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Global Legal Monitor
Updated: 1 hour 33 min ago

Sweden: Criminal Rape Investigation of Julian Assange Reopened

Fri, 24/05/2019 - 17:30

(May 24, 2019) On May 13, 2019, the Swedish Prosecution Authority announced that it would reopen the investigation into the accusations of rape against Julian Assange. (Press Release, Åklagarmyndigheten, Förundersökningen i Assangeärendet återupptas [Swedish Prosecution Authority, Preliminary Investigation in the Assange Case Reopened] (May 13, 2019); Åklagarmyndigheten, Beslut [Decision] AM-131226-10 (May 13, 2019), Swedish Prosecution Authority website.)

Background

In December 2015, Sweden and the Republic of Ecuador made an agreement on mutual legal help in criminal cases. (Avtal med Ecuador om ömsesidig rättslig hjälp i brottmål [Agreement with Ecuador on Mutual Legal Assistance in Criminal Cases] Sveriges internationella överenskommelser [SÖ, Sweden’s International Agreements] 2015:30.) Under that agreement, an interrogation (förhör) of Julian Assange was conducted by an Ecuadorian prosecutor at the Ecuadorian Embassy in London. Swedish police and prosecutors were present. (Beslut AM-131226-10.)

In 2017 the Swedish Prosecution Authority decided to discontinue the investigation because there was “no reason to believe the decision to surrender [Assange] to Sweden can be executed in the foreseeable future.” (Åklagarmyndigheten, Decision 19 May 2017 (unofficial English translation); see also Elin Hofverberg, Sweden: Swedish Prosecutors Discontinue Assange Investigation, GLOBAL LEGAL MONITOR (June 2, 2017).)

Following Assange’s arrest by British authorities, the counsel for the plaintiff (målsägandens ombud) requested that the preliminary investigation (förundersökning) of the rape charges be resumed and that the investigation (utredning) be continued.

The Prosecution Authority therefore reconsidered the reasons for discontinuing the investigation and found that the following events now made it possible for Assange to be transferred to Sweden: the UK authority’s arrest of Assange; his sentencing to 50 weeks of imprisonment in the UK; and the request by the United States to extradite Assange to the United States, requiring a formal request to that effect  presented no later than June 14, 2019. (Beslut AM-131226-10.)

The Prosecution Authority believes that several avenues for the continued investigation exist. For example, Swedish law allows for an interview to take place via video link, which would allow UK authorities to keep Assange in the UK while the Swedish prosecutor interviewed him from Sweden. Such a procedure, however, would require Assange’s consent (samtycke). (LAG OM EN EUROPEISK UTREDNINGSORDER [ACT ON AN EUROPEAN ARREST WARRANT] (SVENSK FORFATTNINGSSAMLING [SFS, SWEDISH CODE OF STATUTES] 2017:1000), Riksdagen [Parliament] website; Beslut AM-131226-10.)

In consideration of the circumstances mentioned above, the Prosecution Authority now believes that the conditions for a continuation of the investigation and completion of the investigation are feasible. (Beslut AM-131226-10.)

The Prosecution Authority also noted that all the conditions for an arrest warrant still apply. Assange is still a suspect, on probable cause, in the Swedish rape case (a crime with a prescribed sentence of more than one year). In addition, as Assange is now under arrest in the United Kingdom, the conditions for the fulfillment of a European Arrest Warrant can be met. (Beslut AM-131226-10.)

However, the Prosecution Authority in its decision noted that if UK authorities are faced with competing arrest warrants from Sweden and the United States, it is the British authorities that would decide to which country Assange should be delivered. (Beslut AM-131226-10.)

 

Germany: Prescription Drugs Cannot Be Sold Via Video Chat and Vending Machines

Fri, 24/05/2019 - 14:30

(May 24, 2019) In a decision published on May 11, 2019, the Administrative Court of Karlsruhe (Verwaltungsgericht Karlsruhe, VG Karlsruhe) held that the Dutch mail order pharmacy DocMorris cannot use vending machines in Germany to sell drugs that are authorized for sale only through pharmacies. The Court stated that vending-machine sales were not covered by the Dutch government’s authorization of the plaintiff to operate a mail order pharmacy, but required an authorization to operate a local pharmacy. (VG Karlsruhe, Apr. 4, 2019, Docket No. 3 K 5393/17, ECLI:DE:VGKARLS:2019:0404.3K5393.17.00, Landesrechtsprechung Baden-Württemberg website (in German); Arzneimittelgesetz [AMG] [Medicinal Products Act], Dec. 12, 2005, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3394, § 43, para. 1, § 73, para. 1, as amended, German Laws Online website.)

Applicable Law

Section 43 of the German Medicinal Products Act provides that “[m]edicinal products […], which are not released for trade outside of pharmacies […] may[…] be placed on the market professionally or commercially to the consumer exclusively in pharmacies and not by sale at a distance without official authorisation.”

Section 73, paragraph 1, states that

(1) [m]edicinal products which are subject to compulsory marketing authorisation […] may only be introduced into the purview of the present Act, if they are authorised for marketing […] or if they have been exempted […] and if

1a.       in the case of shipment to the final consumer, the medicinal product is shipped, according to the German regulations governing sale at a distance or electronic commerce, by a pharmacy of a Member State of the European Union […] which is authorised to conduct sale at a distance under its national laws, in so far as they correspond to German pharmacy law as regards the provisions governing sale at a distance, or according to the German Act on Pharmaceutical Services.

Facts of the Case

The plaintiff is a Dutch mail order pharmacy. (VG Karlsruhe para. 2.) Since April 19, 2017, the plaintiff has offered pharmaceutical video consultations with drug delivery in the municipality of Hüffenhardt, Germany. (Id. para. 3.) For that purpose, customers, who were sitting in an office space formerly occupied by a pharmacy in Hüffenhardt, were connected via video chat to a pharmacist or pharmaceutical assistant in the Netherlands. After the consultation, the Dutch pharmacist or pharmaceutical assistant would check the scanned-in prescription, among other things, and decide whether to dispense the requested drug via a drug vending machine located on the premises and connected to the pharmaceutical warehouse in Hüffenhardt. (Id. paras. 5–7.)

On April 21, 2017, the Regierungspräsidium Karlsruhe, the head of the administrative region of Karlsruhe, decided that the plaintiff would no longer be allowed to use vending machines to dispense drugs that are required to be sold through pharmacies, as this was a violation of the German Medicinal Products Act and was not covered by the plaintiff’s authorization to conduct a mail order business. (Id. paras. 3, 11, 12.)

On April 26, 2017, the plaintiff filed suit with the Administrative Court of Karlsruhe against the prohibition order. (Id. para. 15.) The plaintiff mainly argued that dispensing prescription drugs via video chat was covered by its Dutch authorization to operate a mail order pharmacy because the term “mail order” must be broadly interpreted and includes innovative new procedures, such as same day delivery. (Id. para. 16.) In addition, the plaintiff alleged that the prohibition violated European Union (EU) law. (Id. paras. 22 & 23.)

Decision

The Court held that the Regierungspräsidium Karlsruhe was justified in prohibiting the distribution of prescription drugs via video chat and vending machine. It stated that the distribution of prescription drugs violated section 43, paragraph 1 of the Medicinal Products Act, because neither did the plaintiff have an authorization to operate a traditional local pharmacy nor did the distribution via vending machine constitute a sale by mail order. (Id. para. 46.) According to its own submission, the plaintiff did not have an authorization to operate a traditional local pharmacy and did not consider it necessary. (Id. para. 49.)

The Court added that the distribution via vending machine, however, was also not a sale by mail order. It explained that the term “mail order” is not statutorily defined, but it is generally understood as delivering the product to the consumer and not just retrieving it from the connected warehouse and handing it over to the consumer. There is generally a certain time span between the purchase and the handing over of the product. In the case at issue, however, the customer has the possibility to take the product home directly from the place where the video consultation took place. This creates the appearance of a local traditional pharmacy and not a mail order pharmacy. (Id. paras. 56 & 77.)

The Court further held that the prohibition does not violate EU law, in particular the principle of free movement of goods. (Id. para. 121.) Article 34 of the Treaty on the Functioning of the European Union (TFEU) provides that “[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2016 O.J. (C 202) 1, EUR-Lex website.) Article 36 of the TFEU enumerates several grounds on which such restrictions are justified. In the opinion of the Court, the prohibition constitutes a measure having an equivalent effect but is justified on the grounds of protection of the health and life of humans. (VG Karlsruhe paras. 124 & 128.) The Court ruled, in accordance with the jurisprudence of the European Court of Justice, that the requirement that only pharmacists may operate pharmacies and the consequent resulting restriction on the freedom of movement of goods are justified by the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality. (Id. para. 129.) The EU Member States have the power to determine the appropriate level of protection of public health. (Id. paras. 132 & 133.)

