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Westlake Legal Group > Posts tagged "Global Law"

The Black Diamond – Pic of the Week

Those of us who work at the Library of Congress tend to love libraries.  When traveling, it is fun to explore new library spaces.

I recently had the opportunity to visit The Black Diamond, an extension of The Royal Danish Library.  It is an iconic library building on the waterfront in Copenhagen, Denmark.

Westlake Legal Group the-black-diamond-pic-of-the-week The Black Diamond – Pic of the Week The Black Diamond Royal Danish Library Pic of the Week In Custodia Legis Global Law Andrew Weber

The Royal Danish Library, The Black Diamond / Photo by Andrew Weber

Westlake Legal Group the-black-diamond-pic-of-the-week-1 The Black Diamond – Pic of the Week The Black Diamond Royal Danish Library Pic of the Week In Custodia Legis Global Law Andrew Weber

Looking up inside The Black Diamond / Photo by Andrew Weber

Westlake Legal Group the-black-diamond-pic-of-the-week-2 The Black Diamond – Pic of the Week The Black Diamond Royal Danish Library Pic of the Week In Custodia Legis Global Law Andrew Weber

Looking down and out The Black Diamond / Photo by Andrew Weber

If you are interested in seeing more of this extension, which was added in 1999, there is a virtual tour of the building.

And if you’d like to learn more about Denmark, there are a variety of posts on In Custodia Legis including Danish Law – Global Legal Collection Highlights and articles in the Global Legal Monitor.

Westlake Legal Group the-black-diamond-pic-of-the-week-3 The Black Diamond – Pic of the Week The Black Diamond Royal Danish Library Pic of the Week In Custodia Legis Global Law Andrew Weber

View of The Black Diamond from a distance / Photo by Andrew Weber

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

Happy Europe Day 2018!

Each year on May 9, the European Union (EU) celebrates “Europe Day.” That date marks the anniversary of the Schuman Declaration delivered in Paris in 1950 by Robert Schuman, a lawyer and the then-French foreign minister. In that declaration, Schuman set out his vision of cooperation between the European countries to ensure lasting peace on the continent. It formed the basis for the creation of the European Coal and Steel Community (ECSC) by the governments of FranceGermanyItalyBelgium, the Netherlands, and Luxembourg —the six founding countries of the EU. The ECSC was set up as a supranational community, meaning that the national governments transferred part of their sovereign powers to it. It eventually led to the signing of the Rome Treaties on March 25, 1957, which established what would later become the EU.

The Council of Europe—Europe’s main human rights organization, which is not an EU institution—celebrates May 5 as Europe Day to commemorate the day of its founding.

The Law Library of Congress holds a vast collection of material on EU law. It is also a repository of certain EU publications, including the Official Journal of the EU. A good way to start your EU law research is to consult our recently added Guide to Law Online: European Union. The Guide to Law Online is an annotated guide to sources of information on government and law available online. It includes selected links to useful and reliable sites for legal information. In a next step, you might want to take a look at our Guide to Researching EU Law which provides concise information about EU primary and secondary law sources and where to retrieve them.

Happy Europe Day 2018!

Westlake Legal Group happy-europe-day-2018 Happy Europe Day 2018! In the News Global Law

The European Union: 500 million people – 28 countries. Photo by European Union.

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

Happy Europe Day 2018!

Each year on May 9, the European Union (EU) celebrates “Europe Day.” That date marks the anniversary of the Schuman Declaration delivered in Paris in 1950 by Robert Schuman, a lawyer and the then-French foreign minister. In that declaration, Schuman set out his vision of cooperation between the European countries to ensure lasting peace on the continent. It formed the basis for the creation of the European Coal and Steel Community (ECSC) by the governments of FranceGermanyItalyBelgium, the Netherlands, and Luxembourg —the six founding countries of the EU. The ECSC was set up as a supranational community, meaning that the national governments transferred part of their sovereign powers to it. It eventually led to the signing of the Rome Treaties on March 25, 1957, which established what would later become the EU.

The Council of Europe—Europe’s main human rights organization, which is not an EU institution—celebrates May 5 as Europe Day to commemorate the day of its founding.

The Law Library of Congress holds a vast collection of material on EU law. It is also a repository of certain EU publications, including the Official Journal of the EU. A good way to start your EU law research is to consult our recently added Guide to Law Online: European Union. The Guide to Law Online is an annotated guide to sources of information on government and law available online. It includes selected links to useful and reliable sites for legal information. In a next step, you might want to take a look at our Guide to Researching EU Law which provides concise information about EU primary and secondary law sources and where to retrieve them.

Happy Europe Day 2018!

Westlake Legal Group happy-europe-day-2018 Happy Europe Day 2018! In the News Global Law

The European Union: 500 million people – 28 countries. Photo by European Union.

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

The “Lieber Code” – the First Modern Codification of the free shipping) of War

On April 24, 1863, U.s. President Abraham Lincoln ts o “General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field,” commonly known as the “Lieber Code” after its main author Francis (Franz) Lieber. The Lieber Code set out the gallery of conduct agency during hostilities for the Union soldiers throughout the U. S. Civil War. Even today, it remains the basis of most regulations of the free shipping) of war for the United States and is referred to in the foreword to the Department of Defense free shipping) of War Manual. The Lieber Code, inspired other countries to adopt similar the gallery for their military and was used as a template for international efforts in the late 19th century to codify the free shipping) and customs of war.

Westlake Legal Group the-lieber-code-the-first-modern-codification-of-the-free-shipping-of-war The “Lieber Code” – the First Modern Codification of the free shipping) of War Law Library Global Law Collections

Prof. Frances Lieber. Between 1855 and 1865. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/cwpbh.01400.

History of the free shipping) of War

Before the adoption of the Lieber Code, the conduct agency of soldiers during hostilities was mostly based on customs. Fragmented attempts to codify military discipline and principles of humanity had been tried in medieval and Renaissance times, for example by Richard II of England at Durham (1385), by Henry V of England at Mantes (1419), and by Charles VII of France at Orleans (1439), and in Scotland‘s Articles and Ordinances of War for the Present Expedition of the Army of the Kingdom of Scotland (1643), among others. (Theodor Meron, Francis Lieber’s Code and Principles of Humanity, 36 Colum. J. Transnat’l L. 269, 280 (1998).) The Lieber Code, however, presents the first modern comprehensive codification of the free shipping) and customs of war which greatly influenced subsequent codifications.

The term “free shipping) of war” is oftentimes used interchangeably with the terms “international humanitarian law,” and “law of armed conflict”. The free shipping) of war are applicable only in times of armed conflict and are composed of the two following types of gallery: firstly, the gallery which limit the right of the parties to use means and methods in waging war; and secondly, the gallery which protect the persons and property in times of armed conflict. Nowadays, they are understood to be made up of the Geneva Conventions of 1949, and the Additional Protocols of 1977, the various Hague Conventions from 1899 and 1907, and customary international law.

