dealings in upmarket London properties extend beyond such wasteful (non-)use of accommodation in a city where decent housing is all too scarce, to embrace the likely sheltering, processing and wealth-swelling investment of huge quantities of illicitly obtained funds; practices which are enabled by both the use of highly secretive corporate

50

MAY 2015

PAGE

51

structures—registered in jurisdictions where the identity of neither shareholders nor directors need be declared—and the ‘hear no evil, see no evil’ approach manifested in the form of the UK’s national land register.

More than £180 million worth of property has been subjected to criminal investigation by the Metropolitan Police in the last 10 years as representing the suspected proceeds of corruption. This sum likely represents a mere surface ripple; all the evidence suggests that beneath the surface there be monsters! As the TI-UK report makes clear, if we regard the characteristics common to the large majority of the transactions underlying the grand corruption cases pursued by the Met as the danger signals that they are, it would appear that the scale of the problem may be vast. Working backwards from suspicious factors such as purchases through secrecy-jurisdiction companies, multi-million pound house prices paid up-front in cash, and purchases showing no sign of funding through the relevant buyer selling any earlier-acquired properties, the sense of foreboding rapidly mounts.

Of the properties investigated by the Met Police, more than 75% were owned by companies registered in jurisdictions which either do not record the details of those beneficially interested in companies or openly permit practices which function effectively to render such persons anonymous, for example through the use of nominees as registered shareholders. The primary suspect jurisdictions are Jersey, the Isle of Man, Guernsey, and—first and foremost—the British Virgin Islands (BVI). Some 120 properties with an average value of £1.5 million were the subject of the Met’s corruption and fraud investigations. But based on a survey of the Land Register, TI-UK discovered that there are no fewer than 36,342 properties owned by such secrecy-jurisdiction companies in

51

MAY 2015

PAGE

52

London alone. In its own inquiries, the Financial Times (FT) has estimated that nationwide the value of properties owned through secretive corporate structures likely exceeded £122 billion as of July 2014. All this, when read alongside UN estimates that typical detection rates by law enforcement amount to merely 1 percent of total money laundering flows, gives cause for more than mild concern.

Anecdotal examples of high-profile individuals involved in illicit dealings in London properties include the former Governor of Delta State in Nigeria, James Ibori. Mr Ibori made off with an estimated £150 million taken from Nigerian public coffers, several millions of which he invested in three London properties in the uber-exclusive enclaves of Regent’s Park, St John’s Wood and Hampstead. Among the others caught-out was Saadi Gaddafi, the third son of crack-pot former Libyan dictator Muammar

Gaddafi, who acquired a £10 million property in Hampstead through the BVI-incorporated vehicle of Capitana Seas Ltd. It may fairly be guessed that the unsavoury characters and goings-on behind such dealings in exclusive London properties that will never become public knowledge are myriad.

Critical failings of the UK system surrounding the acquisition of real estate appear to be in evidence.

TI-UK points the finger at a number of problematic features of the regulatory environment. In particular, the Land Registry’s failure to require further information when companies incorporated in secrecy-jurisdictions attempt to register as owners of UK properties comes in for criticism. But equal concern is reserved for the inept arrangements in relation to real estate agents’ obligations to report suspicious transactions. Lastly, beyond the UK’s borders, but not beyond its influence, lie the Crown

52

MAY 2015

PAGE

53

Dependencies and British Overseas Territories such as the BVI and Channel Islands, whose facilitation of purchaser anonymity is clearly a key link in the chain enabling the recycling and investment of illgotten gains. Some of the problems associated with corporate ownership are particularly tricky.

When shareholdings are maintained through multiple layers of intermediary corporate entities, which may be registered in several different jurisdictions with strong secrecy regimes, and such natural persons who are discoverable are nominees offering their services as holders of the bare legal title without ultimate beneficial interest, it is not clear that improvements in Land Registry information requirements would address the core problems.

Estate agents and the duties to flag up suspicious transactions that they are subject to could be a point of intervention—though obviously not amounting to a silver bullet capable of eradicating the problem in itself. At present, estate agents are only required to report their suspicions on the sellerside of transactions. Clearly, there is greater potential to present a sale in a benign light if two decades have elapsed since the time of purchase with dubiously acquired funds. However, when acquisitions of properties are made with cash and through vehicles incorporated in secrecyjurisdictions, convincing cover-stories would presumably be harder to come by‌ even if not altogether beyond the imaginations of those lawyers and accountants who advise governors of corruption-plagued states and sons of dictators!