Brazil: City of São Paulo Enacts Degree Regulating Use of Electric Scooters

Thu, 23/05/2019 - 14:30

(May 23, 2019) After a series of accidents involving electric scooters (patinete elétrica), the mayor of the city of São Paulo on May 13, 2019, enacted Decree No. 58,750. This Decree provides for the provisional regulation of sharing services and use of both electric and nonelectric self-propelled personal mobility equipment, scooters, cycles, and similar equipment that are operated by digital platforms in the city of São Paulo. (Legislação Municipal, Prefeitura de São Paulo, Decreto No. 58.750, de 13 de Maio de 2019, São Paulo Mayor’s Office website.)

Decree No. 58,750 determines that companies providing these services must register with the Municipal Department of Mobility and Transportation and prove that their operational structure complies with the rules established in Decree No. 58,750 and regulatory ordinances. (Id. art. 2.) The operational structure includes employees; equipment to be made available to users; infrastructure to collect, perform corrective and preventive maintenance on equipment and attend to users in the event of accidents or equipment failure; and places to collect and store equipment. (Id. art. 2(sole para.).)

The Decree defines the obligations of such companies, which include, but are not limited to, providing users with safety instructions; proving that the company holds civil liability insurance to cover any damages caused to third parties or public assets arising from the use of individual mobility equipment; bearing all damages arising from the rendering of the service, even if generated by a fortuitous event, force majeure, or the deceit or fault of users; and providing data on users in response to requests by the municipal or public security organs investigating crimes, misdemeanors, or accidents. (Id. art. 3.) It also holds the operating companies responsible for providing the necessary equipment for the safety of users, including mandatory certified helmets. (Id. arts. 4 & 7(§ 3).)

The use of self-propelled personal mobility equipment, such as scooters and the like, even if electric, as well as mopeds, electric cycles, and similar equipment, must comply with the traffic rules contained in Resolution Nos. 315/2009 and 465/2013 of the National Traffic Council (CONTRAN) and in the Brazilian Traffic Code and other pertinent legislation, in addition to the provisions of Decree No. 58,750. (Id. art. 7.)

The use of the means of transportation specified in Decree No. 58,750 is allowed only on public roads, bicycle lanes, and cycle paths, with a maximum speed of 20 kph (12 mph). The use of such equipment on sidewalks is prohibited. Equipment parked on sidewalks by users must allow the free movement of pedestrians. It is forbidden to operate the equipment on roads at a speed greater than 40 kph (24 mph). (Id. art. 8.)

The Traffic Authority and agents of the municipal government are to supervise compliance with the provisions of Decree No. 58,750 and other norms of traffic legislation, with the support of the Metropolitan Civil Guard. (Id. art. 10.)

Decree No. 58,750 lists the penalties to be imposed on companies for failing to comply with the obligations set forth in article 3, which includes fines ranging from 100,000 Brazilian reals (R$) (about US$25.00) to R$20,000 (about US$5,000), as well as the loss of license to operate the business. (Id. art. 11.)

Mexico: Government Announces Legal Position on US Helms-Burton Law

Wed, 22/05/2019 - 14:30

(May 22, 2019) On May 8, 2019, the Mexican government announced it is considering taking measures to address the possibility of lawsuits filed in the US against Mexican companies trafficking in property confiscated by the Cuban government. (Press Release, Department of Foreign Relations, Posicionamiento del Gobierno de México sobre la entrada en vigor del Título III de la Ley Helms-Burton [Position of Mexico’s Government on the Enforceability of Title III of the Helms-Burton Act] (May 8, 2019).)

The government explained that it was spurred to consider such measures by the US government’s announcement in April 2019 that Americans could file lawsuits in US courts under the Helms-Burton Act against entities and persons trafficking in property confiscated by the Cuban government. (Id.; see also Press Release, The White House, President Donald J. Trump Is Taking a Stand for Democracy and Human Rights in the Western Hemisphere – Fact Sheet (Apr. 17, 2019).)

Measures responding to the US law would be taken under the authority of Mexico’s Law on Protecting Commerce and Investment from Foreign Laws. (Ley que Protege el Comercio y la Inversión de Normas Extranjeras que Contravengan el Derecho Internacional [Law on Protecting Commerce and Investment from Foreign Laws], as amended through 2012, DIARIO OFICIAL DE LA FEDERACIÓN (official gazette), Oct. 23, 1996, Mexican House of Representatives website.) The measures contemplated under this Law include the following:

  • Mexico’s Departments of Foreign Relations and Commerce would be permitted to provide advice to sued entities.
  • Mexican courts could deny requests to enforce foreign judgments or arbitral awards rendered under the Helms-Burton Act.
  • Mexican individuals, companies, and agencies would be prohibited from providing information requested from foreign authorities under the Helms-Burton Act, and those who disregard this prohibition would be subject to fines. (Posicionamiento del Gobierno de México sobre la entrada en vigor del Título III de la Ley Helms-Burton, supra.)

Italy: Legislation in the Event of Brexit Takes Effect

Tue, 21/05/2019 - 14:30

(May 21, 2019) On March 23, 2019, new legislation addressing the potential effects of Brexit entered into force in Italy. (Decree-Law No. 22 of March 25, 2019, Urgent Measures to Ensure Safety, Financial Stability and the Integrity of Markets as well as the Protection of the Health and Freedom of Residence of Italian Citizens and United Kingdom Citizens in case of Brexit) (Decree Law No. 22), GAZZETTA UFFICIALE [G.U., Official gazette], Mar. 25, 2019, G.U. website (in Italian).)

The new legislation approves comprehensive provisions aimed at regulating the possible impacts on multiple stakeholders in the event that the United Kingdom (UK) exits from the European Union (EU) without an accord with the EU (UK withdrawal).

Banks and Investment Firms

The new Law provides that, following the UK withdrawal, UK banks that are authorized to conduct operations in Italy in the same terms that Italian banks are authorized to carry out activities in the UK may continue carrying out such activities after notifying the Bank of Italy. (Decree Law No. 22, art. 3(1)–(2).)

UK banks and UK investment firms that, on the UK withdrawal date, provide investment services and activities in Italy, may continue to perform the same activities only with respect to qualified counterparties and professional clients as provided in applicable legislation. (Id. art. 3(3).)

Banking, financial, and other related entities operating in Italy remain bound by contractual extrajudicial dispute resolution mechanisms after the date of the UK withdrawal. Alternatively, these entities may adhere to other mechanisms established by the EU Commission-approved Fin-Net network. (Id. art. 7(2).)

UK banking institutions operating in Italy through branches will continue to be members of the guarantee systems established for Italian depositors regulated by current banking legislation. (Id. art. 8(1).)

UK payment institutions, fund managers, and investment banks operating in Italy under the current freedom of service regime at the time of the UK withdrawal must cease their activities on that date. (Id. art. 4(1).) To avoid prejudice to their existing clients, these institutions are authorized to carry out operations necessary to close their activities within the shortest possible time and within a maximum of six months from the UK withdrawal date, after complying with applicable contractual notices (Id.)

As an exception, UK banks and investment firms remain authorized to manage existing derivative over-the-counter contracts even if such activities involve the modification of existing contracts or the execution of new contracts. (Id. art. 4(4).)

UK payment institutions, fund managers, and investment banks that are that registered in Italy and that on the date of the UK withdrawal conduct businesses in the UK may continue to operate during the transitional period in accordance with UK legislation. (Id. art. 5(1).)

Electronic Money Institutions

Decree Law No. 22 provides that UK electronic money institutions operating in Italy under the current freedom of service regime at the time of the UK withdrawal must cease their activities on that date (id. art. 4(1)), but those operating through branches in Italy on the UK withdrawal date in accordance with the right of establishment may continue to operate during the transitional period after notifying the Bank of Italy (id. art. 3(5)).

Insurance Companies

Under the new Law, UK insurance companies authorized to operate in Italy on the date of the UK withdrawal will be excluded from the list of EU companies authorized to operate in the country, but will be permitted to carry out activities during the transitional period that are necessary to grant coverage to their insured under existing contracts. (Id. art. 9(1).)

Effective on the date of the UK withdrawal, the insured may withdraw from existing insurance contracts entered into with UK companies, without prejudice to the insured, provided that previous notice has been given to such companies under existing contracts. (Id. art. 9(3).)