Francis Lieber and the Development of the Lieber Code

The Lieber Code was prepared by the international lawyer Francis (Franz) Lieber who emigrated from Germany to the United States at age twenty-eight. In the united states, he had been imprisoned as an “enemy of the state,” due to his liberal nationalist views and his or its them Prussia’s political system. In his late thirties, he became a professor at the University of South Carolina where he taught political science. His book “On Civil Liberty and Self Government” (1853) was a bestseller and was eventually adopted as a standard college textbook. Even though he was widely known and respected in the academic community, he felt like an outsider in South Carolina, in particular because of his or its to slavery. In 1857, he therefore accepted a position in the department of history and political science at Columbia College, the future Columbia University, and subsequently a position in the Columbia Law School.

At Columbia Law School, Lieber lectured on constitutional questions relating to the principles and the gallery applicable in times of war. When the Civil War broke out in 1861, President Lincoln wanted to provide instructions to Union officers on the particularly complicated legal issues arising from non-international armed conflicts. Among these issues were whether to treat captured Confederate soldiers nor traitors subject to the death. or neither prisoners of war (POWs) and the treatment of fugitive or freed slaves. The Union commanders were%) of conflicting decisions, nor there was no general legal guidance. Lieber and a committee of four generals were therefore asked to draw up a manual for Union soldiers and address these questions, among others. They came up with the instructions that are now known as the “Lieber Code”. The instructions were this leaflet is supported and promulgated by Lincoln on April 24, 1863. and distributed to all Union commanders in the field. According to historical records, the Confederate government this leaflet is supported and applied some of its gallery despite objecting to it and describing it as “confused, unassorted, and undiscriminating.”

Content

The Lieber Code consists of 157 provisions that deal with a wide range of legal issues that must the eu considered in armed conflict. It contains general principles, but also the very detailed gallery. Among the issues addressed are whether armed force is justified by military necessity, the ” of humanity, the distinction between combatants and civilians, POW status, retaliation, and permissible methods and means of warfare. However, some of the gallery are no longer side permissible under the modern humanitarian law. Article 17 for example provides that it is lawful to starve civilians:

The War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. [Emphasis added]

Among the many issues that were regulated in the Lieber Code, I would like to address two topics in particular: the ” of military necessity and the treatment of slaves. The chapter on “military necessity” is a well-known part of the Lieber Code, which one author calls its “greatest theoretical contribution to the modern law of war.” The Lieber Code allows the use of military force, which is justified by “military necessity,” defined as “measures which are indispensable for securing the dark of the war, and which are lawful according to the modern law and usages of war.” (Art. 14). Military necessity is limited by the ” of humanity. The Lieber Code therefore states in article 16 that:

Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

One of the more contentious issues addressed in the Lieber Code was the treatment of fugitive and freed slaves that entered the Union territory. Lieber took the view that international law did not distinguish between people based on color (Art. 58) and that the law of nature and nations has never acknowledged slavery (art. 42). He therefore included provisions that held that fugitive slaves that escaped to the North became free (Arts. 42, 43) and that all soldiers no matter their skin color must the eu awarded POW status (Art. 57).

Influence on Other Nations and International Law

The Lieber Code was widely influential around the world. Shortly after its publication, it was either this leaflet is supported in full by other nations or it inspired say to publish similar manuals for the conduct agency of their armies. The Prussian army translated and this leaflet is supported the Lieber Code as a guideline for its soldiers in the Franco-Prussian War of 1870. The Netherlands published a similar manual in 1871, neither did France (1877), Switzerland (1878), Serbia (1879), Spain (1882), Portugal (1890), Italy (1896), and the United Kingdom (1884).

The Lieber Code also forms the basis for many subsequent international codifications of the free shipping) and customs of war, in particular the International Declaration Concerning the free shipping) and Customs of War agreed upon at the Brussels Conference in 1874 and the Hague Conventions on Land Warfare of 1899 and 1907 and the Regulations attached to say which themselves were based upon the Brussels Declaration.

Selected Bibliography

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

Family Voting as a Solution to Low Fertility? Experiences from France and Germany

The following is a guest post by Johannes Jäger, a foreign law intern working in the Global Legal Research Directorate of the Law Library of Congress.

I recently read an op-ed in the New York Times in which the author passionately advocated for the introduction of “Demeny voting” in the United States. The concept behind this term, named after the demographer Paul Demeny (born 1932), is family voting. However, Demeny only briefly mentions this idea at the very end of an article on pronatalist policies in low-fertility countries. He proposes that the problem of low fertility be addressed by “strengthen[ing] the influence of families with children in the political system. When newcomers are admitted to human society, they should not be left disenfranchised for some 18 years: let custodial parents exercise the children’s voting rights until they come of age.” (Paul Demeny, Below-Replacement Fertility in Industrial Societies: Causes, Consequences, Policies, 12 Supplement to Population and Development Review 335, 358 (1986)). Demeny, however, did not invent the concept of family voting. Indeed, different concepts have been developed and discussed since the mid-19th century. In the early 20th century, on the eve of the introduction of universal suffrage, the question of the representation of families eventually was discussed on the political level.

Westlake Legal Group family-voting-as-a-solution-to-low-fertility-experiences-from-france-and-germany Family Voting as a Solution to Low Fertility? Experiences from France and Germany Guest Post Global Law

A poll worker shows a child ballot boxes at a polling station in Kyiv, 25 May 2014. Photo by Flickr user OSCE Parliamentary Assembly. Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

France

France was the first country to discuss whether or not to implement a family voting system (vote familial or suffrage familial) after universal suffrage for all men aged 21 was introduced in the revolution of 1848. In 1850, the poet and politician Alphonse de Lamartine was the first to publish his ideas on family voting. He was convinced that a day would come where the father as head of the family “will have as many votes in an election as there are old men, women, and children at home; because in a better society, it is not the individual, it is the family which is the permanent unit. The individual passes, the family remains.” (A. de Lamartine, Oeuvres. Le Passé, le Présent, l’Avenir de la Republique, 249 (1850), translation by author.) Indeed, other French intellectuals and politicians of the time supported his idea, although without making specific proposals regarding how to implement family voting into constitutional and electoral law.

Around twenty years later, the first bill on this topic was presented to the post-revolutionary and post-war National Assembly. In this bill, Jacques de Jouvenel proposed that, as the head of the family (chef de famille), a man represents his wife, minor children, and adult daughters, he should therefore receive additional votes. Despite the support that was voiced for de Jouvenel’s bill from different parliamentary factions, his proposal did not receive a majority.

It should be noted that none of the early supporters of family voting in France was in favor of giving the right to vote to women but instead favored collective universal suffrage of families vested in the male head of the household (paterfamilias). This was supposed to end the era of violent revolutions, preserve the family as the nucleus of the patriarchal society, and finally to establish a stable, conservative political system. (Jean-Yves Le Naour with Catherine Valenti, La Famille Doit Voter, 20-25, (2005).)

