Parrilli Legal

Il diritto del design in Italia: informazioni utili per designers e creativi

2/9/2015

Parrilli Legal inizia la pubblicazione di una serie di brevi documenti dedicati al Diritto del Design in Italia. Le prime due presentazioni, dedicate alla protezione del marchio e del modello e ai rimedi nelle procedure di registrazione di marchi e modelli comunitari, possono essere consultate qui sotto.

Buona lettura!

0 Comments

The Brazilian Internet Bill of Rights Finally Entered into Force

1/5/2015

0 Comments

After some years of discussion at political and academic level, the Internet Bill of Rights (Law on the Use of the Internet nr. 12.965 of 23 April 2014) has been approved by the Brazilian Congress and signed by the President of the Republic Ms. Rousseff on 23 April 2014. The law entered into force at the end of June 2014.

The main principles and users’ rights

The Internet Bill of Rights sets principles, safeguards, rights and duties for the use of the Internet in Brazil and establishes guidelines for their implementation by the public authorities at federal, State and municipal level.
The basic principle and pillar of the Marco Civil is that the use of the Internet shall guarantee the respect for the freedom of expression, together with other foundations, including the recognition of the social function of the Internet.

The canons that govern the use of the Internet in Brazil include the respect for privacy and data protection rights, the net neutrality, the security of the Internet, the defence of the participative nature of the Internet and the business freedom on the net.
The Internet Bill of Rights is a very progressive text in the sense that it recognises inter alia the right of every person to have access to the Internet, provided that such access is fundamental to exercise citizens’ rights, and the duty of public authorities to promote the use of open source software and tools.

One of the most substantial parts of the law is devoted to the users’ rights related to the access and use of the Internet, namely:

The privacy right and the right to obtain compensation in case of violation of this right;
The recognition that the flow of communications through the Internet and the content of private communications that have been stored (in our view, including those stored on the Cloud or on any server not under the direct control of the user) are inviolable, except in case of judicial order;
The users’ right not to have their access to the net suspended, except in case of debt with the access provider related to the provision of this service - the law therefore recognises that the access to the Internet is not necessarily for free and that providers can charge fees;
The obligation for the access providers to maintain the quality levels agreed with the users - the Marco Civil is to our best knowledge one of the few laws to explicitly acknowledge the existence of and role played by Service Level Agreements;
The duty for Internet service providers to provide users with clear and complete information including information about access data storage;
The prohibition for access and service providers to share users’ personal data with third parties except in case of free, explicit and informed consent by the user or if allowed by law;
The obligation for access and service providers to provide users with clear and complete information about the processing of their personal data. The law states that such processing is allowed if the purpose (a) justifies the processing, (b) is not prohibited by law, (c) is specified in the service agreement or in other contracts with the users;
The principle that personal data can be processed only with the explicit consent of the user, to be given in an ad hoc box separate from the other contractual provisions;
The users’ right to have their data deleted at their request at the end of the contractual relation with the provider;

The rule that use policies set forth by access providers and service or application providers must be public and clear;
The users’ right to accessibility (most probably to the Internet, although the law does not clearly specify the object of this right) taking into account inter alia the physical, intellectual and mental conditions of the users concerned;
The applicability of consumers’ rights as provided under Brazilian legislation.

Contractual provisions conflicting with these principles are void.

The Marco Civil and the net neutrality

Net neutrality is another key principle of the Marco Civil. Internet providers cannot discriminate the processing of any data on the net based on the content, the origin, the destination, the service provided etc., unless if such discrimination is justified for technical reasons or to give priority to emergency services.

The applicability of the Brazilian Marco Civil

The Brazilian Internet Bill of Rights is primarily applicable to all processing operations where at least one of the following acts take place in Brazil: the collection, storage, custody, processing of records, personal data or communications by Internet access providers or Internet service providers. However, the law is applicable also in the following cases:

When the data or communications are collected in Brazil and at least one of the sending or receiving terminals is located in Brazil;
When the activities above are performed by a foreign legal entity not established in Brazil and this legal entity offers services to Brazilian users or at least one company of the economic group to which the entity belongs is established in Brazil. In this case the sanctions for the violation of the law are up to 10 % of the income of the economic group in Brazil in the last tax year.