Italian insurance and reinsurance companies operating in the UK on the date of the UK withdrawal may continue carrying out their activities in accordance with UK laws. (Id. art. 11(1).)

Pension Fund Investments

Investments arising from UK-based pension funds will continue to enjoy the same legal treatment after the UK withdrawal. (Id. art. 12(1).)

Germany: Government Proposes Loss of German Citizenship for Foreign Fighters with Dual Citizenship

Mon, 20/05/2019 - 14:30

(May 20, 2019) On May 3, 2019, the press services of the German Bundestag (parliament) reported that the German government had submitted a draft act to amend the rules on German citizenship so that foreign fighters with dual citizenship would automatically lose their German citizenship. (Press Release, German Bundestag, Loss of German Citizenship (May 3, 2019), German Bundestag website (in German); BT-Drs. 19/9736, German Bundestag website (in German); Staatsangehörigkeitsgesetz [StAG] [Nationality Act], July 22, 1913, REICHSGESETZBLATT [RGBl.] [REICHS LAW GAZETTE] I at 583, as amended, German Laws Online website.)

Content of Proposal

Currently, German citizenship is lost only if a person voluntarily joins the regular armed forces or a comparable armed organization of a foreign state. (Nationality Act § 17, para. 1, no. 5, § 28.) However, going abroad to actively fight for a foreign terrorist militia does not have any consequences. The proposal states that an amendment of the rules is necessary because fighting for a foreign terrorist organization equally means that someone has turned away from Germany and its fundamental values. (BT-Drs. 19/9736, at 1.) German citizenship would not be lost if the person concerned would thereby become stateless or were still a minor. (Id.)

The proposal defines “foreign terrorist militia” as a “paramilitary organized armed organization that, in violation of international law, aims to remove the structures of a foreign state by force and to establish new state or state-like structures in its stead.” (Id. at 4, art. 1, § 28, para. 3.)

The new rules would not apply to foreign ISIS fighters or fighters for other terrorist organizations who have fought for these groups in the past and who would like to return to Germany, as such retroactive rules would be unconstitutional. (Id. at 6.) However, as long as foreign ISIS fighters remain in the areas held by ISIS and the fight resurges after the amendment has entered into force, a loss of citizenship is generally possible. (Id.)

Italy: Law Regulating Duration of Administrative Processes Ruled Unconstitutional

Fri, 17/05/2019 - 14:30

(May 17, 2019) On February 6, 2019, the Italian Constitutional Court declared article 54, paragraph 2 of Decree-Law No. 112 of June 25, 2008 unconstitutional because the provision establishes an excessive duration for administrative procedures. In its decision, the Court highlighted that all legal procedures must have a reasonable duration. By declaring this provision unconstitutional, the Court was bringing Italian legislation regulating administrative procedures into compliance with European Union (EU) court decisions. (Decision No. 34 of February 6, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Mar. 13, 2019 (in Italian), G.U. website.)

Background of the Case

The Constitutional Court reviewed a constitutional question raised by the Court of Cassation and multiple appellate courts concerning a provision that affected the timing of administrative processes.

The Constitutional Court performed its review in light of article 117 of the Constitution, which provides that “[l]egislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations,” with 17 areas listed in which the State has “exclusive legislative powers.” (CONSTITUTION OF THE ITALIAN REPUBLIC, Dec. 27, 1947, as amended, Italian Senate website (in Italian), English translation as amended through 2012, Comparative Constitutions Project website.)

Reasoning of the Court

The Constitutional Court considered the principle of reasonableness applicable to the duration of administrative procedures established for damages claims against the public administration. (Decision, considerations of law 2.1 para. 1 & 3 para. 8.) If a party were to avail itself of filing all of the available administrative appeals shortly before their expiration date, that would bring about an unreasonable duration of administrative processes that would damage the other party. (Id.)

The Court cited case law from the EU Human Rights Court accepting the admissibility or preferableness of remedies to prevent making the duration of the administrative procedures excessively long. (Id. considerations of law 6.1, para. 1.) To reach its final determination, the Court also mentioned due process of law considerations as guaranteed by the Italian Constitution. (Id. considerations of law 6.4, para. 2.)

Holding of the Court

The Constitutional Court declared the unconstitutionality of the provision, thus bringing Italian legislation regulating administrative procedures into compliance with EU court decisions by providing for their reasonable duration.

Italy: Legal Provision Not Allowing Home Detention Ruled Unconstitutional

Thu, 16/05/2019 - 14:30

(May 16, 2019) On April 19, 2019, the Italian Constitutional Court declared unconstitutional article 47-ter, paragraph 1-ter of Law No. 354 of July 26, 1975, because it failed to provide for humanitarian home detention for convicted prisoners experiencing supervening serious mental illnesses. (Decision No. 99 of April 19, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure) (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Apr. 24, 2019) (in Italian), G.U. website; Law No. 354 of July 26, 1975, on the Penitentiary System and the Execution of Privative and Limiting Measures on Freedom, G.U. Aug. 9, 1975 (in Italian), G.U. website.)

Background of the Case

The Court of Cassation raised the issue of the constitutionality of article 47-ter, paragraph 1-ter of Law No. 354 of 1975 on the grounds that it did not provide for the benefit of home detention in the case of a convicted prisoner with serious mental illness that arose during the application of the penalty. (Decision, considerations of fact 1, para. 1.) The existing legislation allowed for home detention only in the case of serious physical—not mental—illness. (Id. considerations of fact 1, para. 2.)  In the underlying case, the convicted person had been sentenced to more than four years of imprisonment, which left him ineligible for measures alternative to incarceration. (Id. considerations of law 3.3, para. 1.) The prisoner presented severe mixed personality disorder, with predominant borderline disposition, psychopathological decompensation, and serious self-injuring behavior. (Id. considerations of fact 1, para. 2.)  For these reasons, the claimants argued that detention in regular jail facilities, as opposed to home detention, constituted inhumane treatment and thus violated several constitutional guarantees. (Id. considerations of fact 1, para. 4.)

Constitutional Question Posed

The Constitutional Court performed its review in light of articles 2, 3, 27, and 32 of the Constitution, which, in general, prohibit inhumane treatment and establish a convicted prisoner’s right to health. (Id. considerations of fact 4 para. 1 & 5 para. 2; CONSTITUTION OF THE ITALIAN REPUBLIC, Dec. 27, 1947, as amended, Italian Senate website (in Italian), English translation as amended through 2012, Comparative Constitutions Project website.)

Reasoning of the Court

The Court reasoned that recent legislative trends in Italy (e.g., the closure of judicial psychiatric hospitals and their replacement with other alternative detention measures) had created a historic momentum that caused the implicit derogation of the challenged provision. (Id. considerations of fact 3.1, para. 1.) Additionally, the Court noted a change in the cultural and scientific paradigm on the treatment of mental health issues from mere custody to therapy. (Id. considerations of law 3.1, para. 2.) The Court sustained that existing safety measures affecting persons subject to the criminal justice system cover only the situation of those who, on the basis of mental health issues, have been found not guilty or have received a reduced penalty, but not those who experience serious mental issues during compliance with their incarceration penalties. (Id. considerations of law 3.2, para. 2.) In this context, the Court reasoned that conditions are such that a “humanitarian” home detention is completely compatible with the public safety considerations connected to criminal punishment. (Id. considerations of law 2.2, para. 1.) Finally, the Court held that, according to current legislation, home detention in fact constitutes a modality for the execution of a penalty, a restriction on personal freedom resulting from a criminal punishment subject to monitoring by the authorities. (Id. considerations of law 5.1, para. 3.)

Holding of the Court

The Constitutional Court declared article 47-ter, paragraph 1-ter of Law No. 354 of 1975 unconstitutional because it contained no provision for a tribunal to authorize home detention for a convicted prisoner suffering from supervening mental illness who had more than four years of incarceration remaining to serve on his or her sentence.

Germany: De Facto Complete Exclusion of Stepchild Adoption for Unmarried Couples Held Unconstitutional

Wed, 15/05/2019 - 14:30

(May 15, 2019) In a decision published on May 2, 2019, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the fact that an unmarried stepparent cannot adopt his or her partner’s child without terminating the child’s legal relationship to the latter, thereby de facto excluding stepchild adoption in such cases, violates the equal treatment clause of article 3, paragraph 1 of the German Basic Law. The Court declared the relevant Civil Code provisions unconstitutional and instructed the legislature to enact new provisions by March 31, 2020. Until the new rules are enacted, the current law is not applicable to stepchild adoptions for unmarried couples. (BVerfG, Mar. 26, 2019, Docket No. 1 BvR 673/17, ECLI:DE:BVerfG:2019:rs20190326.1bvr067317, BVerfG website (in German); Press Release, BVerfG, Complete Exclusion of Non-Marital Families From Stepchild Adoption Is Unconstitutional (May 2, 2019), BVerfG website; Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, art. 3, para. 1, German Laws Online website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, § 1754, paras. 1 & 2, § 1755, paras. 1 & 2, German Laws Online website.)

