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The taxation of multinationals: towards harmonization after a global agreement

I- Presentation of the new tax

A novelty in the world of taxation: on July,2021, an agreement was reached at the Organization for Economic Cooperation and Development (OECD) concerning the harmonization of a global corporate tax. This was also confirmed by the end of October 2021 at the G20 summit  After negotiations nearly 130 states have agreed to reform the taxation of multinationals based on two pillars: on the one hand a new distribution of rights to tax that would no longer tax exclusively according to the location of the headquarters of the company. On the other hand, a minimum tax rate of 15% on profits would be introduced. This would affect companies with a turnover of at least 750 million euros, this reform is mainly aimed at GAFAM companies (Google, Apple, Facebook, Amazon and Microsoft).

Even if several countries considered as tax havens have approved the agreement, some countries do not hide their reluctance. This is the case of Ireland and Hungary, which have not signed the declaration and find the minimum rate too high compared to their applied rate.

As for Switzerland, the Federal Department of Finance has announced that it will join under certain conditions and is asking for recognition of the "interests of small innovative countries".

The consequence for these countries, including Switzerland, would obviously be economic.

This tax harmonization would be applicable to all multinationals, which would be taxed in the same way from now on, but this would not have the same economic repercussions for the countries that apply it. This agreement is also denounced, notably by the NGO Oxfam, because it would only benefit rich countries.

On the other hand, this agreement is welcomed by several countries, the French Minister of Economy, Bruno Le Maire, and the German Minister of Economy, Olaf Scholz, recognize the importance of this global agreement for a better tax justice. Indeed, it allows a better distribution of profits between the countries where these large companies make them and those where they are located.

II- Consequences of the new tax

The entry into force of such a measure is expected for 2023. In practice, the introduction of a minimum tax of 15% would allow the home country of the company to collect the tax in the case where the company is taxed at less than 15% in another country. For example, a German company taxed at 9% in Hungary would be required to pay 6% to the German state.

At the European level, this reform will prevent tax evasion, which would have cost European countries 80 billion in lost tax revenue by 2020.

In this sense, this agreement has repercussions for the states that have not signed it. As a result of the standardized tax rate, countries with lower taxes could suffer a strong relocation of companies that have no more tax interest in locating precisely in these countries.

Our firm specialized in tax matters is at your disposal for

any questions or requests for assistance on this subject.

Qualified Immunity and Civil Rights Claim in the U.S.

By Erwin Chemerinsky: Dean and professor of law at the UC Berkeley Law School

Qualified immunity is a type of legal immunity. The defense of qualified immunity protects "government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." [Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)].

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. This article presents the analysis of Professor Erwin Chemerinsky, dean of the UC Berkeley School of Law, from his August 2021 webinar about the legal framework of qualified immunity as interpreted by the U.S. Supreme Court.

I. Historical and background and context

42, United States, Code section 1983 “Lawsuits against those acting under color of State law violate the constitution and laws of the United States”. This law was adopted in 1871 as part of the Civil Rights Acts but is rarely used between 1871 and 1961. In 1961 this changed when the Supreme Court decided Monroe v. Pape. There the Supreme Court said that a state or local official could be sued for violating the Constitution, whether the person was following state or local law or violating state or local law. Before that, many courts have assumed that in order to say that a state official was under color of law, they had to show they were acting pursuant to government policy. Monroe v. Pape says whether it’s an authorized or unauthorized act, if the person is a state actor, working with a state or local government, their constitutional violations give rise to a lawsuit.

In 1971, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court said that federal government officers could be sued for money damages directly under the fourth Amendment. Subsequently, the Supreme Court expanded that to actions against federal officers violating the fifth Amendment and also for violating the eighth Amendment. Lower courts extended this in other areas.

1983 is written in seemingly absolute language. It seems to be a strict liability statute. It says anyone acting under color of state law who violates the constitution of the United States is liable. There are no immunities that were mentioned in 1983 when it was adopted. There is one immunity now mentioned in 1983 for judges but that did not come until much later. Nor is there any other federal statute that creates immunity in such suits.

It’s important as we begin this discussion today to recognize that the law of immunity is entirely created by the Supreme Court. All governments officers who were sued for money damages had some kind of immunity. For some officials it’s absolute immunity. The court has said that for prosecutors performing prosecutorial tasks, legislators performing legislative tasks, judges performing judicial tasks, law enforcement testifying as witnesses, the president for presidential tasks. All have absolute immunity. They can’t be sued for money damages at all for the actions within the scope of these duties.

Apart from these officers that have absolute immunity, all other government officials when sued for money damages have qualified immunity. The Supreme Court is increasingly treated qualified immunity as a very substantial obstacle to civil suits for money damages.

