1. law, govt and politics

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
€130,000 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
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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.
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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.
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
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
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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?”
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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.
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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
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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)
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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
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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
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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
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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.
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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
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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…’
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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
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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
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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
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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”.
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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.
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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
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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!!
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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-
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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
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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
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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.
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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
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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
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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
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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.
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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”.
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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
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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)
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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,
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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.
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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)
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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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!!!!)
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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
[email protected]
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
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The BLC year in Obiter Dicta
BLC NEWS AND EVENTS
BLC MEMBERS AND ALUMNI NEWS
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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.
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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!!!
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BLC NEWS AND EVENTS
Recruitment has begun!
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Spread the word to your
friends and colleagues…tell
them to apply now !!!
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BLC Information
MAY 2015
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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:[email protected]
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.
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