Applicable Law

The relevant provisions of the German Civil Code currently provide that if a married couple adopts a child or if a spouse adopts the child of the other spouse, the child becomes the legal child of both spouses. In all other adoption cases, the child becomes the child of only the adoptive parent. (CIVIL CODE § 1754, paras. 1 & 2.) Furthermore, when the adoption takes effect, the relationship of the child and its descendants to the previous relatives is extinguished, with the exception of cases in which one spouse adopts the child of the other spouse. In such cases, the legal relationship is extinguished only with regard to the other relatives. (Id. § 1755, paras. 1 & 2.)

A request for adoption is granted only if the adoption is in the best interest of the child. (Id. § 1741, para. 1.) The family court must decide on a case-by-case basis and make a prediction. (Id. § 1752.) It must conduct the necessary inquiries to establish the facts that are relevant to the decision ex officio. (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit [FamFG] [Act on Proceedings in Family Matters and in Matters of Noncontentious Jurisdiction], Dec. 17, 2008, BGBl. I at 2586, 2587, as amended, § 26, German Laws Online website.) The family court is supported in its inquiries by adoption agencies and youth welfare offices. (Id. §§ 189, 194.)

Facts of the Case

Complainant no. 1 is the biological mother of two minor children to be adopted. The biological father of the children, who had been married to the mother, died in 2006. Since 2007, the mother and complainant no. 4 have been cohabiting. According to their testimony, they did not get married because complainant no. 1 would otherwise lose her widow’s pension, which she needs in order to live. The couple had a son together in 2009. (BVerfG para. 14.) In October 2013, they requested that the district court declare the two minor children their joint children. However, the district court denied the request, stating that there was no joint adoption for unmarried persons. Further appeals remained unsuccessful. (Id. at 15–18.)

Decision

The Federal Constitutional Court held that the Civil Code provisions at issue in the case do not violate article 6, para. 2 of the Basic Law (parental right) or article 2, paragraph 1 in conjunction with article 6, paragraph 2 of the Basic Law (right to the guarantee of parental care and upbringing); however, the Civil Code provisions do violate the equal treatment clause of article 3, paragraph 1 of the Basic Law, because they unjustifiably disadvantage children in families in which the couple are not married. (Id. at 48 & 61.)

The Federal Constitutional Court reiterated that for a difference in treatment in such a case to be justified, it must pass a strict proportionality test. (Id. at 65.) By categorically excluding a joint adoption in families in which the couple are not married without examining the particular circumstances of the case, children in such families are disadvantaged. It negatively affects the development of their personalities and excludes the possibilities and advantages that would have been available by allowing the factual parent to become a joint legal parent. (Id. at 66.)

The Court stated that the aim of the legislature—to avoid unfavorable family situations and to limit adoptions to stable relationships—is legitimate. (Id. at 76.) However, in the case of stepchild adoptions, the child already lives with the nonbiological parent, and the complete exclusion of stepchild adoptions therefore does not achieve the desired aim. (Id. at 78 & 82.) Furthermore, even though a marriage generally signifies stability, the current legal provisions assume that relationships of unmarried couples are never stable, which does not reflect reality. (Id. at 96, 97 & 120.) The Court held that a complete exclusion of unmarried couples from stepchild adoption is not justified, because less restrictive means could achieve the desired purpose to limit adoptions to stable relationships. (Id. at 102.) The Court suggested that the legislature could ensure that the best interests of the child were protected and that the child would grow up in a stable relationship by providing for an adoption framework based on specific stability prognoses in case-by-case decisions. (Id. at 105.) It added that, in addition to an existing marriage, the legislature may use alternative stability indicators such as a minimum relationship duration. (Id. at 106, 107 & 122.) Finally, the Court pointed out that an adoption request is always decided on a case-by-case basis. (Id. at 122.)

New Zealand: Zero Carbon Bill Introduced

Tue, 14/05/2019 - 14:30

(May 14, 2019) On May 8, 2019, New Zealand’s Minister for Climate Change, James Shaw, introduced the Climate Change Response (Zero Carbon) Amendment Bill in the Parliament. (Climate Change Response (Zero Carbon) Amendment Bill, NEW ZEALAND PARLIAMENT (last visited May 8, 2019); Climate Change Response (Zero Carbon) Amendment Bill, New Zealand Legislation website.) The explanatory note accompanying the bill states that its purpose is “to provide a framework by which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5° Celsius above pre-industrial levels.” (Climate Change Response (Zero Carbon) Amendment Bill: Explanatory Note, New Zealand Legislation website).

The proposed bill was subject to a six-week public consultation process in 2018, with more than 15,000 submissions received by the government during that period. (Ministry for the Environment, Our Climate Your Say!: Summary of Submissions 6 (Oct. 2018). See also Ministry for the Environment, Our Climate Your Say!: Discussion Document (June 2018).)

The Ministry for the Environment states that the bill, referred to as the “Zero Carbon Bill,” will do four key things:

  • Set a new greenhouse gas emissions reduction target to:
    • reduce all greenhouse gases (except biogenic methane) to net zero by 2050
    • reduce emissions of biogenic methane within the range of 24–47 per cent below 2017 levels by 2050 including to 10 per cent below 2017 levels by 2030.
  • Set a series of emissions budgets to act as stepping stones towards the long-term target.
  • Require the Government to develop and implement policies for climate change adaptation and mitigation.
  • Establish a new, independent Climate Change Commission to provide expert advice and monitoring to help keep successive governments on track to meeting long-term goals. (Proposed Climate Change Response (Zero Carbon) Amendment Bill, MINISTRY FOR THE ENVIRONMENT (last updated May 8, 2019).)

In a press release, Prime Minister Jacinda Ardern further explains that

“[c]arbon dioxide is the most important thing we need to tackle – that’s why we’ve taken a net zero carbon approach.

“Agriculture is incredibly important to New Zealand, but it also needs to be part of the solution. That is why we have listened to the science and also heard the industry and created a specific target for biogenic methane.

“The split gases approach we’ve agreed on is consistent with that commitment.

“The Bill sets a target for 10 per cent reduction in biological methane emissions by 2030, and aims for a provisional reduction ranging from 24 per cent to 47 per cent by 2050.

“That provisional range will be subject to review by the independent Climate Change Commission in 2024, to take account of changes in scientific knowledge and other developments.

“The independent Climate Change Commission, established by the Bill, will support our emissions reduction targets through advice, guidance, and regular five-yearly “emissions budgets”.

“The Bill also creates a legal obligation on the Government to plan for how it will support New Zealand towns and cities, business, farmers and Iwi to adapt to the increasingly severe storms, floods, fires and droughts we are experiencing as a result of climate change. (Press Release, Jacinda Ardern, Landmark Climate Change Bill Goes to Parliament (May 8, 2019), official New Zealand Government website.)

The Prime Minister invited the public to participate in the parliamentary select committee process for the bill and indicated that it would be passed in 2019. (Id.)

New Zealand has an existing emissions trading system—the New Zealand Emissions Trading Scheme (NZ ETS). The bill’s explanatory note states that this will be “a key tool in meeting emissions budgets and achieving the 2050 target” and that a number of improvements to the NZ ETS will be progressed through the bill, including price-control measures. (Explanatory Note, supra. See also About the New Zealand Emissions Trading Scheme, MINISTRY FOR THE ENVIRONMENT (last updated Aug. 13, 2018).)

Ukraine: Legislature Adopts Language Law

Mon, 13/05/2019 - 14:45

(May 13, 2019) On April 25, 2019, the Verkhovna Rada (Ukraine’s legislature) adopted a law enhancing the role of Ukrainian as a state language. (Proekt Zakonu Pro Zabespechennya Funktsionuvannya Ukrainskoi Movi Yak Derzhavnoi [Law on Ensuring the Functioning of the Ukrainian Language as a State Language], Verkhovna Rada website (scroll down and click “Tekst zakonoproektu do druhoho chytannya 18.02.2019”).) The new Law establishes the legal foundations of state linguistic policy. This Law replaced the 2012 Law on the Principles of State Language Policy, which had been declared unconstitutional by the Constitutional Court in February 2018 because “the procedure for the consideration and adoption of the Law established by the Constitution was violated.” (Summary to the Decision of the Grand Chamber of the Constitutional Court of Ukraine No. 2-r/2018 Dated February 28, 2018 in the Case Upon the Constitutional Petition of 57 People’s Deputies on Conformity of the Law of Ukraine “On the Principles of State Language Policy” to the Constitution of Ukraine, Feb. 28, 2018, Constitutional Court of Ukraine website.)