II. The basic test.

I alluded to it coming from a 1982 case, Harlow v. Fitzgerald. Now the Supreme Court began formulating qualified immunity before this. Through a couple of decisions for example in the 1970s, the Supreme Court said that an officer would be liable if he either acted in an objectively unreasonable manner or if he acted subjectively in bad faith.

Harlow v. Fitzgerald, 457 U.S. 731 (1982).

This case changes that by saying qualified immunity is entirely an objective test. Officers performing discretionary functions, are liable if they violate clearly established law that a reasonable officer should know.

Bryce Harlow was a counselor to President Richard Nixon. Ernie Fitzgerald was an analyst at the Defense department who testified about costs overruns in building a transport plane. Nixon ordered Fitzgerald fired. Harlow did the firing, Fitzgerald sued saying it violated the First Amendment rights. The Supreme Court said in a companion case, Nixon v. Fitzgerald, that the president has absolute immunity. But the Court said, the high-level executive official who carried out the firing only had qualified immunity. The court articulated the test for qualified immunity. The Court said, if subjective bad faith was enough for liability, it would be too easy for suits to be brought and ultimately go to trial.

Ashcroft v. Al-Kidd, 563 U.S. 731 (2011).

“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” In this case, the Supreme Court reformulated the test of qualified immunity. This case involves a man Abdul Al-Kidd who is apprehended at Chicago O’Hare Airport as a material witness warrant. Turns out the government never intended to use it as material witness. He sued among others, the Attorney General saying that authorizing the use of material witness warrant violated his rights. The Supreme Court in anonymously ordered the case dismissed in the base of qualified immunity. The Court said that the officers performing a discretionary function were liable only if they violate clearly established law that every reasonable officer knows. The Court said that it has to be a right that is established “beyond debate”.

District of Columbia v. Wesby, 138 S.Ct. 577 (2018).

This case is one of the most recent formulations of qualified immunity by the Court. It was a Fourth Amendment case and the Court concluded there was no violation of it. You can see how the Supreme Court was taking a very robust expansive view of the scope of qualified immunity:

“Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’ ‘Clearly established’ means that, at the time of the officer's conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand that what he is doing’ is unlawfulIn other words, existing law must have placed the constitutionality of the officer's conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that ‘every reasonable official’ would know. The ‘clearly established’ standard also requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ This requires a high ‘degree of specificity.’ We have repeatedly stressed that courts must not ‘define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.’ A rule is too general if the unlawfulness of the officer's conduct ‘does not follow immediately from the conclusion that [the rule] was firmly established.”

 III. Immunity as an affirmative test.

Gomez v. Toledo, 446 U.S. 635 (1980). In that case the Supreme Court expressly held that qualified immunity is an affirmative defense. Now there’s many things that are important that flow from it being an affirmative defense. An affirmative defense has to be raised by the defense and its answer, or there has to be an effort by the defense later to file an amended answer.

This question of the burden of proof is one where there is disagreement among the lower courts. Some courts have held that the burden shifts to the plaintiff to show that the right allegedly violated was clearly established. See, e.g., Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019).

Other courts place a burden on the defendant. See, e.g., Slater v. Deasey, 789 Fed.Appx. 17 (9th Cir. 2019).

IV. The sequence of analysis.

In Saucier v. Katz 2001 case, the Supreme Court prescribed that when there’s a question of qualified immunity, first the court taking the facts should decide if there’s a constitutional violation. And second, if so, they should decide whether it’s a violation of clearly established law that every reasonable officer should know. There’s a virtue to this approach. Even if the Court in that case, on the latter finds qualified immunity, at least it would decide if there’s a constitutional violation, to guide future cases.

Eight years after Saucier v. Katz, in Pearson v. Callahan, 129 S.Ct. 808 (2009). The Supreme Court unanimously said that the two-step approach is not required. When a court is considering qualified immunity, it does not have to first determine if there is a constitutional violation before deciding whether there is clearly established law that the reasonable officer should know. So if a court wants to find qualified immunity without analyzing if there is a constitutional violation, it’s able to do so.

But there is a cost to doing this: if the courts don’t decide whether there is a constitutional violation, always decide based on qualified immunity, there is no constitutional violation for the future.

The case Sims v. City of Madisonville, 894 F.3d 692 (5th Cir. 2018). This is the fourth time in three years that an appeal has presented the question whether someone who is not a final decisionmaker can be liable for First Amendment retaliation. Addressing the first-step liability question is ‘especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.’ That is the case here. First Amendment retaliation claims do not arise in criminal litigation (as, for example, a Fourth Amendment claim often would), and this issue of individual liability would not arise in other civil suits, such as those against a municipality, in which qualified immunity does not apply. Because this is a question unique to section 1983 First Amendment claims brought against individual defendants, we conclude that clarifying the liability question is important to provide guidance to public employees who may find themselves on either side of the ‘v’ in these lawsuits that can raise important issues of whether employees who challenge corrupt governmental practices are protected in exercising First Amendment rights.” was very instructive. It pointed out how in several occasions an issue would come before the court in everyone they dismiss based on the latter question. But first we need to decide whether there is a constitutional violation, give guidance for the future.

