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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.

Inheritance law and estate planning in Greece and abroad

    Sharing your wealth to your family members or other persons is always a complex issue. Even those who inherit it, with or without a will, are not spared.

    The inheritance tax varies between 0 and 50% and depends on the degree of kinship, but also on whether it is real estate, securities, bank deposits or valuables. It also plays a role if the assets are registered in the country of residence, in the EU or in another state, but also the nationality of the heirs, etc. Special rules apply in particular to life insurance policies, joint-stock companies, etc.

Due to the particularly important tax and legal consequences, it is essential that specialized lawyers intervene scrupulously and cautiously.

    A mere transfer of ownership of a property or an ordinary joint bank account may be a solution in simple cases only. When things are getting complicated, a different stance is required. For example, in the near future, there will be, in Greece also, a wealth and assets record, like it is already in place in most countries and which will require a detailed registration of all assets. A transparent and legally compliant solution must be applied. That is why since 2017 already, the tax authorities of most countries of the world, every EU country, Switzerland, Liechtenstein, the United States and elsewhere, have introduced the automatic exchange of information (AEI) on moveable assets.

    Deposits (including investments, fund shares, etc.) in joint bank accounts in Greece are in practice exempt from inheritance tax, and in the event of the holder’s death, those assets are automatically credited to the co-owners. In theory, this does not apply to common bank accounts held abroad by Greek citizens, but in practice, no problems have arisen in this regard. It would also be contrary to European law (since the latter prevails over Greek law), which assures the free movement of capital.

    However, one must be careful, since, in some countries, e.g. Switzerland, there are no joint accounts, but only situations where third parties are operating through a simple authorization by the proxy. Therefore, in the event of the death of the account owner, his bank account is being blocked and the funds may only be transferred to the co-owners by inheritance (will or legal succession) after the establishment and the filing of an inheritance certificate or any other relevant document.

    Greek law has special provisions applicable to the taxation of inheritance of movable assets, located in Greece. However, when these assets are located abroad, things are more complicated and there is a distinction between residents and non-residents: For legal heirs residing in Greece (Greeks or foreigners), the inheritance is normally taxed. The same applies to Greek citizens residing abroad unless they have lived outside of Greece for at least 10 years without interruption. This measure is particularly burdensome for Greeks who owning assets outside of their home country.

    In a future analysis, we will deal with real estate ownership and the special regulations for insurance policies, the transfer of company shares, etc. Our law firm cooperates with specialized tax experts who have extensive experience in Greece and abroad, and we maintain privileged relations with Switzerland and the United States. Thus, our firm can properly assist you in situations where estate planning is essential.

Air Canada fined for violating language rights

    The Canadian Federal Court has ordered Air Canada to pay to two airline passengers, a total amount of $21.000 CAD, for infringing their language rights. 

English and French languages in Canada
    The opposition between those two official languages is a constant issue. Therefore, in 1969, the government adopted the Official Languages Act (hereinafter referred to as “OLA”), which gives French and English equal status and proclaims them as official languages. This law established the Commissioner of Official Languages, which receives complaints from the public, undertakes inquiries, and makes recommendations. 

The linguistic right is a constitutional right, which was additionally recognized by the Canadian Charter of Rights and Freedom (hereinafter referred to as “the Charter”).

What is the complaint about? 
    All in all, twenty-two complaints have been filed by two passengers of Air Canada, at the Commissioner of Official Languages, against the airline. The couple is claiming that the airline company is infringing systematically and recurrently their language rights, even though it is a principle protected by the OLA and the Charter.

Therefore, they request the federal court, to consider Air Canada responsible for the infringement of their linguistic rights. They require additionally a letter of apology and damages. They are also seeking to have the Court issue mandatory orders, which would require Air Canada to use : 

  • “signage for emergency exits on airplanes that complies with the language obligations set out in the [OLA]; and
  • a notice on airplane seatbelts that complies with the language obligations set out in the [OLA].”