The goal of the new Law is to strengthen the role of the Ukrainian language in state-building, ensuring the territorial integrity of Ukraine, and promoting national security. (Law on Ensuring the Functioning of the Ukrainian Language as a State Language, preamble.) The Law reaffirms the status of the Ukrainian language as the state language, as provided for in the Constitution. (Law on Ensuring the Functioning of the Ukrainian Language as a State Language art. 1(4); CONSTITUTION OF UKRAINE, 1996, art. 10, official Ukrainian Government Portal website.)

According to the Law, the use of Ukrainian is mandatory throughout the entire territory of Ukraine “in the exercise of powers by public authorities and local self-government bodies, as well as in other spheres of public life, as defined by this Law.” (Law on Ensuring the Functioning of the Ukrainian Language as a State Language art. 1(9) (translation by author).) The Law prohibits actions aiming to introduce multilingualism at the official level (granting any other language besides Ukrainian official status) and views these attempts as unconstitutional—identical to actions aimed at forcibly overthrowing constitutional order. (Id. art. 1(6).)

The Law also obligates every citizen of Ukraine to speak the state language. (Id. art. 6(1).) Acquisition of Ukrainian citizenship is subject to presenting certification of Ukrainian language proficiency. (Id. art. 7.) The state provides opportunities for citizens to master Ukrainian through its system of preschool, secondary, vocational, higher, and adult education, as well as through support for informal education aimed at studying the language. (Id. art. 4(2).) The Law mandates the use of Ukrainian by officials and representatives of the executive, legislative, and judicial branches of government, as well as persons working in medical and educational settings. (Id. art. 9.) It also requires that Ukrainian be used in all official bodies, meetings, and legal documents, including those of the Autonomous Republic of Crimea. (Id. arts. 12, 13.)

The new Law requires that, from 2023, education must be conducted in Ukrainian. In addition to their Ukrainian language classes, persons belonging to national minorities or indigenous peoples have the right to conduct education in their respective native languages through the formation of classes (grup(s)). (Id. art. 21.) Additionally, certain classes can be conducted in languages other than the state language (for example, English or other official languages of the European Union). (Id.) Works of science, art, and culture are to be presented in the state language, and the print media must use the state language. (Id. arts. 22, 23, 25.) Scientific and cultural events that are not conducted in the state language must be accompanied by translation into the state language. (Id.) This requirement applies to works of cinematography and museum exhibits. (Id. art 23.) Movie theaters have the right to show subtitled foreign-language movies. Such movies, however, should make up no more than 10% of all public film screenings in the country. (Id. art. 23(6).) Broadcasts in the language of the Crimean Tatars or other languages of indigenous people should not exceed 30% of all broadcasts. (Id. art 24(3).) Goods sold in Ukraine (including computer programs) must have descriptive user interfaces in the state language. (Id. art. 26.) At least 50% of all books available for sale in bookstores are to be in the state language. (Id. art 27.)

According to Article 43 of the Law, the National Commission on the Standards of the State Language is the authorized body for setting policies, establishing standards, and overseeing tests and certification in the state language, as well as providing for enforcement legislation. The Law also establishes the position of the Commissioner for the Protection of the State Language. (Id. art. 49.) The Commissioner, who is appointed by the Cabinet of Ministers, must be at least 35 years of age, possess higher education, have full command of both the state language and English, and have had work experience in the field of human rights. (Id. art. 49(4).) The Commissioner for the Protection of the State Language can initiate language inspections aimed at investigating and identifying violations of the Law. (Id. art. 58.) The inspector is to issue mandatory rulings based on the results of the inspection, which can be appealed in court. (Id. art. 59.) Violations of the Law are subject to fines prescribed in the Code of Administrative Violations. (Id. art. 59, sec. VIII, art. 2.1.)

Italy: New Law Aiding Reconstruction Following Earthquakes Takes Effect

Fri, 10/05/2019 - 21:00

(May 10, 2019) On April 19, 2019, new legislation on public procurement and on aiding the recovery of areas hit by earthquakes entered into force in Italy. (Decree Law No. 32, Urgent Provisions for Revitalizing the Public Contracts Sector, [and] for Accelerating Infrastructure Interventions, Urban Regeneration and Reconstruction After Seismic Events) (D.L. No. 32), GAZZETTA UFFICIALE [G.U.], Apr. 18, 2019, G.U. website (in Italian).)

Provisions Addressing Reconstruction Initiatives in Areas Hit by Earthquakes

D.L. No. 32 regulates procedures and modalities for repairing, demolishing, and reconstructing public buildings, churches, and religious facilities owned by ecclesiastical entities recognized by civil law, as well conducting interventions on property belonging to the national artistic and cultural heritage. (D.L. No. 32, art. 13(1).) To simplify procedures for structural interventions in seismic areas, the Law confers on the respective regional technical office the responsibility for determining the minimum content of a project, ensuring that the project complies with applicable technical standards, and ensuring that the structure and architecture of reconstructed facilities cohere. (Id. art. 3(1)(c).)

The Law contains specific provisions for ameliorating the dire condition of Sicily’s railroads (id. art. 4(6)) and appoints a Special Commissioner for reconstructing the municipal territory of the Campobasso province in the Molise region and the Etnea area (which were hit by the earthquake of August 16, 2018) and the Metropolitan City of Catania (which was struck by the earthquake of December 26, 2018) (id. art. 6(2)). Also mandated are the acceleration of plans for the public reconstruction of the Abruzzo, Lazio, Marche, and Umbria regions, which were damaged by seismic events in 2016 and 2017 (id. art. 23) and an additional financial contribution to tackle the devastation caused at the Commune of L’Aquila (id. art. 21).

With respect to the reconstruction of private buildings, the Law authorizes the Special Commissioners to identify the patrimonial damage caused by the earthquakes and establish reconstruction priorities. (Id. art. 9(1).) Under certain financial, architectural, structural, and other conditions, the financial contribution for reconstructing destroyed or seriously damaged buildings may cover 100% of the reconstruction costs. (Id. art. 10(1)(a).)

Specific Provisions for Reparation and Reconstruction of Damaged or Destroyed Buildings

Approval for the contributions for repairing and reconstructing buildings for residential, nonresidential, commercial, or agricultural use; buildings for public or private services; or buildings “of strategic interest” must be based on damage caused by seismic activity in the areas identified in the applicable legislation. (Id. art. 11(1)(a)–(b).)

Finally, D.L. No. 32 contemplates contributions to private individuals and businesses for the recovery of damaged buildings. (Id. art. 15.)

Russia: Government Expanding Vaccination for Measles Amid Outbreak in Neighboring Countries

Thu, 09/05/2019 - 14:50

(May 9, 2019) On March 6, 2019, the chief state sanitary physician of the Russian Federation issued a resolution requiring that vaccination for measles be expanded in the territory of the Russian Federation to cover those who, for a number of reasons, have previously gone unvaccinated. (Postanovleniye Glavnogo Sanitarnogo Vracha R.F. ot 6-ogo Marta, 2019 g. No 2 “O Provedenii Podchishayushei Immunizatsii Protiv Kori na Terriorii Rossiskoi Federatsii” [Resolution of the Chief Sanitary Physician of the Russian Federation on Conducting Outstanding Measles Immunizations in the Territory of the Russian Federation] (Resolution) No. 6, adopted on Mar. 6, 2019, Rospetrebnadzor [Federal Service for Control of Consumer Protection Rights and Human Well-Being] website.)