Data retention obligations in the Marco Civil

The Marco Civil sets forth specific obligations regarding data retention periods:

The retention period for data regarding the users’ access to the Internet is set at 1 year, but the police, the competent public authorities and the public prosecutor can ask providers to retain the data for a longer period;
The retention period for data regarding the users’ access to Internet services, such as e-mail and other applications, is set at 6 months (and the above-mentioned exception applies).

The liability of providers

The Marco Civil contains provisions directed to limit the liability of providers, similarly to the options followed by the lawmaker in Europe and in the US. As far as Internet access providers are concerned, they are not responsible for damages arising from third parties’ content.
Similarly Internet service providers are not liable for damages arising from third parties’ infringements except when a judicial order was issued to remove or make inaccessible the infringing content.

Conclusions

The approval and entry into force of the Marco Civil is a very important milestone in the consolidation of the national IT legal framework in Brazil. Before the Marco Civil, for instance, Brazil did not have a coherent set of rules that govern the processing of personal data in Internet environments.

At the same time it is remarkable that Brazil recognises the crucial importance of the Internet for business and for the society as a whole and set rules aimed to make the Internet a space of democracy, free competition and social and cultural development.
As far as the relations between Brazil and EU are concerned, however, the adoption of the Marco Civil does not necessarily mean that Brazil will be recognised to have an adequate level of data protection by the European Commission. This because the Law on the Use of the Internet applies only to data processing activities related to the Internet and Brazil does not have yet a comprehensive data protection legal framework.

Since the entry into force of the Marco Civil we noticed a dramatic evolution of the policies applied by Brazilian companies to their users, which are often based on the models adopted by European providers. Such a progression is coherent with the fact that the data protection provisions in the Marco Civil have been inspired by the EU privacy legislation.

Furthermore we expect that the Marco Civil will facilitate business in Brazil for IT companies due to the existence of a developed and clear legal framework that sets users’ duties and providers’ obligations.
From a different perspective we welcome the fact that the Marco Civil, although drafted as a Bill of Rights, contains not only general guidelines but also objective and directly applicable provisions. For these reasons the Marco Civil is likely to have positive effects to open the country to foreign Internet business, including SMEs. At the same time Brazilian providers will be facilitated to sell their services abroad since they will be more and more used to adopt higher standards, primarily as regards data protection and data retention, consistent with those required to operate in the European or American market.

0 Comments

The Tax Shelter for Audiovisual Productions in Belgium: a Successful Tool under Reform

10/6/2014

0 Comments

After ten years the Belgian regime of the tax shelter has been reformed. The amendments will be effective when the Law of 12 May 2014 amending article 194 ter of the 1992 Code of Income Taxes will enter into force.

The tax shelter for the production of audiovisual works has been so far an effective tool to strengthen the Belgian film industry and to attract investments in the country, although it has been criticized for the possibility to generate abuses and frauds. We remind that the tax shelter is in force since 2004 and is regulated by article 194 ter of the 1992 Code of Income Taxes.

In order to increase transparency of the system, to avoid distortions and misconducts by investors and to prohibit investors from exploiting the produced work from the financial point of view, the Belgian Parliament enacted the Law of 12 May 2014 amending the tax shelter system.

In summary the most important features of the reform are that:

