1

CEEMC 6

Environment

and Health 16

IP Issues 25

Commerce

and

Competition

46

Careers'

Corner 60

BLC News 66

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

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...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

Interview with

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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?

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.

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

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.

How did you become involved in the 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.

Where is he now?

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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?

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

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.

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

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.

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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.

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

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.

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.

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.

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?

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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P A G E 6

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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CEEMC 2015 TRAVELS TO TBILISI GEORGIA

Denise Ashmore

BLC Course Director

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P A G E 7

The challenge of differentiating between rights enjoyed of free

movement by economically active persons (whether workers or self-

employed) 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 job-

seeker 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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P A G E 8

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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P A G E 9

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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Tbilisi 2015 Competing teams and judges in the Supreme Court of Georgia

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P A G E 1 0

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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Best Speaker 2014 Report

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P A G E 1 1

importance of their work. I was assigned a few very interesting tasks and

research topics. One of the referendaires - Ms Julie Brohe e, 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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P A G E 1 2

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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P A G E 1 3

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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Winners Report 2014

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P A G E 1 4

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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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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P A G E 1 6 M A Y 2 0 1 5

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 e-

cigarettes!

Envi

ron

me

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and

He

alth

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 socio-economy of

contemporary and future human

population. Adverse effects of climate

change are especially visible in the law

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

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

P A G E 1 7 M A Y 2 0 1 5

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…’

18

O B I T E R D I C T A

P A G E 1 8 M A Y 2 0 1 5

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

19

P A G E 1 9

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

M A Y 2 0 1 5

20

P A G E 2 0

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

M A Y 2 0 1 5

21

P A G E 2 1

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”.

M A Y 2 0 1 5

22

P A G E 2 2

M A Y 2 0 1 5

“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.

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 e-

cigarettes 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

P A G E 2 3 M A Y 2 0 1 5

24

P A G E 2 4 M A Y 2 0 1 5

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 e-

cigarettes 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 e-

cigarettes, 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-year-

old 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!!

25

P A G E 2 5

IP IS

SUES

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.

M A Y 2 0 1 5

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

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-

26

P A G E 2 6

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

M A Y 2 0 1 5

27

P A G E 2 7

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

M A Y 2 0 1 5

28

P A G E 2 8

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.

M A Y 2 0 1 5

Q Have you heard about the

lawyers’ word processor?

A: No matter what font you

select, everything comes up

in fine print.

29

P A G E 2 9 M A Y 2 0 1 5

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

Lawyers Corner

30

P A G E 3 0 M A Y 2 0 1 5

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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P A G E 3 1

M A Y 2 0 1 5

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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P A G E 3 2

M A Y 2 0 1 5

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 10th of April 2014 CJEU in Case C-

435/12 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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P A G E 3 3

M A Y 2 0 1 5

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 Court

referred a number of

questions to the CJEU

related to 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”.

34

P A G E 3 4 M A Y 2 0 1 5

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:

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 anti-immigrant 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

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

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

Conservatives 307 331

Labour 258 232

Liberal Democrats 57 8

Democratic Unionist Party 8 8

Scottish National Party 6 56

Others 14 15

Where to now? UK elections mark the beginning of a period of uncertainty

in English law

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P A G E 3 5 M A Y 2 0 1 5

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 post-election 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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P A G E 3 6

M A Y 2 0 1 5

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,

ESMA – a new way to stabilize the European market

after the crisis Marta Szczytowska

BLC Warsaw Student

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P A G E 3 7

M A Y 2 0 1 5

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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P A G E 3 8

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

M A Y 2 0 1 5

Umbrella pricing – is there room for private

enforcement? Bartosz Dobkowski BLC Warsaw Student

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P A G E 3 9

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.

M A Y 2 0 1 5

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O B I T E R D I C T A

M A Y 2 0 1 5 P A G E 4 0

Magna Carta has a birthday!

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.

Denise Ashmore BLC Course Director

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M A Y 2 0 1 5 P A G E 4 1

Or should I say the document of 1225 signed by King Henry III which re-enacted and re-affirmed 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.

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.

Runnymede: the place where Magna Carta was signed

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M A Y 2 0 1 5 P A G E 4 2

Runnymede: the place where Magna Carta was signed

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

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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P A G E 4 3 M A Y 2 0 1 5

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.

LEGAL NATURE OF THE SPONSORSHIP

AGREEMENT Aleksander Półtorak BLC Warsaw Student

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P A G E 4 4 M A Y 2 0 1 5

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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O B I T E R D I C T A

P A G E 4 6 M A Y 2 0 1 5

Co

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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

47

defining a framework of duties in which the Director must act within. Moreover pursuant to section

172 of the CA 2006, a Director is obliged to promote the success of the company. Despite the relative

generality of this obligation it introduces an extremely significant rule. According to this section, a

Director, consistently with the principles of good faith, has to act at his or her discretion to ensure the

success of the company and its successful promotion. In carrying out this duty a Director must keep in

mind a few factors reflecting mainly to the benefit of the company's employees, environmental

protection or timeliness of his or her decisions.

The ‘Code of Ethics’ to a Director

A Director has the duty to exercise an independent judgment (section 173 CA 2006). This duty stresses

the need for independence and sovereignty in decision-making by a Director. However,

this does not mean, that a Director may not consult with other directors before making a decision, but

he or she must take this decision independently and suffer any possible consequences thereof. This

section protects the independence of Directors against pressure from the supervisory board members

or the shareholders.

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

Executive position requires from guardians of this function relevant skills that will contribute

to the prudent and effective decision-making and predicting their effects. This section serves to

the protection of responsible and successive administration of the affairs of the company.

P A G E 4 7 M A Y 2 0 1 5

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P A G E 4 8 M A Y 2 0 1 5

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 ill-

gotten 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 seller-

side 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 secrecy-

jurisdictions, 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 seven-

day 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 Jean-

Claude 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 Vice-

president 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!

Car

ee

r M

atte

rs

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

The easiest way to become a lawyer in the European Union

Karolina Kaleta-Blicharz

BLC Student Warsaw

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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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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

A Bumper Year for BLC Legal Workshops

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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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Would you like to have your work included in the next

edition of Obiter Dicta?

We are looking for both longer articles of 2000 words and shorter updates of 300-1000 words

Please register your interest in submitting an article to

Editorial@britishlawcentre.co.uk

We would be delighted to receive articles on any aspect of your national law, private international law and European law

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 on-

going support in relation to the Diploma courses offered throughout

Central and Eastern Europe

M A Y 2 0 1 5

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

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BLC MEMBERS AND ALUMNI NEWS

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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A number of BLC alumni have also received prestigious

appointments this year, many congratulations to:

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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Recruitment has begun! B

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friends and colleagues…tell

them to apply now !!!

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Juris Angliae Scientia Ltd

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.

10 West Road

Cambridge

England

Find us online at www.britishlawcentre.co.uk

Phone: +48 22 52 7278

E-mail:editorial@britishlawcentre.co.uk

Footnotes to articles are not included in Obiter Dicta. If you wish to read

any article inclusive of footnotes please contact the editor via the

contact details provided.