According to data from Rospetrebnadzor, 1,717 cases of measles were registered in the territory of the Russian Federation from January to June 2018, which is substantially higher than the numbers of cases from previous years. (Data on Infectious and Parasite-Induced Illnesses from January-June 2018, June 17, 2018, Rospotrebnadzor website (in Russian).) Additionally, the World Health Organization has included the Russian Federation in the group of seven European countries where 1,000 or more cases of measles were recorded in the first eight months of 2018. (Measles Cases Hit Record High in the European Region, WORLD HEALTH ORGANIZATION (Aug 20, 2018).) While the resolution did not introduce mandatory immunization, it calls for broadening the reach of immunization efforts, especially targeting people with no prior record of immunization, those who resist immunization, and migrant workers. The need for the current campaign is based on the thousands of registered measles cases in neighboring countries (Ukraine and Georgia). In Ukraine alone more than 30,000 people were infected, with fatalities registered. (Irina Nevinnaya, Not Vaccinated and Dangerous, ROSSIISKAYA GAZETA (Mar. 11, 2019).)

According to the resolution the following measures must be implemented:

  • From April 1 to October 10, 2019, the highest-ranking officials of the constituent components of the Russian Federation are to carry out immunization campaigns in the constituent components. Those targeted for immunization must include unvaccinated migrant workers. (Resolution § 1.1.)
  • From April 2019 to October 2019 vaccination campaigns aimed at immunizing people who were not previously vaccinated in accordance with the immunization calendar are to be carried out. (Id. § 4.1.)
  • Allocations for procuring live measles vaccine must be included in constituent component budgets in order to meet the demands of the population. (Id. § 1.3.) The resolution also calls for stockpiling vaccines on the basis of immunization campaign demands. (Id. § 4.2.)

To prepare for the expanded immunization campaign and reduce the number of people resisting immunization, the resolution calls for reassessing the validity of medical waivers to vaccination that people present. (Id. §§ 1.2 & 2.3.) These measures were to be implemented by March 25, 2019. (Id.)

Additionally, the resolution prescribes identification of vulnerable segments of the population (both children and adults), people leading nomadic lifestyles and/or those without permanent residency, refugees, internally displaced people, migrants, and those who did not receive scheduled vaccinations and who do not have immunity to measles. (Id. § 2.2.)

According to the resolution, employers of foreign nationals have until December 31, 2019, to complete vaccinating their foreign national employees who do not have certificates of prior vaccination or who have not developed immunity to measles. (Id. § 3.)

Rospotrebnadzor will oversee the implementation of the immunization campaign and provide for proper transportation and storage of vaccines. (Id. § 5.)

The Press Service of the National Immunobiological Company, the main supplier of vaccines in the Russian Federation, has announced that regions will receive necessary supplies of vaccines in a timely manner. (Regions Have Already Received Measles Vaccine in the First Quarter of 2019, NATIONAL IMMUNOBIOLOGICAL COMPANY (Mar. 5, 2019) (in Russian).)

Mexico: Constitutional Amendment on National Guard Enacted

Wed, 08/05/2019 - 14:45

(May 8, 2019) On March 26, 2019, the Mexican government published a constitutional amendment that provides for the creation of Mexico’s National Guard. (Decreto el que se reforman, adicionan y derogan diversas disposiciones de la Constitución Política de los Estados Unidos Mexicanos, en materia de Guardia Nacional [Decree Amending the Constitution in the Matter of the National Guard], DIARIO OFICIAL DE LA FEDERACIÓN [D.O.F.], Mar. 26, 2019, Mexican House of Representatives website.

Under this amendment, the National Guard is to be formed with officials from the Federal Police, Military Police, and Naval Police, per executive orders to be issued by the President. (Id. art. 2 transitorio.) Within 60 days of the enactment of the amendment, Mexico’s Congress is to pass a Law on the National Guard, which will regulate the Guard’s powers. (Id. art. 1 transitorio.) Once this Law has been issued, the National Guard will take over the investigative and law enforcement powers of Mexico’s Federal Police. (Id. art. 2 transitorio.)

The Federal Police has the power to conduct criminal investigations under the direction and command of federal prosecutors in a manner that allows the evidence gathered to be admitted in pertinent court proceedings. (Ley de la Policía Federal [Law on the Federal Police], as amended through 2011, arts. 4(VI) & 45, D.O.F., June 1, 2009, House of Representatives website.)

Under the Mexican Constitution, federal prosecutors have the authority to pursue federal criminal cases in court and present pertinent evidence therein. (CONSTITUCIÓN POLÍTICA DE LOS ESTADOS UNIDOS MEXICANOS [POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES], as amended through 2019, art. 102-A(VI), D.O.F., Feb. 5, 1917, House of Representatives website.)

The Federal Police also have broad preventive policing powers, including covert operations, intelligence gathering in public places, monitoring public internet sources, and patrolling in public places subject to federal jurisdiction, such as borders, customs offices, airports, and federal buildings. (Id. art. 8(III), (VI), (VII), (XXXVI), (XLII).)

Russia: Government Introduces Bill to Regulate Greenhouse Gas Emissions and Absorption

Tue, 07/05/2019 - 21:25

(May 7, 2019) In December 2018, the Russian Federation’s Ministry of Economic Development drafted a bill on state regulation of emissions and absorption of greenhouse gases. (Federal’nii Zakon o Gosudarstvennom Regulirovanii Vibrosov i Pogloshenii Parnikovikh Gazov i o Vnesenii Izmenenii v Otdel’nie Zakonodatel’nie Acti Rossiiskoi Federatsii. Proekt [Federal Law on State Regulation of Emissions and Absorption of Greenhouse Gases and on Amending Select Legislative Acts of the Russian Federation. Draft], Dec. 4, 2018, Federal Portal of Draft Regulations website.

The goal of the bill is to create conditions for reducing greenhouse gas emissions while providing for the sustainable economic development of the Russian Federation in accordance with the country’s international obligations. (Id. art. 1.) The state would regulate emissions of greenhouse gases by establishing targets for reduced direct emissions and/or increased absorption of greenhouse gases for the Russian Federation in general and across various sectors of the economy in particular. The government is proposing a permit system for direct emissions of greenhouse gases; economic mechanisms to regulate emissions and absorption, including mechanisms of transfer and trading of units of emissions and absorption; and taxation privileges. (Id. arts. 3, 4(4), 13.)

Authorities of Government Bodies

Regulation of emissions and absorption of greenhouse gases would be divided among the ministries of the federal government, federal executive agencies, and agencies of the Russian Federation’s constituent components. (Id. arts. 4, 5, 6.)

According to the bill, the government of the Russian Federation would establish a list of greenhouse gases subject to regulation, along with targeted indicators for direct emissions for a defined period. It would also create a procedure for permit issuance, formulate the reporting mechanism and its format, and set the payment amount and accounting rules. (Id. art. 4.)

The bill also proposes that federal executive agencies issue time-sensitive permits for direct emissions, approve methodology for qualitative assessment of direct emissions, and accredit entities involved in verifying emissions and absorption reports. (Id. art. 6.)

The constituent components of the Russian Federation would also draft and adopt enabling legislation, regulations, and climate adaptation measures at the regional and local level. (Id.)

Accounting for Emissions and Absorption

The bill calls for the adoption of a nationwide system of accounting for greenhouse emissions and absorption. The system would include a registry of projects implemented in the area of emissions reductions and absorption increases, direct emissions permits, and units of emission control. The greenhouse emissions accounting system would be charged with monitoring direct emissions and providing long-term projections for anticipated emissions. (Id. art 7.)

Rights and Obligations of Regulated Entities

Regulated entities would conduct an inventory of direct emissions and pay fees for emissions in excess of established limits if the emissions were not offset by increased absorption. (Id. art. 8.) These entities would also initiate and implement projects aimed at reducing emissions and increasing absorption of greenhouse gases, and transferring or trading emissions and absorption units. (Id. art. 9.)

Economic Measures

Economic regulation measures provided in the bill include accelerated depreciation of fixed assets, a favorable tax regime, offsetting costs for implementing projects by regulated entities, and trading and transferring emissions units. (Id. arts. 11, 13.) These transactions would be exempt from value-added tax but subject to financial and accounting reporting. (Id. art. 13.) Should emission amounts exceed the limits specified in the permit, the regulated entity would pay a fee calculated per ton (approximately 2,204.6 pounds) of CO2-equivalent over the mass of permissible emissions. (Id. art. 14.)

Mass Information Actions

The bill provides for a mass-media campaign to inform the public about climate change and its impact. (Id. art. 17.)