The tax shelter has been extended to European audiovisual works, including short films;
The investors cannot receive rights on the revenues of the work, as said above;
The tax value of the tax shelter certificate (see below) is set at 70 % of the real production costs incurred within the European Economic Space. A part of this value must correspond to direct and indirect costs incurred in Belgium;
A preliminary tax exemption equal to 310 % of the sums that the investor has paid in execution of the framework agreement (see below) is foreseen if some conditions are met and modalities are respected. The preliminary exemption is limited to 150 % of the expected tax value of the tax shelter attest based on the planned budget as described in the framework agreement;
The framework agreement between the producer and the investor(s) plays a pivotal role in the new tax shelter system. Other than containing the abovementioned information and elements, the framework agreement must be registered with the federal tax authorities within one month from signature;
The granted tax exemption for each investor is limited to 500.000 € per taxable period and to 750.000 € per year;
Both the producing company and the intermediaries (i.e. the third parties that assist the investor in obtaining the tax exemption) must be licensed by the Minister of Finance, based on procedures and conditions that will be set forth in an ad-hoc Royal Decree;
The tax shelter certificate is provided by the federal tax authorities based on the qualifying costs for the production of the audiovisual work. The value of the tax shelter certificates granted for each work that is produced is limited to 15 million €;
The tax shelter certificate can be assigned to another investor or it can be divided and assigned to a plurality of investors, provided that the investor(s) sign(s) a framework agreement and pay(s) the sums indicated in the agreement within 3 months from the signature;
The signature of the framework agreement is the starting point of a period of 18 months for the effective performance of the costs for the production of the work;
The tax benefit becomes definitive when the tax shelter certificate is issued as said above, at the latest on 31 December of the 4th year following the year of signature of the framework agreement.

The law amending the tax shelter regime will enter into force on the first day of the second month following the preliminary approval of the law by the European Commission and it will apply to framework agreement signed as from that day.

0 Comments

La modifica della legislazione belga in tema di acquisto della cittadinanza: sviluppi e prospettive

2/2/2012

0 Comments

E’ attualmente all’esame del Parlamento una proposta dei liberali fiamminghi che innalza i requisiti per acquisire la cittadinanza belga. La legislazione belga in tema di acquisizione della cittadinanza è attualmente in fase di revisione da parte del Parlamento federale. Nel caso in cui la proposta di legge presentata nell’ottobre 2010 dal gruppo liberale fiammingo Open-Vld (e successivamente emendata in varie occasioni: per maggiori informazioni vedi il sito della Camera) dovesse essere approvata dalle Camere, il quadro legislativo generale in materia di acquisizione della cittadinanza è destinato a cambiare radicalmente, con un impatto anche per gli Italiani residenti in Belgio che desiderassero ottenere la nazionalità del paese di accoglienza.

La modifica prospettata mira in modo particolare a riformare radicalmente l’acquisto della cittadinanza mediante la procedura cosiddetta di déclaration de nationalité/nationaliteitsverklaring, attualmente accessibile al candidato cittadino belga in seguito ad un periodo di residenza in Belgio della durata di sette anni continuativi (oltre a varie altre ipotesi non prese in considerazione in queste righe).

La déclaration de nationalité/nationaliteitsverklaring, nel caso in cui la riforma fosse approvata dal Parlamento, condurrà all’acquisto della nazionalità belga in quattro ipotesi:
1. Soggiorno legale in Belgio dalla nascita; o
2. Soggiorno legale in Belgio da cinque anni accompagnato dalla prova della “integrazione sociale” e della “partecipazione economica” del richiedente; o
3. Soggiorno legale in Belgio da cinque anni accompagnato dalla “integrazione sociale” e da legami matrimoniali o familiari con un belga; o
4. Soggiorno legale in Belgio da dieci anni accompagnato dalla prova della partecipazione del richiedente alla “vita della comunità di accoglienza”, cioè almeno dell’integrazione sociale o della partecipazione economica della persona interessata.

Le modifiche più rilevanti rispetto alla legislazione attualmente in vigore riguardano il termine per poter ottenere la cittadinanza belga (che muta da sette anni a cinque o dieci anni di soggiorno legale nel paese) e l’introduzione di alcuni criteri addizionali quali l’integrazione sociale, la partecipazione economica, la partecipazione alla vita della comunità di accoglienza e, nelle ipotesi richiamate sopra ai numeri 2, 3 e 4, la conoscenza di una delle tre lingue ufficiali del Belgio.