V.  Application of the Harlow test.

 A. What law?

In Wilson v. Layne, 526 U.S. 603 (1999), the Supreme Court answers this question. This case involves the FBI and other federal law enforcement officials, taking reporters with them on private property while the government officials were executing search warrants. And the Supreme Court said that this violated the Fourth Amendment but then found that the federal officers were protected by qualified immunity. Indicates that clearly established law can be based on decisions of Supreme Court, controlling authority from that jurisdiction: Court of Appeals/highest court of state, law of other jurisdictions: consensus of persuasive authority.

District of Columbia v. Wesby, 138 S.Ct. 577 (2018). “We have not yet decided what precedents--other than our own-- qualify as controlling authority for purposes of qualified immunity.” There are dozens of instances where the Supreme Court has said that. This had led defendants to try to argue that only a Supreme Court decision can create clearly established law and overcome qualified immunity. So far, the circuits have consistently rejected that.

Irish v. Fowler, 979 F.3d 65 (1st Cir. 2020). In that case the first circuit says that precedents from other circuits can create clearly established law. It’s not just the decisions of the Supreme Court.

Cahoo v. SAS Analytics, 912 F.3d 887 (6th Cir. 2019). “To determine whether a constitutional right is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this [C]ourt and other courts within our circuit, and finally to decisions of other circuits.”. That reflects an accurate statement of the law.

B. Does there have to be a case on point?

No: Hope v. Pelzer, 536 U.S. 730 (2002). Police guards are not protected by qualified immunity even if there is no case on point. In this case the police guards tied a prisoner in Alabama to a hitching post, left him in hot sun for many hours and without giving water. The prisoner got injured and sued the guards for a violation of the 8th Amendment. The Court of Appeals for the 11th Circuit said that it was cruel and unusual punishment but no case on point was identified so the guards got protected by the qualified immunity.

The Supreme Court held that a case on point is not necessary in order to overcome qualified immunity. Officers should have been on notice that this conduct was unconstitutional, even there though there are not cases on point finding it to be unconstitutional.

Taylor v. Riojas, 141 S.Ct. 52 (2020). The Supreme Court employed the same argumentation in this case for correctional officer despite the lack of case on point. In this case a prisoner in Texas sued the officers based on a violation of the 8th Amendment for unsanitary living conditions in a cell. The Court of Appeals for the 5th Circuit said that it was cruel and unusual punishment but no case on point was identified so the officers got protected by the qualified immunity. The Supreme Court overturned this decision reaffirming that a case on point is not necessary. As a matter of fact, any reasonable correctional officer should have realized that Trent Taylor’s conditions of confinement offended the Eighth Amendment, the U.S. Court of Appeals for the 5th Circuit erred in granting the officers qualified immunity.

Yes: City of Escondido, California, 139 S.Ct. 500 (2019). “[W]e have stressed the need to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.... While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular [action] beyond debate.... Of course, there can be the rare obvious case, where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances.... But a body of relevant case law is usually necessary to clearly establish the answer....” (quoting District of Columbia v. Wesby) Brosseau v. Haugen, 125 S.Ct. 496 (2004). Shooting a fleeing suspect who’s flight may harm others is not a clearly established use of excessive force. The Court held that because this case was on the “hazy border between excessive and acceptable force”

Brosseau did not violate the clearly established rightof freedom from excessive force.

Safford Unified School Dist. v. Redding, 129 S.Ct. 2633 (2009). School officials violated the Fourth Amendment in strip searching a seventh-grade girl on suspicion that she has prescription strength ibuprofen. However, school officials were protected by qualified immunity because there was not clearly established law at the time this occurred.

Ashcroft v. Al-Kidd, 131 S.Ct. 2074 (2011). The Attorney General is protected by qualified immunity when sued for money damages for improperly detaining an individual under the material witness statute.

Wood v. Moss, 134 S.Ct. 2056 (2014). Secret service agents were protected by qualified immunity when they moved anti-Bush demonstrators further and allowed pro-Bush demonstrators to be closer to the President.

Lane v. Franks, 134 S.Ct. 2369 (2014). A government employee’s First Amendment rights are violated when he is fired for truthful testimony given pursuant to a subpoena, but the defendant is protected by qualified immunity.