Reactions to the Bill

The bill has received a mixed reception. Environmental nongovernmental organizations, such as the World Wild Fund for Nature and Greenpeace, have expressed their approval for state regulation of greenhouse emissions. (RSPP Poluchil Klimaticheskuju Ustanovku, Belij Dom Godovit Promishlennikam Ekonomicheskie Meri Dlja Snizheniya Vibrosov [RSPP Receives Climate Setting, White House Readying for Industrialists’ Economic Measures for Reducing Emissions], KOMERSANT (Mar. 3, 2019.) However, representatives of the Russian Union of Industrialists and Entrepreneurs and the Ministry of Energy have opposed the bill, arguing that it would have a negative impact on the energy sector and industry. (Russia Floats First Law to Regulate CO2 Emissions, CLIMATE HOME NEWS (Mar. 22, 2019).) Speaking at the Congress of the Russian Union of Industrialists and Entrepreneurs on March 14, 2019, President Putin urged its members to overcome their opposition to stricter environmental regulatory measures because such measures are necessary steps in modernizing the Russian economy and promoting its sustainable development. (Vladimir Putin Vistupil na Plenarnom Sasedanii S”eszda Rossijskogo Soyuza Promishlennikov i Predprinimatelei [Vladimir Putin Speaks at Plenary Session of Congress of Russian Union of Industrialists and Entrepreneurs, KREMLIN (Mar. 14, 2019).

Poland: Government Proposes National ID Card for Poles Living Abroad

Mon, 06/05/2019 - 14:45

(May 6, 2019) On April 15, 2019, the Bill Amending the Act on the Polish Card was adopted by the Sejm (lower chamber of the Polish legislature) and submitted to the Senate (upper chamber of the Polish legislature) for consideration. (Ustawa z dnia 12 kwietnia 2019 r. o zmianie ustawy o Karcie Polaka [Bill on Amending the Act on the Polish Card], Apr. 12, 2019, Sejm website.)  Drafted by the government of Poland with the aim of uniting Poles living abroad and strengthening their links with the motherland, the Bill provides for the issuance of the Polish Card, a document proving Polish ancestry and ethnicity, to all persons of Polish descent regardless of their place of residence. (Press Release, Chancellery of the Prime Minister, Draft Act Amending the Act on the Polish Card and the Consular Law Act (Apr. 2, 2019) (in Polish).) Presently, the Polish Card is issued to the “Poles of the East,” persons of Polish descent who are citizens of the former Soviet republics. (Act on the Polish Card, Sept. 7, 2007, preamble & § 2(3)–(4), Ministry of Foreign Affairs website.) The Bill did not amend social security, travel, residence, work permit, and educational entitlements granted under the Act on the Polish Card. Currently Polish Card holders are entitled to open companies in Poland on the same basis as Polish citizens; obtain work permits; have access to preschool, primary, and secondary education; and pursue PhD degrees in Poland. They are also permitted to conduct research in Polish institutions, have access to health care, and receive a 37% discount when using public transportation and free admission to museums. (Id. § 6.)

The Bill also proposes abolishing the Council for Poles in the East—an adjudicative public administration body created by the Act on the Polish Card to review appeals and make decisions with regard to granting the Polish Card (id. art. 1(3))—and replacing it with the newly created Council for Poles Abroad, which would retain the powers of Council for Poles in the East (Bill on Amending the Act on the Polish Card art. 1(3)).

According to the Bill, the conclusions of the National Security Agency would be necessary in making decisions on granting the Polish Card. (Id. art. 1(6).) The National Security Agency must indicate if an applicant for the Card has been engaged in behavior that would undermine the defense, security, or protection of public order, and/or if the applicant has acted to the detriment of the Republic of Poland and/or violated human rights. (Id.; Act on the Polish Card art. 19(5)–(6).) The National Security Agency or other competent authority must provide this information within 90 days of receiving the application for the Polish Card and within 30 days of receiving the request for renewal of the Polish card. (Bill on Amending the Act on the Polish Card art. 1(6) paras. 3–4.) Failure to furnish this information in the specified period would be considered the absence of the relevant information. (Id. art. 1(6) para. 4.) The new period for clearing the application for the Polish Card is substantially longer than the current one, which is 14 days. (Act on the Polish Card. art. 19a(2).)

Experts say that it is not clear what impact the enactment of the Bill would have on the number of applicants and their geographic distribution. According to studies as of 2012, there were more than 100,000 holders of the Polish Card after its introduction in 2008. Approximately 50% of current Polish cardholders are citizens of Ukraine. (Mikolaev Junior Team 2013, The “Polish Card”: Another Way to Europe?, EASTBOOK (June 5, 2013).)

UAE: Law Allows Foreigners to Own Real Estate Properties in Abu Dhabi’s Investment Zones

Wed, 01/05/2019 - 15:00

(May 1, 2019) On April 17, 2019, Sheikh Khalifa bin Zayed Al-Nahyan, the governor of Abu Dhabi and the president of the United Arab Emirates (UAE) issued a new, unnumbered law that amends Law No. 19 of 2005 regulating the ownership of real-estate properties. The new amendment allows foreign individuals and foreign legal entities to own and acquire all rights over properties in the investment zones of Abu Dhabi. (Sheikh Khalifa bin Zayed Issues Law Amending Real Properties Law in Abu Dhabi, AL-EMARAT AL-YOUM (Apr. 17, 2019) (in Arabic).) Previously, foreigners were allowed to own only the property and not the land on which the property was built. Ownership of land and real estate was permitted only for nationals of the UAE and Gulf Cooperation Council (GCC) countries. (Abu Dhabi Enacts New Property Ownership Rules for Foreigners, THE NATIONAL (Apr. 18, 2019).)

The 2019 law amends articles 3 and 4 of Law No. 19 of 2005. The amended article 3(i) stipulates that there are three categories of entities and individuals who have the right of real property ownership:

  • Emirati citizens and legal entities, such as corporations
  • Public holding corporations owned by foreigners, whose share of ownership must not exceed 49%
  • Anyone who owns a property by a decree issued from the Abu Dhabi Crown Prince

Furthermore, article 3(ii) now provides that foreign individuals and legal entities have the right to own and acquire all deeds of real estate properties located in the investment zones of Abu Dhabi. (Khalifa bin Zayed Issues Law Amending Real Properties Law in Abu Dhabi, AL-ITTIHAD (Apr. 17, 2019) (in Arabic).)

In accordance with the amended article 4 of Law No. 19 of 2005, the holders of a usufruct for more than ten years have the right to mortgage the property without the consent of the landlord. On the contrary, the property owner may not mortgage the property without the consent of the usufruct holder. Article 4 grants to both parties the right to agree otherwise. (Id.)

Shaikh Khalid bin Mohammad bin Zayed Al-Nahyan, the UAE president’s son and chairman of the Abu Dhabi government’s Executive Committee of Investment Zones of Abu Dhabi, has endorsed the new law, announcing that it adheres to the economic vision of the government of Abu Dhabi through 2030 in its aim to develop the economic sector of the country. (The Government of Abu Dhabi, The Abu Dhabi Economic Vision 2030 (Nov. 2008).) It also encourages investors to invest more in the real properties sector and own more lands in the Abu Dhabi investment zones. (Khalifa Issues Law Amending Real Estate Regulations, Property Ownership in Abu Dhabi, GULF NEWS (Apr. 18, 2019).)

Craig Plumb, head of research at Consultancy JLL, a company specializing in property services and investment management, has stated that the new amendments to Law No. 19 of 2005 would create a balance between Abu Dhabi and Dubai, where foreigners are already permitted to buy freehold property in investment zones. (Abu Dhabi Enacts New Property Ownership Rules for Foreigners, supra.)

Germany: First Agreement to Implement “Good Day Care Act” Concluded

Tue, 30/04/2019 - 17:50

(Apr. 30, 2019) On April 25, 2019, the German federal government and the state of Bremen signed an agreement to implement what has been called the “Good Day Care Act.” The agreement is the first of sixteen agreements that the federal government will conclude with the German states over the course of the next several months. The Good Day Care Act aims to further improve day care quality, achieve uniform standards in all German states, and partially relieve parents from the costs of day care. For that purpose, the federal government will allocate an annual €5.5 billion (about US$6.1 billion) to the German states by 2020. (Gesetz zur Weiterentwicklung der Qualität und zur Teilhabe in der Kindertagesbetreuung [Gute KiTa Gesetz] [Act to Further Improve the Quality of and Participation in Day Care] (Good Day Care Act), Dec. 19, 2018, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 2696, Federal Law Gazette website (in German); Press Release, Federal Ministry for Families, Seniors, Women, and Youth [Bundesministerium für Familie, Senioren, Frauen und Jugend, BMFSFJ], Good Day Care Act. First Agreement Concluded in Bremen (Apr. 25, 2019), BMFSFJ website (in German).)