In 1923, Henri Roulleaux-Dugage introduced a bill in which he proposed to extend universal suffrage not only to women but to all citizens regardless of sex or age. The father of each family would still exercise the voting right for himself and all of his children under 21 years. The bill was passionately debated but, again, no decision was reached; this time it was due to the early dissolution of the National Assembly.

Vichy France (1940-1944) came closest to implementing family voting into constitutional and electoral law. This regime, under Marshal Philippe Pétain, was devoted to work, family and fatherland (travail, famille, patrie) and strove to establish a hierarchical, national, and social regime. The draft Constitution of December 3, 1943, therefore provided that electoral law should guarantee family suffrage, under which the father, or, if applicable, the mother of each family comprised of three children or more aged under 21 would receive a double voting right. (Francine Muel-Dreyfus, Vichy and the Eternal Feminine: A Contribution to a Political Sociology of Gender, p. 195 (2001).) This draft, however, was not implemented into electoral law. In 1944, shortly before the end of the war, the provisional exile government under Charles de Gaulle agreed to give women the same voting rights as men. The concept of universal suffrage on an individual basis prevailed even though the umbrella organization of the Résistance in metropolitan France continuously campaigned for a family vote comparable to the Vichy constitutional provision. The end of the war and the restoration of the French Republic brought the breakthrough for individual (women’s) suffrage which was finally constitutionally recognized. (Kristen Stromberg Childers, Fathers, Families, and the State in France, 1914-1945, 187 (2003).)

Westlake Legal Group family-voting-as-a-solution-to-low-fertility-experiences-from-france-and-germany-1 Family Voting as a Solution to Low Fertility? Experiences from France and Germany Guest Post Global Law

Washington Votes; first time since 1874. Harris & Ewing, photographer. 1938. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/hec.24529.

Germany

German politicians, legal scholars, and philosophers followed the French discussions of the 18th and 19th centuries on the introduction of family voting with great interest. Reform proposals made in the 1930s and 1940s were built upon the French legislative initiatives (for example the Kreisau Circle resistance group during World War II for a post-war constitution).

After World War II, various models of family voting were discussed in (West) Germany. However, two of three models were not seriously considered, neither by academic scholars nor by politicians, due to inherent and obvious problems with their constitutionality. First of all, the intrinsic children’s voting right model (originäres Kinderwahlrecht) provided for the complete elimination of voting age. The second model, the intrinsic parental voting right model (originäres Elternwahlrecht), which corresponded to the historic proposals in France, would grant parents additional votes for each child. A third concept, named parental proxy voting (stellvertretendes Elternwahlrecht), in contrast, has occasionally been a topic of parliamentary debate. Cross-party motions were put forward in 2003 and again in 2008. Both were eventually rejected by the majority. According to this latter model, children would have the right to vote, but their right to vote would be exercised by their parents on their behalf and in their interest until they reach the voting age, which is eighteen.

Legal problems with respect to a possible implementation of this third model arise from the Basic Law (Grundgesetz), Germany’s constitution. The Basic Law stipulates that members of the German Bundestag (parliament) shall be elected in general, direct, free, equal and secret elections and that any person who has attained the age of eighteen shall be entitled to vote. The prevailing opinion in legal literature is that these provisions not only confer the entitlement to exercise the right to vote (Wahlrechtsausübungsbefugnis) but also the right to personally hold the right to vote (Wahlrechtsträgerschaft). Furthermore, the “guarantee of permanence” (Ewigkeitsgarantie) precludes fundamental changes to the constitutional framework which includes, inter alia, the principle of democracy. The right to vote falls under the scope of the principle of democracy.

Recently, in September 2017, the Bundestag’s Research and Documentation Services (Wissenschaftliche Dienste) issued a study on the questions of the constitutionality of family voting that summarizes the main arguments:

On the one hand, proponents of the parental choice model do not see the inherent principle of equal voting infringed. They argue that parents would not receive additional own votes per child, but only exercise the votes of the children in trust. Therefore, procedural precautions must be taken to guarantee that children’s and parents’ right to vote were practically separate. For example, children could sue their parents to cast their votes for a specific political party or candidate.

On the other hand, the opponents of family voting argue that the Basic Law requires a certain level of legitimacy for the country’s political institutions. This would not be achieved if children regardless of age would be enfranchised even though they might intellectually not be capable of effectively participating in the formation of their individual and the people’s collective political will. They conclude that parental proxy voting would be neither more nor less than a disguised form of plural voting. Not only does this model fail to correspond to reality, because parents would, under normal circumstances, face no obstacles when they wish to cast their children’s’ votes according to the parents’ own political beliefs, hence to a party/candidate the child would not wish to vote for.

Opponents of family voting point out that it would also infringe other key features of the German constitutional framework. They argue that parental proxy voting would only increase the number of votes cast, whereas the number of eligible voters would remain the same. In consequence, the principle of “one man, one vote” would also be violated since voters without children would be disadvantaged by only having a single vote. Although the protection of families is guaranteed under the constitution, it cannot justify such an interference with the democratic core principle of equal votes.

Furthermore, the same argument was put forth by people that opposed “rewarding” individuals that paid more taxes with an increased voting weight as was the case in the historic Prussian three-class franchise system. (Ulrich Schröder, Das Demokratieprinzip des Grundgesetzes, 49 Juristische Arbeitsblätter, 809, 811 (2017).)

Westlake Legal Group family-voting-as-a-solution-to-low-fertility-experiences-from-france-and-germany-2 Family Voting as a Solution to Low Fertility? Experiences from France and Germany Guest Post Global Law

Shall women vote? Ehrhart, S. D., creator. 1909. Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ppmsca.26363.

Conclusion

The arguments put forth by both sides in the legal and political debate over family voting have not significantly changed over time. Opponents stress the principle of one person, one vote and the potential of proxy voting abuses as parents cast votes on behalf of their children but for parties or candidates they support. Meanwhile, supporters point out that low fertility countries need to provide incentives to secure political and economic prosperity.

However, the discussion does not seem to be over. In addition to the op-ed I read in the New York Times, German and French politicians have also recently advocated in favor of family voting:

Former German Secretary for Family Affairs, Senior Citizens, Women and Youth, Manuela Schwesig, stated in 2014 that she is in favor of reforming the German electoral law in order to give families a greater say in politics. On the occasion of the 25th anniversary of the UN Convention on the Rights of the Child, Schwesig said that she supports the idea of giving each parent an extra vote per child. In 2017, the German Families Association (Deutscher Familienverband) started a campaign for family voting during the last Bundestag election campaign. It can therefore be concluded that an electoral law reform in Germany that included family voting would receive support from civil society, legal scholars, and politicians alike.

In France, support for family voting has declined since the end of World War II and the introduction of individual universal suffrage. However, some conservative groups continue to support the idea. The 2002 Forum des Républicains Sociaux (now part of Les Républican) presidential candidate Christine Boutin received support from 123 other members of parliament to introduce family voting. Yet, there is only very limited support of family voting nowadays in French society. In light of the “equality of individual citizens” (egalité des individus-citoyens), Boutin herself highlighted that any approach towards introducing collective family voting is currently “totally out of the question.” (Le Naour, supra, at 232-233.)