C.   The need for the right to be established a specific level of abstraction

Kisela v. Hughes, 138 S.Ct. 1148 (2018). Police officer Andrew Kisela is entitled to qualified immunity because his actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

City & Cnty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015). “The real question is whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability. Rather, we simply decide whether the officers’ failure to accommodate Sheehan’s illness violated clearly established law. It did not. To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor, but Graham holds only that the ‘objective reasonableness’ test applies to excessive-force claims under the Fourth Amendment. . . That is far too general a proposition to control this case. ‘We have repeatedly told courts -and the Ninth Circuit in particular- not to define clearly established law at a high level of generality.’ Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” “[E]ven if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ it does not do so here.”)

White v. Pauly, 137 S.Ct. 548 (2017). “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ As this Court explained decades ago, the clearly established law must be “particularized” to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’”

Therefore, the more the Court wants law to be established in a very specific level of abstraction, the more qualified immunity functionally becomes absolute immunity.

 D.   Excessive force

Saucier v. Katz, 533 U.S. 194 (2001). In a civil rights case alleging constitutionally excessive force, the tests for qualified immunity and reasonableness are distinct; a finding of excessive force does not preclude a finding of qualified immunity.

Therefore, the Supreme Court reversed the Court of Appeals for the 9th Circuit and held that qualified immunity analysis must proceed in two steps. A court must first ask whether "the facts alleged show the officer’s conduct violated a constitutional right. Then, if a constitutional right was violated, the court would go on to determine whether the constitutional right was “clearly established”.

 VI.   Private actors

Wyatt v. Cole, 504 U.S. 158, 165 (1992). Private actors do not get qualified immunity defense.

Richardson v. McKnight, 521 U.S. 399 (1997). Private prison guards who are sued under Section §1983 may not assert the defense of qualified immunity.

They cannot be protected by the qualified immunity because it only covers the exercise of discretion by government officials.

Filarsky v. Delia, 132 S.Ct. 1657 (2012). A private contractor operating under a contract with the government may claim qualified immunity when sued under §1983.

Estate of Jensen by Jensen v. Clyde, 2021 WL 787451 (10th Cir. March 2, 2021). Private doctor who was employed by county on part-time basis, in providing medical services to inmates at county jail where he worked alongside the jail's officers and full-time staff, had ability to raise qualified immunity defense.

VII.  Changing qualified immunity?

Qualified immunity became a popular vocabulary especially because of the police cases. The question of abolishing qualified immunity has been raised and this would imply strict liability for officials. This discontinuance would increase the compensation for casualties. It would also enhance deterrence. However, this solution shows some skepticism and does not seem politically possible.

The main issue would indeed be a change that would mitigate the absolute nature of qualified immunity. It is important to remind that this qualified immunity does not come from the Constitution but from the Supreme Court interpretation of Section 1983. Therefore, the Congress could revise the immunity statute and change it by law enforcement.

In cases involving access to force by police officers, their liability could be imposed based on proofs of subjective bad faith or objective manners and thus to ensure that immunity does not apply to officials in some cases.

To conclude the case Marbury v. Madison reminds us that rights are meaningless without remedies. Fortunately, the Court has some remedies to counter the qualified immunity of officials through money damages to the victims.

Published with permission granted to us by author Prof. Erwin Chemerinsky Dean and Professor of Law at UC Berkeley Law school 

Framework Agreement: Switzerland and the EU break off negotiations

Swiss President Guy Parmelin announced on 26 May 2021 the end of negotiations with the European Union. This followed a summit in Brussels on 23 May 2021, where Parmelin and the President of the European Commission, Ms Von der Leyen, met. None of the discussions were able to bring satisfactory results to the points of disagreement.

At present, there are five bilateral agreements between Switzerland and the European Union, notably concerning the free movement of persons, land and air transport, and agriculture.

The framework agreement between Switzerland and the European Union, which has been discussed since 2002, is the solution for keeping the bilateral path up to date and harmoniously applied. Discussions had been underway since 2014 on a potential institutional agreement bringing the Swiss and European legal frameworks closer together. This would have made it possible to homogenise the regulations concerning Switzerland's participation in the European single market, but also concerning questions of salaries or the free movement of persons.

This text also provided for a dispute settlement procedure in the event of disagreement between Switzerland and the EU. Today, if a problem arises between the two parties, no external entity can intervene to move the negotiations forward.

Switzerland has been cautious because such a framework agreement with the EU would undoubtedly have led to legal changes through the adoption of EU law. However, it was mainly due to profound disagreements that it was not able to sign the agreement, as the EU and Switzerland do not have the same interpretation of the free movement of persons, which is more liberal for the EU. With this text, Switzerland should have transposed the directive on citizenship of the European Union. If so, Europeans settling in Switzerland would have had easier access to the Swiss social system than they do today.