La proposta di legge analizzata in queste righe è stata attentamente vagliata dal Consiglio di Stato, che ha messo in luce alcuni punti critici della riforma prospettata suggerendo miglioramenti. In particolare, il Consiglio di Stato ha sottolineato, in merito al requisito della continuità del periodo di soggiorno legale in Belgio (cinque o dieci anni) che, in virtù del diritto comunitario, sono ammissibili dei periodi di assenza del richiedente dal Belgio, e che quindi il legislatore deve tenere in considerazione tale possibilità nel calcolo del periodo di soggiorno richiesto per poter accedere alla cittadinanza. Tale ipotesi potrebbe essere rilevante per l’Italiano residente in Belgio che si debba assentare per qualche mese, per esempio dovendo ritornare in Italia per ragioni familiari o professionali.

Per quanto riguarda il requisito della conoscenza di una delle lingue nazionali, fortemente legato a quello dell’integrazione sociale, la proposta di legge enuncia che la prova relativa può essere fornita mediante la presentazione di un diploma o certificato (almeno di scuola superiore), mediante un attestato di formazione professionale riconosciuta dalle autorità competenti o mediante la frequenza di un corso di integrazione organizzato dalle autorità del luogo di residenza del candidato cittadino. Il Consiglio di Stato ha richiamato l’attenzione del legislatore sulla possibile violazione del principio costituzionale di uguaglianza e sulla (potenzialmente) problematica applicabilità pratica dei requisiti proposti.

Assai delicata è anche la condizione della partecipazione economica del richiedente in modo tale da poter sostenere economicamente se stesso e i familiari a carico. I giudici del supremo organo amministrativo sottolineano come l’applicazione letterale di tale condizione possa portare all’esclusione dal processo di ottenimento della cittadinanza belga delle persone non più economicamente attive per ragioni anagrafiche o di salute.

La proposta di legge lascia alcuni punti importanti non chiariti, soprattutto per quanto riguarda l’integrazione del richiedente nella comunità di accoglienza dopo dieci anni di soggiorno legale in Belgio. Tale modalità di acquisizione della cittadinanza belga pare essere quella con maggiore impatto pratico per gli italiani residenti in Belgio che non abbiano ottenuto un diploma scolastico o accademico nel paese di accoglienza. In pratica, ci si chiede se la proposta attualmente al vaglio del Parlamento consente ad uno straniero residente per esempio nelle Fiandre, che lavora a Bruxelles e che parla esclusivamente francese, di rispettare i requisiti legali per diventare cittadino belga. Il testo legislativo proposto lascia adito a dubbi in materia, e pare difficilmente accettabile a livello politico e amministrativo.

Un emendamento presentato recentemente da un deputato del Vlaams Belang mira esattamente a imporre il requisito della conoscenza della lingua della comunità di residenza (dunque, tralasciando il caso della zona germanofona, neerlandese nelle Fiandre, francese in Vallonia e una delle due lingue a Bruxelles). L’emendamento in oggetto merita di essere citato anche perché ha come obiettivo quello di cancellare la possibilità di essere in possesso della doppia cittadinanza, introducendo la richiesta che il candidato cittadino belga perda la cittadinanza iniziale in virtù della legge del paese di provenienza o che si impegni formalmente a rinunciarvi. La logica sottostante è che bisogna rigettare categoricamente l’ipotesi di multipla nazionalità.

Per fortuna non pare realistico che tale emendamento riscuota grande successo in Parlamento, ma allo stesso tempo indica che c’è ancora una certa resistenza politica (benché marginale) all’idea che una persona possa appartenere a due, o più, comunità nazionali.

0 Comments

Some considerations about the metissage of our world

12/12/2010

0 Comments

Working in the field of asylum and legal protections for refugees and immigrants brings to carry on many meditations, considerations and to try to give an answer to many questions. Not only, of course, directly related to the law and to its application. The BIG issue concerns the situation we are facing and the future of the world were we live in.

I had many occasions to meditate about all these problems while reading a very interesting essay of Jean-Claude Guillebaud, published in 2008 and whose title is “Le commencement d'un monde. Vers une modernité métisse.”

Are we really facing the beginning of a new world? I think yes and no. What does it mean “a new world”? Is it reasonable to compare an old world to a new one that is substituting the previous one? Of course not, and probably I share this opinion with Guillebaud.