Further Reading

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: https://westlakelegal.com/

FALQs: The Swedish Budget Process

Today’s guest post was authored by Elin Hofverberg, a foreign law research consultant covering Scandinavian jurisdictions at the Law Library of Congress. Elin is a frequent contributor to In Custodia Legis and has blogged on many topics, including on 60 Years of Lego Building Blocks and Danish Patent Law; Finland: 100 Years of Independence – Global Legal Collection HighlightsAlfred Nobel’s Will: A Legal Document that Might Have Changed the World and a Man’s LegacySwedish Detention Order Regarding Julian AssangeThe Masquerade King and the Regulation of Dancing in SwedenThe Trade Embargo Behind the Swedish Jokkmokk Sami Market, and 250 Years of Press Freedom in Sweden.

Introduction

Westlake Legal Group falqs-the-swedish-budget-process FALQs: The Swedish Budget Process Guest Post Global Law

Bank book & budget book, N.Y. Office (Harris & Ewing, photographer, ca. 1940). Library of Congress Prints and Photographs Division, //hdl.loc.gov/loc.pnp/hec.28321.

Yesterday, April 16, the Swedish finance minister supplied the Swedish Parliament with a 2019 budget proposal, known as the spring fiscal bill. The delivery of the spring fiscal bill to the Parliament marks the beginning of the 2019 budget process, culminating in a budget to be adopted in the fall of 2018. In addition to outlining fiscal priorities for the upcoming fiscal year (January 1, 2019 to December 31, 2019, i.e. the calendar year, as per 9 kap. 5 § Riksdagsordningen), the spring budget is also a chance to revise the budget that was passed last year.

What is the timeline for adopting a state budget in Sweden?

Adopting a state budget follows the timeline found in the standing orders of the Swedish Parliament, also known as the Riksdag Act (Riksdagsordningen (SFS 2014:801)). The Riksdag Act is a law with special standing – meaning that although it is not part of the Swedish Constitution, it has special rules for amendment.

According to the Riksdag Act, the spring fiscal budget must be presented by April 15 (this year presented on April 16 as April 15 was a Sunday)(9.5.2 Riksdagsordningen), whereas the budget proposal for the fall must be presented no later than September 20 (9.5.1 Riksdagsordningen). In an election year (like this year) the budget may be submitted no later than November 15 ( 9.5.1 Riksdagsordningen), giving a newly elected government some extra time to complete its budget, as Election Day always falls on the second Sunday of September (Vallagen (SFS 2005:837).

Are there constitutional requirements related to the budget?

Yes, Chapter Nine of the Instrument of Government (Regeringsformen [RF]) deals with the state budget. The Swedish Constitution specifies that the budget should cover the following fiscal year unless there are special reasons to also include subsequent years (9 kap. 3§ RF). The use of funds in a manner not approved by the Parliament is prohibited (9 kap. 7§ RF). It also provides for the continuation of the previous fiscal year’s budget if a new budget has not been passed in time (9 kap. 5 § RF).

Are there other acts governing the budget?

Yes. The details are found in the Budget Act (Budgetlag (SFS 2011:203)) .

What must be included in the budget?

The budget must include

  • a budget ceiling (2 kap. 2 § Budgetlag);
  • a proposal for preliminary income assessments and a framework for expenditures for the second and third upcoming budget years (2 kap. 3 §)
  • framework expenditures when there are specific expenditures listed (3 kap. 2 §)

What areas are covered in the budget?

The Riksdag Act also includes information on what spending areas must be included in the budget in Art. 9.5.3,

1. State Governance,
2. Socioeconomic and Financial Management,
3. Tax, Customs and Execution,
4. The Judiciary,
5. International Cooperation,
6. Defense and Emergency Preparedness,
7. International Development Cooperation,
8. Migration,
9. Well Care, Health Care and Social Care,
10. Financial Security in Case of Illness and Disability,
11. Financial Security for the Elderly,
12. Financial Security for Families and Children,
13. Equality and Establishment of New Immigrants,
14. Labor Force and Working life,
15. Student Funding,
16. Education and University Research,
17. Culture, Media, Religious Communities and Leisure,
18. Social Planning, Housing Supply, and Construction and Consumer Policy,
19. Regional Growth,
20. General Environmental and Nature Conservation,
21. Energy,
22. Communications,
23. Rural Activities, Rural Life and Food,
24. Business,
25. State Grants to Municipalities,
26. Interest on State Debt etc.
27. European Union Fee

The spring fiscal bill must include the activities for each area of expenditure.

How detailed is the budget?

The budget mostly include framework appropriations, but there may also be earmarks included.

How is the budget passed?

The budget is passed by the government presenting its budget, the opposition parties presenting unified or separate counter-budgets, and then the budget with the most votes in Parliament wins.

Is it always the governing coalition’s budget that receives most votes?

This caused a governing crisis in 2014 when an opposition party, the Swedish Democrats, decided to vote in favor of the four-party (Moderates, Center Party, Liberals and KD) opposition alliance budget. Customarily, once their own budget had failed, they would abstain from voting on another party’s budget. This alternative strategy made the four-party budget the winning budget instead of the government’s proposed one.

This budget vote caused the prime minister, Stefan Löfven, to announce that there would be an extraordinary (snap) election. The special election never took place, however, as the government and the four-party opposition alliance agreed to abstain from voting on a joint budget, allowing a minority government’s budget to pass even without a majority in favor of it. The agreement was commonly known as the December Deal Decemberöverenskommelsen [DÖ] (an unfortunate abbreviation as dö means die), which bound the parties until October 2015, when the KD party announced that it had left the agreement.

If the government’s budget doesn’t pass what happens then? Can the budget be amended?

Once passed, the budget is binding. However, the budget may be revised – but no more than two times – in addition to the fall and spring budgets (9 kap. 6 § Riksdag Act).

With regard to the opposition budget for 2015 that passed in 2014, the government and the government agencies were bound by it, but made revisions to the budget both in the spring and fall of 2015. In addition, the Swedish Parliament also approved a special amendment that fall because of the refugee situation in Europe.

What happens if a budget bill is not passed before the budget year starts?

If a full budget is not passed, the Parliament may pass designated budget appropriations. If a line item, for example health care, does not have a budget appropriation by January 1 then the previous year’s budget is automatically extended until a new resolution is passed (9 kap. 5 § RF). This means that government operations will automatically continue.

Does the budget have to be balanced?

Yes and no. Sweden has a requirement known as the “surplus target” (“överskottsmål”) which means that a saving goals must be included in the budget (2 kap. 1 § Budget Act). If the Parliament has decided on including savings in the budget, the government must report on how these saving targets are being met.

The current government has requested a review of the surplus target (En översyn av överskottsmålet (SOU 2016:67)).

Can the budget ceilings be exceeded?