In these negotiations, Switzerland also wanted to protect its wages through the accompanying measures. Today, if a European company wants to send a posted worker to Switzerland, it has to notify the administration eight days in advance. With the framework agreement, this period would be reduced to four days. Switzerland considers that this period is too short to allow time for labour inspectors to check that there is no wage dumping. This change could have led to a weakening of the level of protection for workers in Switzerland.

One of the repercussions of the end of these negotiations concerns the medical technology industry. Having lost its free access to the EU internal market and as a result of the new EU regulation on medical devices, this branch of Swiss industry is now a third country.

This means that stricter requirements for the export of medical devices by Swiss companies will be introduced. As a third country, the administrative burden on companies is greater and they have to incur additional costs or appoint representatives in each member state. The lack of access to the European market makes exporting more costly and procedural.

Other sectors would be affected, such as agriculture, food safety and electricity trading.

The abandonment of this draft agreement risks damaging relations between Switzerland and the EU, as the EU had made any other bilateral market access agreement conditional on the signing of this framework agreement. The latter was intended to govern aspects of the single market in Switzerland, which from a trade perspective is necessary. As the European Union is Switzerland's main economic partner, import and export relations with Switzerland, if not facilitated, risk being weakened in the long term.

The entire team of European Legal Consultancy is at your disposal for any questions or requests for assistance on this subject.

 

Get Ready for Brexit A GJN PUBLIC DEBATE on 24 June 2021 - 5pm

Global Justice Network (GJN) is organizing a debate on the practical implications of Brexit and the current state of the law on June 24, 2021. This debate will be presented by: Professor Duncan Fairgrieve, Senior Fellow in Comparative Law, British Institute of International and Comparative Law, and Professor of Comparative Law, Université Paris Dauphine PSL as well as Professor Gilles Cuniberti from the Faculty of Law, Economics and Finance of the University of Luxembourg.

The moderator of this debate will be Carlos Villacorta of BCV Lex (Madrid, Bordeaux), member of the GJIN committee.

Two positions will be defended during this debate: a pro-Brexit side on one side and a counter-Brexit side on the other.

The withdrawal of the United Kingdom from the European Union has economic, commercial, and of course legal consequences. Indeed, long negotiations between the United Kingdom and the European Union were necessary to reach a withdrawal agreement, to get out of all European regulations but also to find new agreements with this recent third country to the European Union

A member state of the European Union can withdraw from the Union under Article 50 of the Treaty on European Union (TEU). The United Kingdom is the first country to activate this article, through a notification to the European Council on March 29, 2017. The date of the Brexit was postponed due to the difficulty of the negotiations, until the Brexit was finally realized on January 31, 2020, leading then to a transition period for the next eleven months: until January 1, 2021.

The negotiations and new agreements between the United Kingdom and the European Union (and its member states) are mostly resolved, yet changes are to come as the Brexit inevitably impacts the legal sector.

 This is an open invitation to participate on this debate

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THE APPLICABLE LAW TO MATRIMONIAL PROPERTY REGIMES UNDER REGULATION (EU) 2016/1103

ELC was interested in the European Regulation 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law, recognition, and enforcement of judgments in matrimonial matters. This study allowed us to be prepared to answer your questions on the subject to provide you with a quality service.

This regulation, adopted on June 24, 2016, is the result of many years of discussions. It applies to the area of matrimonial property regimes of couples with foreign elements and this, following the mechanism of enhanced cooperation. As a result, the applicability of the Regulation will be limited to those Member States which have expressly so wished.

The Regulation establishes harmonized connecting factors for determining the applicable law to the matrimonial property regime and the competent court. The Regulation also simplifies the recognition and enforcement of judgments and the acceptance and enforcement of authentic instruments relating to matrimonial property regimes.

In this article, we will deal only with the part of the Regulation concerning the applicable law to the matrimonial property regime.

1.       The scope of application

The Regulation applies to matrimonial property regimes with a foreign element.

The spouses concerned

For spouses of the same nationality:

     With habitual residences in different States at the time of the celebration of the marriage or the drafting of the agreement organizing or modifying their regime, or

 

    With the property of either spouse in a State different from that of nationality or residence, or

    Having celebrated their marriage in a State different from that of their nationality or residence.

Spouses of different nationalities, regardless of their place of habitual residence, the situation of their property, or the celebration of the marriage.

Enhanced cooperation (art. 70)

The Regulation is only applicable in the Member States participating in enhanced cooperation. The non-participating Member States are to be considered as third States in the application of the Regulation.

Exclusions (provided for in Article 1)

Excluded from the scope of application are fiscal, customs, or administrative matters, the legal capacity of spouses, the existence, validity, or recognition of a marriage, maintenance obligations, succession, jurisdiction, and applicable law in matters of divorce, legal separation, or marriage annulment, social security, the right to transfer or adapt between spouses, the nature of rights in rem, etc.

Application in time (art. 69, 70)

The regulation entered into force on July 28, 2016.