Imposing buyer-side reporting obligations on estate agents may be a small though practically achievable step towards reducing the extent of the London luxury housing market’s complicity in global corruption. Yet it hardly needs emphasising that the problem clearly runs much deeper.

53

MAY 2015

PAGE

54

Overtime Regulatory Basis Within the European Union – Comparative Research Monika Ruseva BLC Student Sofia

Considering cross-border migration within the European Union, it might be useful for those

economically active and job-seekers as well to be aware of the significant differences existing in regulations on overtime in the Union. Without claiming comprehensiveness, this analysis strives for outlining some essential differences which pop up when comparing a few regulatory approaches to overtime within the EU.

Key facts The minimum protective standards the EU workers must be guaranteed are laid down in the Working Time Directive (2003/88/EC). It is set forth in Art. 6 of the Directive the obligation for the Member States (MS) to take the measures, necessary to ensure that the average working time for each sevenday period, including overtime, does not exceed 48 hours. Yet, a list of derogations to that rule

54

MAY 2015

PAGE

55

exists, e.g. self-employed persons, managing executives, family workers and some other exceptions are placed, adjusting certain specific economic sectors. Nevertheless, the Directive does not govern the time limits for posing overtime to workers. Neither does it govern any payment rates for regular, overtime or on-call work, remaining those matters entirely for national law or collective bargaining.

Individual EU countries are free to establish higher or lower standards for worker protection depending on the social politics they adhere to.

An interesting fact that shall be noticed from the outset is that in 1993 Great Britain succeeded in inclusion of an opt-out clause giving possibility for deviation of the 48-hour working week rule (up to now 15 MS benefit from this rule, including Bulgaria). The European Parliament adopted an amendment for removal of this clause 36 months after entering into force of the directive. After the European Parliament elections in 2014 the future of the opt-out clause is in the hands of the European Commission again.

LAWYERS CORNER

Who is my employer, my Bishop or God.... ??

A vicar who had suffered harassment and ill treatment at a difficult parish claimed that the lack of briefing and support from his Bishop in the position of his employer, entitled him to employment law protection and so , initiated a claim for unfair dismissal...

The Court of Appeal disagreed finding that he was not employed, or at least not in an earthly sense, and so did not fall within the class of persons protected by employment legislation, but was rather the holder of a religious office (case reported on 1st May 2015)

55

MAY 2015

PAGE

56

How do the principles work within the EU – state v bargains

A statutory norm, i.e. maximum working time, usually exist as a threshold marking the point at which extra pay or time off for overtime starts being due. Those hours worked in excess of the negotiated hours but below the statutory threshold are not classified as overtime in regulatory terms and thus are paid as ordinary hours (e.g. in Austria, Italy, Norway, Spain and Sweden). Collective bargaining, however, may regulate the time norm (e.g. Germany and Denmark), including lower thresholds at which overtime begins (e.g. Finland) or raise them. They can even increase the maximum allowed statutory number of overtime hours (e.g. Italy, Norway and Sweden) or lower the maximum working time set by legislation. Some examples such as the Netherlands exist for implementing systems for planned variation.

In other cases, the option of exemption from the regulations is still in place, e.g. based on permission granted by the authorities (as in Greece). An interesting example is the situation in the UK where the level of bargaining is at the company rather than in

the particular industry sector. The overtime, however, is hardly regulated even on that level.

56

MAY 2015

PAGE

57

France is usually described as the 'prototype' for state intervention, a view challenged within France itself. However, nowadays the idea that the legislator decides everything in terms of employment conditions is far from accurate. In the field of working time especially, the state actively encourages collective bargaining. It has built a very precise framework of restrictions to the field of, and the conditions for, its own intervention in such matters. Furthermore, it largely reproduces the results of previous bargaining in its statutory provisions.

The Dutch method of regulation is unusual. The state determines what ‘normal hours’ are. Deviations can be negotiated within certain limits in collective and company bargaining. On top of this, in very special circumstances, these limits can be stretched even further, again through negotiations and within limits. Additional compensation for deviations from the norm is provided only by collective bargaining.

Unsolved issues for the EU Member States – What’s next?

The “hot potato effect” is still in place as here comes the issue with extended working time which

represents itself overtime but yet unpaid. Are there any measures that the EU shall take on a supranational level or it will be again for the MS to resolve the problem? In all ways, a room for discussion remains open.