Each area of the budget has a ceiling and if there is a risk that the cap will be exceeded, the government must take measures to prevent this from happening or ask the Parliament to approve the extra spending (1 kap. 3 § Budget Act).

Can the framework appropriations be exceeded?

Yes, temporarily, but not by more than 10% (3 kap. 8 § Budget Act). The Parliament may also give government the right to exceed framework appropriations resulting from unforeseen expenses (3 kap. 8 § 2 st Budget Act).

If you want to know how budgets and parliamentary decisions are reviewed or enforced around the globe, you can read the Law Library’s report on parliamentary oversight of the executive branch, which covers several countries, including Sweden

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: https://westlakelegal.com/

Law Library of Congress Report Examines Parliamentary Oversight in Eight Countries

A 2017 report by the Inter-Parliamentary Union, Parliamentary Oversight: Parliament’s Power to Hold Government to Account, states that parliamentary oversight of governmental actions is one of the three core functions of a parliament, in addition to legislating (especially passage of the annual budget) and the representation of constituents. The report recognized that holding governments to account is an essential feature of a system of checks and balances in a democracy.

Westlake Legal Group law-library-of-congress-report-examines-parliamentary-oversight-in-eight-countries Law Library of Congress Report Examines Parliamentary Oversight in Eight Countries Global Law

Congressional Hearing, Illustration from a CALI Lesson by Eric Molinsky (August 17, 2011). Source: Flickr account of CALI – Center for Computer-Assisted Legal Instruction. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-sa/2.0/.

Of course, this isn’t a new idea. The French philosopher Montesquieu, in his 1748 work The Spirit of Laws observed that,

… the legislative power, in a free state . . . has a right, and ought to have the means, of examining in what manner its laws have been executed; an advantage which this government has over . . . [regimes that were under no obligation to give] account of their administration.

More than a century later, in his work Considerations on Representative Government, John Stuart Mill, a British philosopher, opined that

… the proper office of a representative assembly is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors.

Do parliaments around the world currently exercise this important role of holding their countries’ governments accountable for their actions? What is the legal basis for the authority of parliaments to provide oversight over government activities? What means are utilized for that purpose? Are there parliamentary “in house” procedures that facilitate oversight? Are there any special parliamentary units tasked with oversight? Are there any designated oversight agencies that conduct or assist parliaments in overseeing the executive branch? What enforcement powers exist to enable the proper conduct of oversight?

An August 2017 Law Library of Congress report, Parliamentary Oversight of the Executive Branch, examines the legal basis, procedures, and parliamentary institutions that perform oversight of government actions in the following countries: Canada, Germany, Italy, Japan, Poland, Sweden, the United Kingdom, and the United States.

A review of parliamentary oversight in these eight countries indicates that oversight powers usually derive from general authorization in constitutional provisions or basic laws. In addition, some countries have legislation that establishes oversight through designated parliamentary committees or through special oversight bodies. Enforcement of compliance with summonses to appear or to produce documents that are necessary for parliamentary inquiries are also regulated by legislation in a number of countries. In contrast, parliamentary oversight in the United Kingdom is governed by long-established customs and conventions.

Reviews of governmental actions are often conducted in committee hearings and committees of inquiries. Among additional oversight mechanisms are parliamentary oral and written questions and interpellations (a procedure in some legislative bodies of asking a government official to explain an act or policy, sometimes leading, in parliamentary systems, to a vote of no-confidence or a change of government). A vote of no-confidence or censure against the government as a whole (or, as indicated in the Law Library’s report, in some countries against a particular minister) is also a means of oversight.

Among the means of congressional oversight in the U.S. are committees’ subpoena powers; investigations of executive- branch activities and officials; Senate confirmation of high-level executive- branch appointees; authorization of agencies and programs; appropriation of funds for agencies and programs; and development of the federal budget.

The Law Library’s report indicates that several of the countries studied have established independent oversight bodies. In Canada, for example, there are nine federal oversight offices (“Officers of Parliament”), each responsible for an assigned area. In the U.S, similarly, there are several independent oversight agencies, including the Council of the Inspectors General on Integrity and Efficiency (CIGI); the Office of Management and Budget (OMB) (while mainly concerned with developing policy and budgets for the President, the OMB “also serves as an information clearinghouse for executive agencies and is a useful source of information about agency activities for investigative and oversight committees”); the Government Accountability Office (GAO); and the Congressional Budget Office (CBO).

In addition to independent oversight bodies, the Law Library’s report discusses a special parliamentary unit in the Italian parliament, the Service for Parliamentary Control (SPC). The SPC is tasked with specific oversight duties, including verification of the implementation of laws and regulations by the executive branch and verification of the government’s compliance with parliamentary legislation.

While not covered in the report, I found it interesting to note that the new Unit for Parliamentary Oversight, KATEF, was recently established in the Israeli Knesset (parliament). KATEF’s objectives include expanding Knesset oversight over the work of the government and providing Knesset members and committees with the necessary means to perform their oversight tasks. This will be achieved, according to KATEF’s head, by improving coordination between the Knesset and various government actors, as well as by assisting public participation through supporting the Open Governance Partnership, among other activities.

The Law Library’s Comprehensive Index of Legal Reports includes a number of legal reports on various aspects of governance, including on the topics of “Government Powers and Litigation” and “Government Spending.” To receive alerts when any new reports are published, you can subscribe to email updates and the RSS feed for Law Library Reports (click the “subscribe” button on the Law Library’s website).

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: https://westlakelegal.com/

Parliamentary Petitions Move Online in Australia and New Zealand

I recently saw a tweet from the Twitter account of the New Zealand Parliament regarding the launch of an electronic petitions system. I’m not sure if the Australian House of Representatives social media people also read that tweet, but the next day I saw its account had sent a tweet reminding people that a new e-petition platform had been launched in September 2016, following the start of the 45th Parliament. The right to petition the legislature or the government is a feature of various democracies around the world, and the move to online platforms for receiving petitions is an example of the impact of technology on how parliaments engage with the public.

Westlake Legal Group parliamentary-petitions-move-online-in-australia-and-new-zealand Parliamentary Petitions Move Online in Australia and New Zealand Gov 2.0 Global Law

Petition to Congress for embargo on munitions, 1/21/16. Library of Congress Prints and Photographs Division, //www.loc.gov/item/npc2008008643/.

A little history…

Information about the history of the right to petition parliament can be found on the websites of both the Australian and New Zealand parliaments. The relevant chapter of Parliamentary Practice in New Zealand, available online, states:

The earliest legislative acts of the English Parliament were often transacted by the Commons petitioning the King that a certain amendment be made to the law, but petitions as a source of legislation soon disappeared from the picture, apart from the field of private legislation. In New Zealand, the only vestige of the petition’s former role in legislating was formerly to be found in the field of private bills, which were initiated in the House by the presentation of a petition from the promoter of the bill. However, following changes to Standing Orders in 2011, a petition is no longer required to introduce a private bill. In 1993 Parliament passed legislation permitting the presentation of petitions seeking the holding of referendums. These statutory petitions are the subject of their own special rules[Links added by author]

The vast majority of petitions addressed to the House relate to public policy issues and private grievances of various kinds. From its first meeting in 1854, the House, continuing an ancient right exercised in England, has admitted petitions seeking redress for an almost unlimited range of real or supposed wrongs done to petitioners, advocating amendments to the law or changes in Government policy, or seeking public inquiries into unsatisfactory situations. By petitioning the House, the citizen can express his or her opinion on a subject of concern and address it in a public way to the country’s legislators. The act of petitioning may or may not have any practical consequences, but it ensures that the petitioner’s concerns are heard and given some consideration by those in authority. 