Features of the Legislation

The Good Day Care Act entered into force on January 1, 2019. (Good Day Care Act art. 5, para. 1.) There are several measures the legislation makes available to states to improve day care quality. (Id. art. 1, § 2.) Each state must evaluate its initial position and decide which measures fit its individual situation the best. (Id. art. 1, § 3.) For that purpose, implementation agreements with the federal government are concluded. (Id. art. 1, § 4.)

The available measures are as follows:

  • Creating needs-oriented educational, child-rearing, and care offerings in day care, in particular to facilitate inclusive teaching of all children and extend hours of operation;
  • Ensuring a good teacher-child ratio;
  • Adopting measures to attract and keep skilled employees;
  • Strengthening services of day cares;
  • Improving the premises in day care facilities;
  • Supporting measures and holistic education that promote child development, health, nutrition, and exercise;
  • Supporting language development;
  • Expanding all-day day care;
  • Improving cooperation between the states and youth welfare services; and
  • Confronting substantive challenges in child care, particularly in implementing appropriate procedures to allow children to participate in decisions that affect them, ensuring that they are safe from sexualized violence, integrating children with special needs, working together with parents and families, using the potential of social spaces, and eliminating gender-based stereotypes. (Id. art. 1, § 2.)

In addition, measures to help parents with the costs of day care also qualify under the legislation. (Id.)

The German Federal Ministry for Families, Seniors, Women, and Youth is to monitor and evaluate the measures taken in the states annually and publish a report. (Id. art. 1, § 6.)

Implementation of the Legislation

Bremen was the first German state to conclude an agreement with the federal government. The signing of agreements with Saarland and Brandenburg is due to occur in the next few weeks. Dates for the other German states are currently under discussion. (Press Release, supra.)

 

Hong Kong: Court of Appeal Declines to Issue Sentencing Guidelines for Animal Cruelty Cases

Tue, 30/04/2019 - 14:30

(Apr. 30, 2019) In a judgment dated April 4, 2019, Hong Kong’s Court of Appeal turned down a Department of Justice prosecutor’s request to increase punishments for an animal abuser and declined to issue sentencing guidelines for animal cruelty cases. (Chris Lau, Punishment for Animal Abuse Should Not Be Strengthened Say Hong Kong Judges, As They Reject Appeal for Tougher Sentence in Case Involving Dead Dog, SOUTH CHINA MORNING POST (Apr. 4, 2019); Secretary for Justice v. Fung Chi Hoi (04/04/2019, CAAR4/2017) [2019] HKCA 391, LEGAL REFERENCE SYSTEM (in Chinese).)

Hong Kong’s Prevention of Cruelty to Animals Ordinance prohibits and punishes a number of offenses involving cruelty to animals, including cruelly beating, kicking, or ill-treating any animal. For any of those offenses, a person is punishable on summary conviction by a fine of HK$200,000 (about US$25,500) and imprisonment for three years. (Prevention of Cruelty to Animals Ordinance (Cap. 169) § 3, Hong Kong E-Legislation website.) The term “animals” for purposes of the Ordinance includes not only household pets, but also any other mammal, bird, reptile, amphibian, fish, or other vertebrate or invertebrate, whether wild or tame. (Id. § 2.)

In the appeal to the Court of Appeal of the High Court of Hong Kong, the Department of Justice pressed for a tougher sentence for a man who had been convicted of kicking and punching a dog in his care. The appeal judges pointed out that the increase in penalties had already been reflected in 2006, when the Prevention of Cruelty to Animals Ordinance was revised, with the prior maximum punishment of six months’ imprisonment and a fine of HK$5,000 (about US$637) raised to three years’ imprisonment and a fine of HK$200,000. ([2019] HKCA 391.)

According to the appeal judges, it is inappropriate and impossible to set up any sentencing guidelines for crimes of cruelty to animals, which must be decided case by case. The judges declined to consider the relevant penalties and sentencing guidelines of other jurisdictions, saying “the way in which other jurisdictions deal with animal abuse is of course affected by their culture, atmosphere, and the awareness the public directed to animal protections.” According to the Court, whether the current Ordinance of Hong Kong ought to be reviewed in light of the practices of other jurisdictions is a question to be considered by the government and the Legislative Council. The Court, however, could only approach the matter in accordance with the provisions of the current Ordinance. (Id.)

The government of Hong Kong is considering an update to the existing legislation on animal welfare that, according to the Chief Executive’s recent policy address, would raise the penalties for acts of cruelty to animals. (The Hong Kong Special Administrative Region in the People’s Republic of China, The Chief Executive’s 2018 Policy Address para. 283.)

 

Iceland: Icelandic Central Bank Publishes Amended Rules on Foreign Exchange

Mon, 29/04/2019 - 20:30

(Apr. 29, 2019) On April 2, 2019, the Central Bank of Iceland published an amended version of its rules on foreign exchange. The new provisions lift some, but not all, of the remaining restrictions on foreign exchange that have been in place since Iceland’s 2008 banking crisis. (Press Release, Central Bank of Iceland, Amended Rules on Foreign Exchange — Removal of Restrictions on Cross-Border Movement of Capital Pursuant to Reduction in Special Reserve Ratio (Apr. 2, 2019), Central Bank of Iceland website; Rules Amending Rules No. 200/2017 on Foreign Exchange, with Subsequent Amendments, STJORNARTIDINDI (OFFICIAL GAZETTE), Apr. 2, 2019 (in Icelandic).)

In 2015 Iceland adopted foreign exchange rules as a response to the 2008 banking crisis that rocked the country. Easing these restrictions, including restrictions on the movement of Icelandic currency owned by foreigners and a requirement that Icelandic residents repatriate foreign currency, has been a multistep process, with previous amendments adopted in July 2015 and March 2017. (Elin Hofverberg, Iceland: Easing of Capital Controls and Banking Regulations, GLOBAL LEGAL MONITOR (July 16, 2015); Elin Hofverberg, Iceland: Central Bank Eases Currency Restrictions, Ends Financial Crisis Capital Controls, GLOBAL LEGAL MONITOR (May 16, 2017); Press Release, Central Bank of Iceland, New Rules on Foreign Exchange (Mar. 12, 2017), Central Bank of Iceland website.)

The new measures that took effect on April 3, 2019, were made possible by a reduction in the reserve ratio that had been established in the special-reserve ration rules. According to the Central Bank these rules were introduced in 2016 “with the aim of tempering and affecting the composition of foreign-denominated capital inflows into the domestic bond market and high-yielding deposits, and of strengthening the monetary policy transmission mechanism” by requiring that a special reserve be used for “capital inflows into the bond market and into high-yielding deposits.” Originally introduced at 40% in 2016, but allowed to rise as high as 75%, the reserve ratio was previously lowered from 40% to 20% in November of 2018. (Press Release, Central Bank of Iceland, New Policy Instrument to Temper and Affect the Composition of Capital Inflows (June 4, 2016), Central Bank of Iceland website; Press Release, Central Bank of Iceland, Amended Rules on Special Reserve Requirements for New Foreign Currency Inflows (Nov. 2, 2018), Central Bank of Iceland website.)

On March 6, 2019, the special-reserve ratio was lowered to 0%, which enables the Central Bank to also lift restrictions that were connected with the reserve requirement.

Specifically the eliminated restrictions include the following:

  • Exportation of securities issued in domestic currency that are comparable to those subject to the special reserve requirement, if investments in them have not been subject to the special reserve base pursuant to the Rules on Special Reserve Requirements for New Foreign Currency Inflows.
  • Cross-border movement of domestic currency in relation to specified measures other than those that create a special reserve base, when payment is made directly or indirectly by withdrawal from an account owned by a foreign financial institution (Vostro account). The term specified measures refers to investment options comparable to those subject to the special reserve requirement.
  • Loans in domestic or foreign currency, granted by resident entities to non-residents, and repayments of loans between these parties that are allocated to investment options comparable to those that are subject to the special reserve requirement. (Press Release, Amended Rules on Foreign Exchange, supra.)

The rules took effect on April 3, 2019. (Id.)

Most of the restrictions are thereby lifted, but a number are still in place, specifically the following:

i) Cross-border transfers of domestic currency due to transactions with offshore króna assets that are subject to special restrictions pursuant to the Act on the Treatment of Króna-Denominated Assets Subject to Special Restrictions, No. 37/2016. ii) Foreign exchange transactions carried out between residents and nonresidents without the intermediation of a financial institution, if domestic currency is a constituent of the transaction. iii) Derivatives transactions involving domestic currency against foreign currency and undertaken for purposes other than hedging against risk or hedging in connection with foreign issuance of króna-denominated bonds (glacier bonds). (Id.)

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