2.       Applicable law in the absence of a choice by the spouses (art. 26)

If no law is designated, a hierarchy of connecting factors is used to determine the applicable law:

  1. The first common habitual residence of the spouses after the celebration of the marriage.
  2. Failing that, the common nationality at the time of the marriage. This criterion cannot be used when the spouses have several common nationalities.
  3. Failing that, the law of the State with which the spouses have the closest connection at the time of the celebration of the marriage.

Exceptionally, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the celebration of the marriage shall apply, provided that the following circumstances are met:

      That one of the spouses so requests;

      That the spouses had their last common habitual residence in that other State for a period significantly longer than their first common habitual residence;

      That both spouses have relied on the law of that other State to organize or plan their property relations;

      That the spouses did not conclude an agreement before the date of their last common habitual residence in that other State.

3.       Choice of law

The Regulation offers the possibility of choosing the law of one of the States of which at least one of the spouses has the nationality or the law of his or her habitual residence at the time of the choice (art. 22). This choice of law applicable to the matrimonial regime may be express or implicit.

For the choice to be valid, it must meet certain conditions, in particular

      Formal conditions: the choice agreement must be in writing, dated, and signed by both spouses. Certain conditions are added for particular cases (art. 23), for example in case of residence in different Member States.

      Material conditions: the existence and validity of the substance of the agreement are subject to the law chosen by the spouses as applicable to the matrimonial property regime (art. 24)

4.       Characteristics of the applicable law

The Regulation distinguishes various principles concerning the applicable law to the matrimonial property regimes of couples with foreign elements.

First of all, the principle of universality of the applicable law according to Art. 20 provides that the designated law applies even if that law is not that of a Member State.

Second, there is the principle of unity of applicable law. This principle provides that the law will be applied to all of the couple's assets, regardless of their location (art. 21) or their nature.

There is also the principle of immutability of the applicable law. It is defined by the fact that the matrimonial regime is fixed by the applicable law from the initial moment of the celebration of the marriage and is not modified thereafter.

Finally, as provided for in art. 27 of the present regulation, the applicable law to the matrimonial property regime governs different areas: this is the scope of the applicable law.

One should not forget the exceptions to the applicable law, such as public policy (art. 31) and mandatory law (art. 30).

THE ECONOMIC RECOVERY PLAN TO BUILD A POST-COVID-19 EUROPE

"We have reached an agreement on the recovery plan and the European budget [...] This agreement sends a concrete signal that the EU is a driving force. "These were the words of Charles Michel, President of the European Council, following the summit of July 17-21st of 2020, during which the leaders of the European Union negotiated the amount of the budget for the period 2021-2027.

 This budget represents a total of €1.8 trillion to help member states address the economic consequences caused by the pandemic through a greener, more digital and more resilient Europe. To support this, NextGenerationEU, as a temporary instrument, was created to stimulate recovery to address the unprecedented nature of the situation.

Foremost, NextGenerationEU introduces a new funding model for the EU. Its long-term budget will retain the standard structure of customs duties on imports from third countries, on levy on part of the VAT, and contributions based on gross national income.

The novelty lies in the origin of the loans allocated to member states. They will be made possible by "borrowing resources", which means that the European Union will borrow on the capital market.  Secondly, the recovery plan intends to set up new resources focused on ecological priorities. For example, a levy on non-recycled plastics or a tax on the activities of large companies are examples of contributions that could be used to pay for the recovery plan.

Member States had never before agreed to take on such a large amount of debt in the name of common solidarity[1].  Despite this, this commitment speaks volumes about the willingness of the states to preserve the European project. 750 billion annual budgets for 2021 was adopted by the European Parliament and the Council on March 17th, 2021.

So far, 16 member states have ratified the fund for the current year. However, on March 26th, 2021, the ratification process was suspended in Germany. The German Constitutional Court issued an interim injunction suspending the ratification process. The reason is that Germany has always been reluctant to share the burden of debt with other states.

In fact, this interruption risks to further slow down the implementation of these 750 billion funds, at a time when the pandemic is still affecting Europe and with severe impacts on entire sectors of the economy.


[1] Article 122 of the TFEU

CROSS BORDER TAX PLANNING: GREEK TAX INCENTIVES

 In recent years, Greece has been dynamically trying to become an attraction for foreigners, competing with other European countries such as Malta, Cyprus, and Portugal, which are organized in similar incentive practices.

The "Golden Visa" plan in combination with the residence permit in Greece (and consequently with free movement throughout the Schengen area) that accompanied it, had paid off, especially during 2019. Foreigners Investors who wanted to acquire it could do so either by investing in real estate in our country, but also in bond shares and mutual funds. However, the coronavirus pandemic seems to have slowed its rise and the relative numbers have dropped significantly.