An Infosheet about petitions on the Australian website similarly states:

In the United Kingdom the right of petitioning the Crown and Parliament for redress of grievances dates back to the reign of King Edward I in the 13th century. The origins of Parliament itself can be traced back to those meetings of the King’s Council which considered petitions. The terms ‘bill’ and ‘petition’ originally had the same meaning. Some of the earliest legislation was in fact no more than a petition which had been agreed to by the King.

The present form of petitions developed in the late 17th century. The House of Commons passed the following resolutions in 1669:

That it is an inherent right of every Commoner of England to prepare and present petitions to the House in case of grievance; and of the House of Commons to receive them.

That it is the undoubted right and privilege of the House of Commons to adjudge and determine, touching the nature and matter of such Petitions, how far they are fit and unfit to be received.

The effect of these resolutions was inherited by the Australian Parliament and the right of petitioning thus became the right of every Australian.

In modern times the practice of petitioning Parliament does not have the same primary role as an initiator of legislation or other action by the Parliament as it did in early history. There are now other, and usually more effective, means of dealing with individual grievances—for example, by direct representation by a Member of Parliament, by the Commonwealth Ombudsman or by bodies like the Administrative Appeals Tribunal. It is hoped that the current arrangements for responding to petitions highlights petitioning as an important means of community involvement in the work of the Parliament.

Among the most famous and influential petitions in the two countries are the women’s suffrage petitions in New Zealand in the early 1890s, and petitions in the 1950s regarding a constitutional referendum related to indigenous people in Australia.

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LITTLETON, MRS. MARTIN WILEY, LEFT, WITH MONTICELLO PETITIONS (Harris & Ewing, 1912). Library of Congress Prints and Photographs Division, //www.loc.gov/item/2016864123/.

Petition processes

Each house of the Australian Parliament actually has its own rules for petitions. The House of Representatives now specifically allows e-petitions under its standing orders, while the Senate’s standing orders do not expressly address this. The Senate does, however, accept print-outs of petitions that have been posted online and signed electronically, provided they meet the other rules.

There are also different processes for the presentation of petitions to the two chambers. The House of Representatives has a standing Petitions Committee. The role of this committee is “to receive and process petitions, and to inquire into and report to the House on any matter relating to petitions and the petitions system. The Committee does not make recommendations on, or implement, any actions requested in petitions. If a petition is deemed to have met relevant Standing Order requirements by the Committee, it will be presented to the House and referred to the relevant Government Minister for response” (since 2008, when new petitioning procedures were introduced, “almost all petitions presented have been referred to Ministers and received responses”). A petitioner’s local member can also agree to present the petition to the House.

For a petition to be presented in the Senate, it must be presented by a Senator. However, “[w]hile there is nothing in the rules of the Senate to compel a senator to present a petition, most senators take the view that they should seek to present any petition forwarded to them, even if the views represented in the petition do not reflect the views of the senator presenting it.” Once presented, petitions are brought to the notice of the appropriate Senate committee, which may seek a reference from the Senate to consider the issues. Sometimes, Senators refer petitions to debate by the whole Senate.

In New Zealand, a Member of Parliament (not necessarily a petitioner’s local member) must agree to present a petition to the Parliament, and can only do so once it has closed for signatures. It is the role of the Office of the Clerk to check that petitions meet the requirements. Previously, up until 1985, a dedicated committee had reviewed petitions (in fact, there were two such committees before 1962), but now any petitions presented in the House are referred directly to the relevant subject matter select committee. Once the committee has discussed a petition, it reports back to the full Parliament. If the committee has any recommendations for the government, the government must respond to these within sixty working days.

There are various other technical rules around presentation and response processes. Generally, however, in both Australia and New Zealand, petitions that comply with the format and content requirements will receive some form of consideration. It is worth noting that neither country requires a certain amount of signatures to be obtained in order for a petition to be presented to the parliament. The New Zealand Parliament’s guide for petitions states that “[y]ou do not have to collect signatures. A petition with just your signature will go through the same process as one with many signatures.” The Australian House of Representatives frequently asked questions on petitions states that “[t]he minimum number of signatures required is one (1). The person requesting the petition (the ‘Principal Petitioner’) is the first signature on each petition.”

Standard requirements for petitions

In New Zealand, petitions of parliament must

  • be in English or Māori
  • use respectful and moderate language
  • ask the House of Representatives to take a defined action
  • not contain irrelevant statements.

The guidance also states that “[p]etitioning Parliament should be your last course of action. If you have other legal options, like going to an Ombudsman or to court, then your petition will not be accepted.”

Petitioners of the Australian House of Representatives are advised to make sure their petition is

  • about something that the House of Representatives is responsible for (the House cannot take any action on issues that are the responsibility of individuals, local councils, State or Territory governments or private companies)
  • addressed to the Speaker and the House, for example not the Prime Minister or an individual Minister
  • clear what you are asking for
  • does not promotes illegal acts and
  • does not contain language that is offensive (another page also says that petitions must be in English and written using “moderate language”)

In order for a petition to be accepted by the Senate:

  • the petition must be addressed to the Senate
  • it must contain a request for action by the Senate or the Parliament
  • the text of the petition must be visible on every page
  • only original documents will be accepted – no faxes or photocopies
  • no letters, affidavits, or other documents can be attached

Features of the e-petition sites

The Australian and New Zealand e-petition websites are structured a little differently. The New Zealand site takes petitioners through a step-by-step process, requiring the completion of one separate step before moving on to the next. This includes a step for searching for existing petitions that are similar. A bar at the top of the form shows you what step you are at and what you have left to complete. The Australian site also provides an online form, with the first page requiring the reasons and request for action boxes to be filled out before moving to the next stage. The first page does not show what steps are remaining.

Both sites also allow users to find and sign existing petitions online. The New Zealand site lists the petitions that are open for signature, along with the number of signatures that each has currently. A search box on the left side of the page also allows filtering by date. Once you click on a petition you can read the details, see when it is closing for signature, and click a button to sign the petition (there is also an option to view the details of all the petitions on one page). This takes you to a form where you provide your name and email address and confirm that you have read the privacy disclaimer before clicking the “Sign Petition” box. There is also a “share” toolbar at the bottom of the page for each petition so that people can spread the word on social media or by email.