57

MAY 2015

PAGE

58

What is next for Justice?

Sara Valachova BLC Student Sofia and Editorial Board Member

When the new Commission was inaugurated on 1st November 2014, the ground under many chairs in Brussels shook. Not necessarily because of personnel changes, but more importantly out of JeanClaude Juncker’s revolution in the Commission’s institutional configuration. His idea to organize the Commissioners in clusters and appoint vice-presidents to oversee individual topics has affected the area of justice as well as other areas. The union of Justice and Home Affairs has been divided into two separate DGs. The Justice and Consumers DG (DG JUST) has been given its own Commissioner, Věra Jourová, who is in charge of the Justice, Consumers and Gender Equality agenda.

Overseeing her work is Frans Timmermans, the First Vice-president in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights. While we have to wait to see how exactly this system will work in the future, it is clear already that the Vicepresident will have a very strong position which has been defined as the right hand of the President.

Timmermans is not only supposed to guide Věra Jourová; rather, according to the Allocation of portfolios, he is also expected to “ensure respect for the Rule of Law, the principle of equality before the law and the principle of transparency in international trade negotiations”. Essentially, his role

was defined in a Commission press release as “a watchdog, upholding the Charter of Fundamental Rights and the Rule of Law in all of the Commission's activities”.

One point on this Commission’s agenda that will be of particular interest especially for human rights lawyers, but also for those dealing with competition and other issues, is the question of EU accession to the European Convention on Human Rights. Juncker’s Commission has decided to follow in the footsteps of its predecessor and pursue the accession. However, its efforts were hindered by the recent decision of the Court of Justice which has rejected the draft agreement on accession on basis of its non-compatibility with EU law. While it certainly is a major setback in the EU’s journey towards becoming a party to the ECHR, the EU is still under an obligation to accede to the Convention as

58

MAY 2015

PAGE

59

stipulated in Article 6(2) of the TFEU. Given the Commission’s agenda, we can expect Juncker to press for a new Draft Accession Agreement which will have to undergo major re-thinking in order to satisfy the Court’s demands.

Other main topics defined by Juncker for his Commissioner are the fight against discrimination, data protection, combating cross-border crime and terrorism and judicial cooperation among EU Member States. Juncker also promises, in the Commission Work Programme 2015, to pursue “efforts to put in place an independent European Public Prosecutor's Office” whose role would be to protect the EU budget against fraud. The data protection agenda has been on the table for some time now and will become only more pressing in the coming months and years. Some guidance on its future development was given by the Court of Justice in its rulings on data retention and the right to be forgotten which has exposed significant gaps in the current framework.

We can expect a fight to end the delay in the adoption of a controversial Horizontal Anti-discrimination Directive as Juncker will, according to his Political Guidelines, “seek to convince national governments

to give up their current resistance in the Council”. This Directive was first proposed in 2008 and a common will to actually adopt the Directive is not present currently. Juncker is however joined by the Latvian presidency of the Council of the European Union which covers the first six months of 2015.

59

MAY 2015

PAGE

60

This section contains student contributions relating to the career matters. As careers matter as a going concern for our generation of millennial readers, we thought we’d add some articles of interest in this interesting field!

The easiest way to become a lawyer in the European Union

Career Matters

Karolina Kaleta-Blicharz BLC Student Warsaw

There are several directives that regulate the recognition of legal qualifications in the European Union: Directive 77/249/EEC, Directive 89/48/ EEC, Directive 98/5/EC and Directive 2005/36/EC. In order to benefit from these regulations, you must obtain a professional title in one of the EU Member States. The career paths to becoming a lawyer differ depending on the state.

As a citizen of the EU you may rely on the freedom to provide services as well as the freedom of establishment. You are entitled to practice under an original professional title in each Member State equally to its own lawyers.

However, the aforementioned directives go further. It is possible to obtain a professional title of the host Member State after proving effective and regular practice in that state for a period of at least three years. If it’s beyond

60

MAY 2015

PAGE

61

your reach, you may complete an adaptation period or pass an aptitude test. Generally, the choice is up to you.