But...it is not possible to deny that things are changing very fast, as fast as never before probably. Or simply we want to be so important in the history that we pretend that we are establishing a record. Never mind, this is not the pivotal issue.

The issue is the change of the world, the fact that the political and economic situation is changing so rapidly that we all are a bit confused. We were used to consider the United States together with Europe as the center of the world, where all things happen and where people from other continents should come to learn. Learn what? Well, basically everything, from technology to democracy and human rights.

This model is definitely over: as Guillebaud states, we are not any more the centre of the world. I thinks it's difficult not to agree with this statement. Nobody would think that the inhabitants of Beijing or Mumbai live in the outskirts of the world. The same applies to big South African or Brazilian cities.

Two important issues:

Is that bad? Definitely not. I answer to this question through another question: why should the Western world be the only one that counts?
What does it imply? A huge metissage (mixing of 'races' and cultures) of the world, where it would be extremely difficult to differentiate what is black and what is white, i.e. what is American and what is Asian, European or South-American.

I definitely love the idea of metissage: a mix of cultures where the mutual respect shall prevail and where we all should be free to develop some components of our heritage, without imposing it to the others.

One cannot deny that the practical implementation of this model is difficult, that tensions naturally arise and that probably many people would prefer to live in a world where...white is white and black is black and they see each other only during the summer holidays (preferably with a certain safety distance).

We may like it or not, but we already live in a metissage-world: is not China, that took the western model of capitalism, an example of metissage? Are not Indian engineers, that are employed in the Indian Silicon Valley, another example? The list can be very long – too long for a blog.

And so what: just don't worry and be happy? No, we can't be happy until the politics (in concrete terms, many political parties and political leaders) will say that the metissage does not exist, or that it is bad and therefore that we should go back...to the old good time where white was white and black was black.

First of all, these old good times never existed. Secondly, it's very difficult to miss those times where we were the center, we were good, we were beautiful and the others were just a problem, or an occasion to accrue our power or our wealth. Please, just let us dream a world where no superpowers exist and where the global rules are not written by a small minority of world citizens.

0 Comments

Book review: Internet Banking and the Law in Europe...with final question

11/29/2010

0 Comments

Some time ago I had the occasion and the pleasure to read the following contribution to the debate about electronic banking and European regulations: “Internet Banking and the Law in Europe. Regulation, Financial Integration and Electronic Commerce”, by Apostolos Ath. Gkoutzinis, Cambridge University Press.

This book tackles the issue of internet banking in Europe from different legal perspectives, including legal barriers to market access, governance of cross-border electronic banking activities, conflict of rules in the field of the regulation of cross-border banking activities, applicable law and regulatory responsibility in cross-border banking activities.

One of the main questions that are addressed by the author regards the power allocated to the national baking regulators to monitor the activities of foreign (e.g. of other EU countries) banks: according to the (correct) interpretation of the applicable Directives (EU Financial Services Directives, Banking and Investment Services Directives, Banking Consolidation Directive, Electronic Commerce Directive) proposed by the author, the country of origin or the home country of the financial institution (e.g. the country where the institution is established) should have the sole power to monitor its activities, with effects in all the EU Member States.

From the legal point we must agree with these considerations: it has to be said that all these Directives move from the idea that, in practice or at least in theory, the regulatory authorities of all the Member States operate at a comparable level. The experience of the last months show that this statement is far from being true.

A question for the readers: maybe we have to realize that the harmonization of functions, powers and efficiency of national regulatory authority in the EU is fictitious and that it should be appropriate that EU States do not trust each other when talking about financial issues and their regulation?

0 Comments

Book review: International Refugee Law and Socio-Economic Rights

11/22/2010

2 Comments

It is common experience of all lawyers dealing with immigration and refugee claims that many, if not the majority, people applying for refugee protection in Europe are victims of violation of social and economic rights rather than of 'traditional' political rights.