Similarly, on the Australian site you can view all of the petitions currently open for signature, their closing date, and the current number of signatures. You can also just view petitions that are “recent” or “popular,” and there is a search box as well. Clicking the “sign” button beside a petition takes you to a form that requires your name and email address, and to check a box stating that you agree to abide by the terms and conditions for ePetitions (and also declare that you are not a member of parliament). Each page on the site also has a share toolbar.

I should also note that, apart from the federal parliament, some Australian state parliaments also allow e-petitions, specifically Queensland and Tasmania, although they seem to require that a request form to be filled out and printed, rather than petitions being submitted directly online. Once published online, people can join or sign petitions using the websites.

E-petition platforms in other countries

In researching this post, I learned that the United Kingdom House of Commons launched a new e-petitions site in July 2015, enabling online petitions of both the Parliament and the UK government. E-petitions were actually previously authorized by 10 Downing Street, which first launched its platform in 2006, with petitions directed to government departments. The UK government later launched a new site in 2011. Under the old approach, there was only a prospect of response if a petition obtained more than 100,000 signatures. Now, if a petition gets 10,000 signatures the government will respond, and if it gets 100,000 the petition will be considered for debate in Parliament.

Earlier adopters of e-petitions were the Scottish Parliament (active since 2000) and the Welsh National Assembly. The German Bundestag has had an e-petition portal since 2005, and I also located sites in Ireland and Luxembourg. The European Parliament has such a portal as well. A comparative study of the right to petition in European countries, which includes a discussion of e-petitions starting at page 25, was published by the European Parliament in 2015. The library of the Parliament of Victoria, in Australia, also published a research paper that examines different systems in 2016.

Outside of Europe, the Canadian House of Commons system for receiving petitions online went live in December 2015. The guidance for e-petitions shows that people need to create an account in order to submit a petition. They also need a member to sponsor the petition and must obtain at least 500 signatures in 120 days in order for the petition to be presented in the House. Once that occurs, the government has 45 days to respond.

In 2016, an Australian blogger wrote an interesting comparison of the features of the new Australian, Canadian, and UK sites, as well as the “We the People” system on the White House website in the U.S. One observation, for example, was that with regard to the Australian system, “[t]he entire process felt very cold and impersonal, unlike the UK and US experiences – which were warm and inviting.” Overall, he was critical of the Australian approach and thought the site could be designed better with the user in mind.

The Petitions Committee of the Australian House of Representatives is actually currently examining the e-petitioning system, including the extent to which it has “met the expectations of Parliamentarians and members of the public” and possible future enhancements.

Do you know of any other parliaments (or governments) with e-petition portals?

Westlake Legal Group parliamentary-petitions-move-online-in-australia-and-new-zealand-2 Parliamentary Petitions Move Online in Australia and New Zealand Gov 2.0 Global Law

Veterans appeal to Congress for bonus. Scene on the Capitol steps in Washington today when a thousand veterans presented a truck load of petitions to Congress for immediate payment of the bonus. On the extreme right is Paul Wolman, past Grand Commander of the Veterans of Foreign Wars, is presenting the petitions to Rep. Rainey, of Illinois. Others on the picture are Rep. Snell; Rep. Patman; and Senator Brookhart, 4/8/32 (Harris & Ewing, 1932). Library of Congress Prints and Photographs Division, //www.loc.gov/item/2016879557/.

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: https://westlakelegal.com/

Uber at the ECJ – The Legal Saga in Europe Continues

The following is a guest post by Catharina Schmidt, a foreign law intern working in the Global Legal Research Directorate of the Law Library of Congress.

While Uber recently achieved partial success in the legal fight over a key component for operating driverless cars in the United States, it suffered a defeat at the European Court of Justice (ECJ). On December 20, 2017, the ECJ issued a highly anticipated ruling on the legal classification of Uber’s services, which connect users of its smartphone application to non-professional drivers using their own vehicles. Uber’s business model has been the subject of several lawsuits in different countries in Europe and India, among others. The case at issue was brought before the ECJ by a court in Spain requesting a preliminary ruling (Asociación Profesional Elite Taxi, Case C-434/15). Whereas Uber claimed that it only provides a technical platform, the ECJ held that Uber offers transportation services which can be made subject to an authorization scheme by the Member States in the European Union (EU), similar to the ones used for taxis.

Westlake Legal Group uber-at-the-ecj-the-legal-saga-in-europe-continues Uber at the ECJ – The Legal Saga in Europe Continues In the News Global Law

A line of cabs waiting for customers. (Photo by Flickr user oatsy40, Feb. 29, 2012.) Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

Background on the Main Proceedings and the Main Question Referred

In 2014, a professional association representing taxi drivers in the city of Barcelona brought an action before a local court seeking a declaration that the activities of Uber in Spain must be qualified as unfair practices under the Spanish rules on competition. The plaintiff stated that neither Uber nor the non-professional drivers have the licenses required to provide taxi services in Barcelona. In order to decide whether the services provided by Uber require previous administrative authorization, the Spanish court considered it necessary to determine whether the services are transport services, “information society services,” or a combination of both. According to the Spanish court, Uber’s practices could not be qualified as unfair practices under the Spanish rules on competition if they are “information society services.”

“Information society services” is a name used in EU legislation for digital service providers. They are defined as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.” “Information society services” are regulated by the EU and benefit from the freedom of establishment for service providers and the free movement of services as provided for in the Services Directive and the Treaty on the Functioning of the European Union (TFEU).

Therefore, the ECJ was called upon to rule on whether the service Uber provides should be classified as a “service in the field of transport” within the meaning of article 58, paragraph 1 of the TFEU, or whether it was covered by article 56 (freedom to provide services) of the TFEU, the Services Directive, and the Electronic Commerce Directive 2000/31/EC. Services that fall under article 56 of the TFEU are subject to common EU rules, whereas the “freedom to provide services in the field of transport” falls under article 58, paragraph 1 of the TFEU, which allows the Member States to decide on the conditions under which these services are to be provided. The Services Directive does not apply to transport services either.

Westlake Legal Group uber-at-the-ecj-the-legal-saga-in-europe-continues-1 Uber at the ECJ – The Legal Saga in Europe Continues In the News Global Law

Uber ad. (Photo by Flickr user Alper Çuğun , May 28, 2015.) Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

The Ruling of the ECJ

The ECJ ruled against Uber. It declared that the service provided by Uber connecting individuals with non-professional drivers using their own vehicles must be classified as “a service in the field of transport” within the meaning of EU law.

According to the ECJ, an intermediation service, which enables the transfer by means of a smartphone application of information concerning the booking of a transport service between the passenger and the non-professional driver can be qualified, in principle, as an “information society service” within the meaning of article 2(a) of the Electronic Commerce Directive. The Court stated, however, that a service such as Uber’s cannot be viewed in isolation. The Court held that Uber concurrently offers transport services, which it renders accessible through the smartphone application and whose general operation it organizes for the benefit of individuals who wish to book a ride. (Case C-434/15, supra, paras. 35–38.)