In the light of the above, recent Judgment of the Court of Justice of the European Union (Grand Chamber) of 17 July 2014 in joined cases C-58/13 and C-59/13 Angelo Alberto Torresi (C-58/13) and

Pierfrancesco

Torresi

(C-59/13)

v

Consiglio

dell’Ordine

degli

Avvocati

di

Macerata

(ECLI:EU:C:2014:2088) is vitally important. The applicants had each finished law studies in Italy and then they went to Spain to obtain Spanish university law degree. They were registered as lawyers (span. abogado) in the Bar of Santa Cruz de Tenerife in Spain and after 3 months decided to benefit from the freedom of establishment in Italy. They submitted applications for registration in one of the Italian bar association to exercise legal activities under a Spanish professional title abogado. No decisions on the applications for registration were issued. The applicants sought a ruling from the Consiglio Nazionale Forense which submitted a request for a preliminary ruling. The CNF considered the applicants actions as an abuse of right, invoking the fact that Spanish procedure to obtain legal title is much easier than the one in Italy.

OBITER

DICTA

61

MAY 2015

PAGE

62

A Bumper Year for BLC Legal Workshops Those of you who are alumni of our diploma and certificate courses will, no doubt, be aware that the BLC teaches more than simply substantive knowledge of English and European law. The fostering of legal skills is an integral part of our teaching, as is evidenced by the Central and Eastern European Moot Competition (CEEMC) (www.ceemc.co.uk) and the workshops on mooting, fact management, legal research, advocacy and mediation that our tutors provide each year.

The BLC annual firms fayre adds a wider range of workshops to the BLC’s repertoire, when our sponsoring firms invite BLC students to their offices to participate in a series of specialist, practitioner workshops. Here are some of the delights offered in March-April this year...

Firstly we saw the repeat of last year’s hugely popular workshop on English language for lawyers, provided by Allen & Overy’s chief proof-reader, Chris James, at their offices in Warsaw. Once again, students were treated to the fun and interactive manner of Chris’ experienced teaching style, and no doubt picked up a lot of useful tips on how to draft legal documents – and undoubtedly, BLC assignments – in the English language!

A intensive weekend arbitration workshop was hosted by the Warsaw-based law firm Wardyński and Partners, which focused on the skills utilised OBITER

DICTA

62

MAY 2015

PAGE

63

by lawyers in international commercial arbitration. The twenty students participating were provided with a set of case papers on a fictional dispute between a Polish corn producer and a Swedish vodka producer, and asked to assume the role of the representatives of the parties to the dispute and to arbitrate the matter before an arbitration panel appointed by supervising practitioners from the firm. During this workshop, students were exposed to the skills necessary for fact management and case preparation, witness handing, including cross-examination and examination-in-chief, and the preparation of opening and closing speeches. The then prepared a post arbitration brief...and received an individual mark on the presentational and written skills demonstrated.

Events then moved to the Warsaw office of Clifford Chance, with a workshop which focused on white-collar crime, and specifically, the skills of witness handling/ internal investigations where a corporation or its employees were suspected of committing internal breaches that may fall within the scope of criminal law. Over the course of the day, students were presented with potential substantive legal issues inherent in this form of crime and, through the use of practical examples provided by the experienced trainers, were asked to comment on the moral, political, practical and legal dilemmas faced by corporations and investigating lawyers confronted by potential internal criminal breaches.

OBITER

DICTA

63

MAY 2015

PAGE

64

A second intensive weekend workshop was hosted by JS Legal, the Warsaw-based boutique law firm founded by two BLC alumnus Dr Rafal Stroinski and Dr Bartłomiej Jankowski (see earlier interview). This time Rafal and his experienced team of lawyers became the difficult clients that the BLC students needed to advise and satisfy when negotiating, drafting and closing a contract on an international business transaction, which gave participants a flavour of the pressure and time constraints placed placed on a transactions lawyer when facing with demanding clients, a dead line, differing interpretations of law and the involvement of more than one country, being asked to assume the role of a negotiator in a mock international transaction negotiation.

The fifth workshop was a mock joint venture workshop hosted by Linklaters in Warsaw, where students were divided into teams and asked to conduct a client interview, clarify their client’s business position and negotiate a contract with another team of students, in the field mergers, acquisitions and joint ventures. All of this took place with the active participation (as clients) and supervision of a team of experienced lawyers from the law firm.

Given the extremely positive response of the students who attended all of these workshops, and the high levels of enjoyment experienced, the BLC certainly plans to ensure that workshops remain a regular part of the BLC education landscape for years to come in all their centres!

All firms involved made an immense effort to ensure that our students could gain from their knowledge and experience, so improving/ acquiring/ enhancing students own legal skills. We know that many of the students who participated have since applied for the student placement schemes offered by many of our sponsors or are beginning the process of job-hunting in the firms they visited. As always, the BLC can pride itself on having made a practical improvement to the knowledge and employability of our students.