This consideration moved Michelle Foster, lecturer at the University of Melbourne Law School, to analyse to what extent the violation of socio-economic rights can justify successful refugee claims in the framework of international refugee law, namely the Geneva Convention of 1951. The interesting and pioneering considerations of Prof. Foster are contained in the book “International Refugee Law and Socio-Economic Rights. Refugee from Deprivation”, published by Cambridge University Press.

Prof. Foster moves from the assumption that the strong dichotomy between economic migrants and refugees is outdated and that it is not possible to say any more that everyone leaves his or her country due to economic constraints cannot be eligible for refugee protection.

For many years refugee law has been seen (in general and not precise terms) as devoted to the protection of people, usually part of the national elite, who had to leave their country due to divergence of political views with the government – of course, such a divergence should bring to persecution suffered by the refugee seeker.

The political reality has dramatically changed in the last decades so that the notion and object of persecution shall be extended too. Prof. Foster links persecution and violation of human rights: those rights, comprised in the most important and widely accepted treaties and covenants, shall be closely related to the Geneva Convention and to the notion of persecution. Basically there is persecution when human rights, although to a different extent, are violated and , most importantly, it should not be possible to dismiss refugee claims due to the fact that the asylum seeker declared a violation of social and economic rights in his/her country.

Although not expressly declared by Prof. Foster, it seems that the refugee law shall be closely linked to the notion of dignity: the dignity of a person is offended when he is persecuted due to his/her political opinions but this is the case even if a person is banned from school or university due to his racial or ethnic background. The concept of dignity is not a legal one, at least strictly speaking: that is why the effort of Prof. Foster to rationalize the need of protection for refugee seekers who declare violations of their socio-economic rights and to link it to the human rights treaties and covenants has to be appreciated.

In more general terms we have to say that refugee law must take into account the new dimension of the world order, or better, the new dimension of the world disorder. Very often, in fact, people must escape not because a national, strong, government persecutes him but because the government cannot do anything to prevent the persecution of its citizens by criminal, terrorist or political groups. This is the case in Iraq, Afghanistan, Kosovo, many African countries, etc.

The problem seems to be not the state as such, but rather the lack of an effective state. In other words, refugee law cannot be anymore conceived and interpreted as it could be after the WWII and more or less until the end of the Communist regimes in Europe. Basically we moved from a political dimension where there was too much power of centrally-organized states to dimension where states, in many regions of the world, simply cannot control their territory.

Refugee lawyers have to face a world of anarchy, where often mafias, criminal groups, transnational terrorist organizations are more powerful than national states. In this sense decision makers cannot simply neglect this reality and dismiss refugee claims based on the assumption that refugee seekers can obtain protection by the national authorities, since these authorities exist only on paper or actively collaborate with the illegal groups they officially have to fight. For these reasons refugee seekers from many countries cannot be blamed because they did not report violations of their rights or acts of persecution to the competent authorities: this would simply be useless.

Decision-makers shall take these issues into account, as well as the conclusions of Prof. Foster that violations of social and economic rights, when sufficiently serious, can fully justify a refugee claim: for instance, violation of right to health, right to education, right to form a family, right to work, etc.

2 Comments

Recht op opvang van asielzoekers en derde (of meer) asielaanvraag: rechtspraak

11/16/2010

0 Comments

De Arbeidsrechtbank van Leuven, met vonnis d.d. 4 oktober 2010, heeft een interessante uitspraak gedaan in verband met het probleem van opvang (en het recht ervan) van asielzoekers die een derde (of meer) asielaanvraag hebben ingediend vóór de inwerkingtreding van de nieuwe tekst van de Opvangwet (wet d.d. 12 januari 2007) op 10 januari 2010.

Fedasil had opvang aan verzoeker (die in december 2009 voor de derde keer een asielaanvraag had ingediend) geweigerd op basis van de EU Richtlijn 2003/9/EG maar de Arbeidsrechtsbank heeft de conclusies van verzoeker (met als raadsman de auteur van deze blog) geaccepteerd. De Arbeidsrechtbank heeft bevolen dat:

De Richtlijn 2003/9/EG alleen minimumnormen vaststelt zodat men rekening met de nationale wetgeving moet houden, en niet met de richtlijn zelf;
De Opvangwet (oude tekst) gunstige bepalingen bevatte zodat asielzoekers in principe altijd recht op opvang hadden ook indien zij voor de derde (of meer) keer een asielaanvraag hadden ingediend;
Asielzoekers die geen opvang van Fedasil hadden ontvangen recht op schadevergoeding hebben.