As a result, new tax incentives were designed targeting both the repatriation of young Greek immigrants (many of them being highly specialized or dispose of qualified scientific training) in order to achieve a reversal of the "brain drain" of the last decade but also aiming at Greece to attract citizens from third countries ready to settle and work or even invest in Greece.

For individuals who decide to relocate in Greece as self-employed or as employees, to another professional employment, a reduction of 50% of their income tax is introduced in Greece for the next 7 years after their establishment, under certain conditions.

At the same time, pensioners (foreigners or of Greek origin) are encouraged to choose to settle in Greece, where their tax obligations are limited to an annual income tax of only 7% of the income from their pensions they earn abroad as long as they now live in our country.

This creates a multifaceted framework of tax incentives which can be of particular interest with proper planning both for the repatriation of Greeks and for the settlement of other active or retired individuals.

Our Law firm through its network in Switzerland is quite familiar with the double taxation avoidance conventions and with the EU directives/regulations as well as the OECD recommendations to the extent that they are included in the national tax regulations. We follow with particular interest the developments in the Greek tax legislation in relation to abroad in order to be informed and able to provide quality services in the cross-border tax planning of our clients.

The class actions efficiency against the Depakine's liabilities in Switzerland

The Depakine (also known as Depakote) is a medicine used in case of epilepsy or as a preventive treatment from child fever convulsions. But, if the Depakine is used during pregnancy, it could cause defects and brain troubles to a born child.

On November, 12th 2020, a family who decided to intent an action against Sanofi (the French pharmaceutical company), appeared for the first time before the Geneve Court. This family claimed that the French company is liable for the lack of information regarding the medicine. In this particular case, Sanofi recognizes its liability but claim as a defense that the action is time-barred. Nevertheless, this case follows many more cases as it is established that around forty Swiss children have been victims of this lack of information from the medical system.

This case remains the first one in Switzerland but it appears that another justice State had to rule a similar case. As a matter of fact, on July, 2nd 2020 the French Administrative Court of Montreuil ruled that the French State Sanofi and the doctors who gave Depakine as prescription to pregnant women, were liable for the children defects. The French State was condemned to compensate the three families that intent the action.

It is thanks to a class action that the French Court of Montreuil recognized that the State « was responsible of not fulfilling its obligation to control and not taking the necessary means to do so. »

The French State had to pay each family 200 000 euros, 157 000 euros and 20 000 euros, according to the birth year of the five children that were concerned and are now between 11 and 35 years old.

Yet, this medical issue is still keeping busy the French justice. In fact, on November, 9th 2020, the National Medicine and Health Product Security Association (ANSM) was indicted for « injuries and unintended manslaughter. » These charges are the result of an investigation that started in 2016 and was handled by the Judicial Court of Paris on behalf of the Association for the welfare of the children’s parents suffering from the Depakine syndrome (APESAC). An ongoing class action will be heard on March 2021 in order to compensate more than fifty gathered families that are victims to this issue.

It would be no surprise that the Swiss justice as well as the French justice will ruling in favor of the victims. In fact, it seems that the judicial power is willing to condemn a significant number of medical professionals that failed to inform properly the victims about this medicine. This tendency to rule in favor of the families appears since the European Commission finale decision from June, 7th 2018 that forbids the prescription of valproate (which is a component of Depakine) to all women who are able to become pregnant or, moreover, who are pregnant. Thanks to this class action, many families can gather and sue a person or a company in order to obtain a financial compensation. The reunion of these harmed families ensures to be heard in a Court and therefore, maximize their chances to have justice.

 The class action is a legal mean that is as specific as efficient. If you consider yourself as a victim of this medical issue or would like to join a class action before the Swiss Courts, our firm would be pleased to be of assistance in  your case or answer any questions you might have in connection to your possible entitlements.  

 

Is Brexit an opportunity for Greece within the EU?

            Since January 31, 2020, the United Kingdom (UK) is no longer part of the European Union (EU). Nevertheless, until the end of December, the British as well as the European Union’s States remains subjected to the European Union law. Since the official withdrawal of the UK in January, the EU had strong hopes that the transition period would lead to the conclusion of a free-trade agreement. But, Boris Johnson, the British Prime Minister, maintained his strong position of a « no deal Brexit » that implies no agreement between the two parties. The global pandemic acted like a real freezing of the negotiations. Every EU States thought it would have helped to conclude even a small agreement. In fact, the British Parliament decided, in July 2020, to extend the application of the EU law until July 2021 for customs matters. Nevertheless, this forward step was only a small exception. Indeed, since the beginning of the negotiations until today, the two parties did not find an agreement to conclude together. Furthermore, we are ready to face a « no deal Brexit » at the end of the year.

            But what consequences for Greece ?

