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

11/29/2010

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?

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Book review: International Refugee Law and Socio-Economic Rights

11/22/2010

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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.

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

11/16/2010

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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.

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

11/10/2010

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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.

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Law & Creativity Firm

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

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