Het vonnis in casu is zeker heel belangrijk omdat de Arbeidsrechtbank van Leuven duidelijk heeft vastgesteld dat het recht op opvang van asielzoekers op basis van de nationale wetgeving geweigerd kan worden, en niet op basis van de Europese richtlijnen die alleen minimumnormen en bepalingen voor de Lidstaten bevatten.

0 Comments

The laws, the society and the lawyers: and the freedoms?

11/10/2010

1 Comment

The first entry of a lawyer's blog can only concern the law: at least this is my idea and my vision. Always start from the basics to build something valuable!
The law...better, the laws, since we live in an era where all sectors of our life tend to be regulated - and this especially in the field of ICT and media law, in which the lawmakers often tend to regulate as much as possible. The lawyers' job is that of helping other people applying existing laws and regulations (at least in theory, but I do believe in this assumption) but first of all it should be necessary that lawyers understand them.
Even more radically, lawyers (and every citizen in a democratic society) should wonder why 'the law' exists: with this expression I mean the legal instruments to regulate the life of everybody, the corpus of rules that supersede many (perhaps too many) aspects of everybody's life.
Do we need laws? To what extent do we need them? The answers to first question is logically yes - a society with no rules is not likely to exist. But to what extent we need laws is less clear and an exercise of reasoning is necessary.
The starting point of a brief analysis of the issue should focus on the functions of laws in a democratic society, i.e. that of assuring social order within the maximum freedom of self-determination of every individual. Of course, not everybody will agree on that: somebody will prefer to stress out the importance of individual freedoms, while others would believe that the social order must prevail. What is sure is that both elements, individual freedom and social order (i.e. the conditions necessary to allow everybody to express their freedoms) coexist.
Having said that, many options are open in front of us: regulate as much as possible in order to have as order as possible? Regulate as little as possible in order to allow citizens and businesses to exercise their freedoms as much as possible? Personally I tend to prefer this latter solution: I do believe that human beings should be let free as much as possible, since freedom is the necessary ground to have creativity and innovation.
At the same time, the experience shows that an absolute freedom (especially in the economic and financial sector) can bring to the...end of freedom! In other words, the freedom with no limits of somebody may impede somebody else to exercise their freedoms. This is the typical dilemma of the market regulators: the absence of (competition of regulatory) rules may create monopolies and thus impede that other entities may exercise their freedom of doing business. Severe rules, at the other side, may block the growth of the best companies and thus limit innovation – of course it is possible to discuss about the limits of this statement, but I truly believe that sometimes regulations exist to prevent the situation to change.
The worst scenario, then, is when rules and regulations exist...but they are simply neglected so that they are never enforced. This seems to be the case in many countries and in many sectors.
What to do? As lawyer probably the best thing to do is to interpret the laws having in mind that they exist to limit individual freedoms and liberties when this is necessary for the society as whole. This may result difficult (and sometimes even a no-sense), but probably it is necessary in order to defend the democratic values of our society in our everyday professional life.

1 Comment

Law & Creativity Firm

Il diritto del design in Italia: informazioni utili per designers e creativi

The Brazilian Internet Bill of Rights Finally Entered into Force

The Tax Shelter for Audiovisual Productions in Belgium: a Successful Tool under Reform

La modifica della legislazione belga in tema di acquisto della cittadinanza: sviluppi e prospettive

Some considerations about the metissage of our world

Book review: Internet Banking and the Law in Europe...with final question

Book review: International Refugee Law and Socio-Economic Rights

Recht op opvang van asielzoekers en derde (of meer) asielaanvraag: rechtspraak

The laws, the society and the lawyers: and the freedoms?

Davide M. Parrilli

Archives

Categories