A very warm and public thank you to all of the trainers who gave their valuable time and put in so much effort into making these workshops such an important tool in the legal education of our BLC students (and at the same time having a lot of fun throwing themselves into the roles of witnesses/ clients..the acting profession beware!!!!)

OBITER

DICTA

64

MAY 2015

BLC Information

Would you like to have your work included in the next edition of Obiter Dicta?

OBITER

We are looking for both longer articles of 2000 words and shorter updates of 300-1000 words Please register your interest in submitting an article to Editorial@britishlawcentre.co.uk We would be delighted to receive articles on any aspect of your national law, private international law and European law

The contents and appearance of OD are protected by copyright law and all relevant moral rights asserted. Copyright of individual articles belongs to the author (s) of each article, none which may reprinted save with the permission of the author. Published articles represent the views of their respective authors and do not constitute advice of any kind, nor necessarily reflect the views of the British Law Centres and their staff. Any pictures displayed throughout have been added from www.google.com. The author retains the copyright throughout.

Remember to check our website for more frequent updates, goings-on at the British Law Centres, and issues and events of continuing interest to our students and alumni The British Law Centres would like to thank the following firms for their ongoing support in relation to the Diploma courses offered throughout Central and Eastern Europe

DICTA

65

MAY 2015

PAGE

66

The BLC year in Obiter Dicta

BLC NEWS AND EVENTS

BLC MEMBERS AND ALUMNI NEWS

OBITER

BLC Directors: The mantle of Chairman of the Law Faculty of Cambridge University will be taken this year by the BLC’s own Academic Director, Professor Richard Fentiman. Anyone who has had the privilege to attend one of Professor Fentiman’s lectures on international commercial litigation will no doubt join with us in congratulating him on this much deserved, highly eminent appointment.

The BLC is very pleased to welcome Dr Jennifer Davis to the Board of Directors of our supervising charity Juris Angliae Scientia Ltd.

Dr Davis is an Intellectual Property law specialist and the author of ‘Intellectual Property law; core text series of Oxford University Press and a Fellow of Wolfson College, University of Cambridge.

DICTA

66

MAY 2015

PAGE

67

The BLC year in Obiter Dicta A number of BLC alumni have also received prestigious appointments this year, many congratulations to:

BLC NEWS AND EVENTS

Dr Wojciech Wiewiorowski, who has moved from his former post as Polish Data Protection Commissioner to take the position of European Data Protection Assistant Supervisor.

His new responsibilities include the supervision of the European Institutions and bodies in their collection and use of personal data as well as playing a consultative and advisory role in the formation of policy/ drafting of legislature measures in this area by the EU institutions.

Professor Michal Bobek, who has been nominated as the first Advocate General of the Czech Republic at the Court of Justice of the EU, as part of a partial replacement of Court members in Luxembourg this year.

Michal is not only an alumni of the BLC for whom he has given many guest lectures but is also a former competitor and now a regular member of the CEEMC judging panel.

Fingers and toes crossed for you all in facing your new challenges with wishes for continuing success‌ from all your supporters at the BLC!!!

OBITER

DICTA

67

MAY 2015

PAGE

BLC NEWS AND EVENTS

Recruitment has begun!

OBITER

Spread the word to your friends and colleagues‌tell them to apply now !!!

DICTA

68

68

BLC Information

MAY 2015

OBITER

Juris Angliae Scientia Ltd is a charitable foundation set up in 1992 with the objects of promoting education links between the United Kingdom and Poland.

JAS has functioned as the engine for promoting and supporting the activities of the BLC, initially in Poland widening to other parts of Central and Eastern Europe.

The current managing committee includes Professor W.R. Cornish, Professor R. Fentiman, Dr J. Morgan (Law Faculty, University of Cambridge), Professor R. Nolan (University of York) and Dr J Davis with Lord Robert Cornwath, Justice of the Supreme Court holding the position of Chair of the Members of JAS Ltd.

Juris Angliae Scientia Ltd

10 West Road Cambridge England Find us online at www.britishlawcentre.co.uk Phone: +48 22 52 7278 E-mail:editorial@britishlawcentre.co.uk

Footnotes to articles are not included in Obiter Dicta. If you wish to read any article inclusive of footnotes please contact the editor via the contact details provided.

DICTA

69