            Greece is indeed part of the European Union, nevertheless, thanks to strong and ancient economic relations, the United Kingdom and greek citizens always had the privilege to obtain specialized laws adapted to each country. Brexit does not seem to change this long term relationship. In fact, before the official withdrawal of United Kingdom from the EU, the Greek government passed the 4652/2020 law that aims the relations between the two countries during the transition period. The purpose of this law (PDF version in Greek : https://www.hellenicparliament.gr/UserFiles/c8827c35-4399-4fbb-8ea6-aebdc768f4f7/11167727.pdf) is to protect British residents’ status and rights in Greece, as the upcoming residents. The purpose of this law was to evict the uncertainties concerning what is, will be or won’t be enforced until the official withdrawal of the United Kingdom in December, 31 2020. This law concerns, among others, the social rights (employment, insurance…) of British residents that won’t be anymore subjected to EU law in a « no deal » scenario.

            However, this law is enforced only during the transition period. Thus, from December, 31 2020, the United Kingdom becomes a third State to the European Union and, in extension, to Greece. The British companies as well as the greek ones are getting ready for an important customs change due to a non-agreement of free-trade. The freedom of movement between the United Kingdom and Greece will be substituted to customs procedures.

            Nevertheless, the non-conclusion of a free-trade agreement is not an obstacle to the  common business exchanges between the two States. In fact, some British companies found a new strategy by acquiring the Greek or Cypriot nationality. As a consequence, these companies are insured to benefit the EU law and more specifically, the free-trade principle. This solution, available for major companies, is also extended to nationalities from Portugal, Austria or even Malta. Herewith, compared to the official negotiators of Brexit, it seems that the practice and its actors succeed to adapt themselves to the future 2021 post-Brexit.

Stay at home orders for public health(Covid 19) are protected by the U.S. Constitution

By Erwin Chemerinsky: Dean and professor of law at the UC Berkeley Law School

The law is clear: the government has broad power in a public health emergency to take the steps needed to stop the spread of a communicable disease. In 1905, the Supreme Court declared: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”Some conservative voices are now questioning the legality of stay-at-home orders. One conservative commentator called stay-at-home orders “totalitarian” and cast doubt on their constitutionality. These claims have no basis in law.

There is absolutely no right to put the health of others in danger and to act in a way that risks the collapse of our health care system. The government can, if it chooses, impose criminal penalties on those who willfully disobey orders designed to limit the spread of the coronavirus.

This is not a new principle. A few years after the end of the Revolutionary War, Philadelphia was isolated to control the spread of yellow fever. By the time the Constitution was drafted and approved, quarantine was already a well-established form of public health regulation. States, as part of their police power, were deemed to have the authority to order quarantines to prevent the spread of communicable diseases. In 1926, the Supreme Court wrote: “it is well settled that a state, in the exercise of its police power, may establish quarantines against human beings, or animals, or plants.”

In Jacobson v. Massachusetts, in 1905, the court upheld laws requiring compulsory vaccination against smallpox. A challenge was brought to this law on the ground that it interfered with the liberty of people to choose to not be vaccinated and to decide how to protect their own health. The court emphatically rejected this argument and stated: “But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

Every challenge to a compulsory vaccination law, even without exceptions for religious beliefs, has been rejected with courts always upholding the government’s power to protect public health. A person’s liberty does not include the right to injure or endanger others. It long has been recognized that my ability to swing my fist stops at another person’s nose.

Thus, there is no doubt that a state has the authority to impose the restrictions necessary to limit the spread of a communicable disease. State laws give governors and city officials broad authority to deal with public health emergencies.

If the government can quarantine individuals and prevent them from leaving their homes, then it also has the power to do something less restrictive, such as shelter in place requirements. Likewise, the law is clear that the government can close businesses when necessary for the sake of public health. The orders for restaurants, bars and non-essential businesses are thus unquestionably constitutional. I hope that arrests and criminal prosecutions are not needed to enforce these restrictions, but the government has that power if needed.

These enormous powers do restrict freedoms and therefore are not to be lightly undertaken. Courts would step in if the government used this authority when it was not needed or in an unreasonable manner. But under the current circumstances with the spread of coronavirus COVID-19, courts certainly would back up the government’s authority to protect society from “an epidemic of disease which threatens the safety of its members.”

I am discouraged to hear conservatives questioning the government’s authority to take the measures necessary to protect public health. They are not only wrong as a matter of law, but those who advocate disobeying restrictions may be contributing to the spread of disease, deaths and the overburdening of the health care system. I would hope in our deeply politically polarized times that all of us, regardless of ideology, can come together for protecting the health of all of us and deal with the pandemic.

Also appeared at Fresnobee.com. Published with permission granted to us by author Prof. Erwin Chemerinsky Dean and Professor of Law at U.C. Berkeley Law school  in California.