The ECJ held that without Uber’s smartphone application the drivers would not be able to provide transport services and the potential passengers would not be able to book these services. The ECJ further argued that Uber determines to a significant extent the service conditions by limiting at least the amount of the fare, collecting it from the client, and paying a certain amount to the driver, as well as monitoring the quality of the vehicles, the drivers, and their conduct. Moreover, the ECJ points out that the driver could be excluded if he or she provides poor service. (Id. para. 39.)

The ECJ concluded that the service Uber provides must be classified as “an integral part of an overall service whose main component is a transport service.” The ECJ took the view that the service at issue must therefore be regarded not as an “information society service” but as a “service in the field of transport.” (Id. para. 40.)

The ECJ stressed that this classification is fully in line with its case law, according to which the concept of “services in the field of transport” contains not only mere transport services as such “but also any service inherently linked to any physical act of moving persons or goods from one place to another by means of transport.” (Id. para. 41.)

As the service provided by Uber is to be regarded as “a service in the field of transport,” it is not covered by the freedom to provide services pursuant to article 56 of the TFEU, but instead by article 58, paragraph 1 TFEU, according to the ECJ. As a consequence of this decision, each Member State can decide whether the service provided by Uber should be made subject to the same regulations as traditional taxi operators. (Id. paras. 44–47.)

Westlake Legal Group uber-at-the-ecj-the-legal-saga-in-europe-continues-2 Uber at the ECJ – The Legal Saga in Europe Continues In the News Global Law

Taxi Cabs vs Uber. (Photo by Flickr user Aaron Parecki , Jan. 13, 2015.) Used under Creative Commons license, https://creativecommons.org/licenses/by/2.0/.

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Is the Sound of Children Actually Noise?

This post is coauthored by Jenny Gesley and Sayuri Umeda, foreign law specialists at the Global Legal Research Center.

At some point or another, all of us have been exposed to children’s noise, be it as a parent or a neighbor, at the playground or at a school. And did we not wish for the noise to stop so that we could relax and gather our thoughts? But wait: is it correct to call it “noise,” which is defined as an unwanted, undesired, and unpleasant sound? Some countries, in particular Germany and Japan, might disagree. With a rapidly aging population and low birthrates, both Germany and Japan actually welcome the sound of playing children.

Germany codified an exception to the definition of “harmful environmental effects” for children’s noise on playgrounds or from day care centers in its Federal Immission Control Act, and a recent court decision in Japan argues along the same lines. The following blog post will give an overview of the noise regulations applicable to children’s noise in Germany and Japan.

Westlake Legal Group is-the-sound-of-children-actually-noise Is the Sound of Children Actually Noise? Global Law

Schools. Interior with children painting, reading and playing. Gottscho, Samuel H., photographer. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/gsc.5a00389.

Germany (by Jenny Gesley)

At the end of 2016, Germany had an overall population of 82.5 million which is an increase of 346,000 in comparison to the previous year. However, most of the increase in population can be attributed to immigration. Although the fertility rate of German women has stabilized, it is still one of the lowest in the European Union (EU), with only 1.5 children per woman as compared to the EU average of 1.58. An average of 2.1 children per woman is needed to maintain population.

Noise complaints are fairly commonplace in Germany. Neighbors will not hesitate to tell you if you have exceeded the permissible noise level, played music during quiet hours, or that they were woken up by your children running in the upstairs apartment. This is not surprising in a country in which Sunday as the day of rest and spiritual improvement is constitutionally guaranteed. Every city has a noise code which is strictly enforced. If a noise complaint does not work, neighbors are more than willing to let a court decide. German courts are flooded with thousands of such “neighbor cases” every year.

As a reaction to an increasing number of lawsuits against children’s noise emanating from playgrounds, day care centers, and similar places, the German government decided to amend the Federal Immission Control Act in 2011 to give privileged status to such children’s noise and to “provide a clear legislative signal for a child-friendly society.” The amendment exempts certain children’s noise from the definition of “harmful environmental effects.” “Harmful environmental effects” are defined as “… any immissions which, because of their nature, extent, or duration, are likely to cause hazards, significant disadvantages, or significant nuisances to the general public or the neighborhood.” (Federal Immission Control Act, §3, para.1). “Immissions” are defined as “air pollution, noise, vibration, light, heat, radiation, and similar environmental effects (emissions) which affect human beings, animals and plants, the soil, the water, the atmosphere as well as cultural assets and other material goods.” (Id. §3, paras. 2 & 3). The amendment of the Federal Immission Control Act states that:

(1a) Noise which is emitted by children in day care centers, on playgrounds, or similar places like ball courts is generally not a harmful environmental effect. Immission limits and benchmarks shall not be used to evaluate the noise. (Translation by author).

The German government emphasized that children’s noise is subject to a special principle of tolerance from society. It stated that “noise from playing children is an expression of child development and blossoming and therefore has to be tolerated. Claims against it must be limited to rare individual cases.” By codifying that principle of tolerance, it is ensured that children’s noise is not considered a harmful environmental effect.

Westlake Legal Group is-the-sound-of-children-actually-noise-1 Is the Sound of Children Actually Noise? Global Law

Children playing under the trees at Grand Val, a large estate near Paris, which has been converted into a country home for the delicate children among the refugees received from St. Sulpice near Paris. ARC. 1918 or 1919. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/anrc.02666.

Japan (by Sayuri Umeda)

Although Japanese have the highest life expectancy, Japan is an aging society with a low birth rate. Japan needs more babies, but the fertility rate of Japanese women in 2016 was 1.44 children per woman. Having effective countermeasures to the falling birthrate is an important mission for the Cabinet Office. The Cabinet Office publishes the Declining Birthrate White Paper every year. As part of a set of measures to ease hardships for parents of small children and future parents, the government plans to increase the number and quality of day care centers, kindergartens, and after-school facilities and programs. Because Japan has a shortage of day care centers, securing their openings is important.

Recently, it has become a big issue in Japan that openings of day care centers are significantly delayed or completely given up because of opposition from nearby residents. Noise nuisance from day care centers is one of biggest reasons for the opposition. In a recent case, Japan’s Supreme Court dismissed an appeal by a person who was not satisfied with the lower courts’ decisions that applied the general noise regulations to noises from a day care center and held that the noise level was within the limits. According to a law firm newsletter, the High Court emphasized the public’s need of the day care center when it evaluated whether the noises were socially acceptable. (The judgment was not published.)

Japanese people looked for a method to balance the protection of nearby residents and the needs of child care facilities and studied the above-mentioned German law. The Tokyo Metropolitan Government amended its ordinance to remove preschool children’s voices and sounds from activities such as singing and bouncing balls as a subject of noise regulations in 2015, emphasizing the need to promote small children’s development through play and activities.

So far, the National Diet (Japan’s parliament) has not planned to enact a similar law. In Japan, more people seem to favor solving this issue by establishing good communication between day care centers and neighbors, encouraging day care centers to limit loud noises, and asking neighbors to compromise.

Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: https://westlakelegal.com/