What are the failures reproached? 

  • In some places, only the word “exit” appears.
  • When the word “sortie” (exit) is written, it is always in smaller characters than the English word, as with the word “avis” (warning).
  • The seatbelts have engraved “lift” in English, with no French-language equivalent.
  • The boarding announcement at Fredericton Airport is shorter in French than in English.

The airline argued the plaintiffs were interpreting the OLA too strictly, and that the law does not require to treat the two languages identically but in a substantially similar way. 

What is the court decision? 
    On the 27th of August 2019, the judge ruled in favor of the plaintiffs. It considered the unilingual or predominant English display, as well as the more complete boarding announcement in English, in breach of the Law.

It ordered Air Canada to pay the couple a total amount of $21.000 CAD in damages and to issue a formal apology. 
With regard to the request to issue mandatory orders, it wasn’t however accepted by the Court. The airline company had already made a commitment to comply.

It is not the first infringement of the language rights of this airline company: 105 complaints have been brought to the Office of the Commissioner of Official Languages in 2018 against Air Canada.

The use of English and French language must be equal, in regard to the Law in Canada, as well in other countries. Eurolegal has a sensitive approach to such issues and subsequent experience in multi-language countries and would be willing to be of assistance should any such problem arises. 

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/420747/index.do

Travel agency refunding the plane tickets

    On 19 March 2015, three persons booked return flights between Eelde (Netherlands) and Corfu (Greece) through Hellas Travel, a travel agency established in the Netherlands. Those flights formed part of a ‘package tour’, the price of which was paid to Hellas Travel.

The flights were to be operated by Aegean Airlines, a company established in Greece, which had entered into a contract to that effect with G.S. Charter Aviation Services, a company established in Cyprus: Aegean Airlines made available to G.S. Aviation Services a certain number of seats, in return for the payment of a charter price. G.S. Charter subsequently resold those seats to third parties, including to Hellas Travel.

However, a few days before the agreed departure date, Hellas Travel informed the three travelers that their trip had been canceled. Aegean Airlines had in fact decided, since it was no longer possible to obtain the price previously agreed with Hellas Travel, to no longer operate flights to and from Corfu. Hellas was declared insolvent on 3 August 2016 and did not reimburse the three travelers the cost of their air tickets.

The three passengers brought proceedings before the Rechtbank Noord-Nederland (District Court, Noord-Nederland, the Netherlands), which ordered Aegean Airlines to pay them compensation for the cancellation of their flight, in accordance with Regulation No 261/2004 on passenger rights.

By contrast, that court did not give a ruling on their application seeking reimbursement of the cost of the air tickets. That is the issue which the national court referred to the Court of Justice. It seeks to ascertain whether a passenger who, under the directive on package travel, has the right to hold his tour organizer liable for reimbursement of the cost of his air ticket, can also claim reimbursement of the cost of that ticket from the air carrier, on the basis of the regulation on passenger rights.

In today’s judgment, the Court points out that the mere existence of a right to reimbursement, arising under the directive on package travel, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket, pursuant to the regulation on passenger rights, from the operating air carrier.

The Court considers that while the EU legislature did not intend to exclude entirely from the scope of the regulation passengers whose flight forms part of a package tour, it did, however, seek to maintain in their regard the effects of the adequate protection scheme which had previously been put in place by the directive on package travel.

It follows that the right to reimbursement of the cost of the ticket, pursuant to the regulation and the directive, are not cumulative. If they were, the passengers concerned would receive unjustified overcompensation, which would be to the detriment of the operating air carrier, which, in that case, would risk having to assume part of the liability of the tour organizer towards its clients.

That conclusion remains unchanged also where the tour organizer is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee that reimbursement. In that context, the Court points out that the directive provides, inter alia, that tour organizers must provide sufficient evidence of security for the refund of money paid over in the event of insolvency. Moreover, the Court sets out its case-law pursuant to which national legislation properly transposes the obligations under the directive only if it achieves the result of providing passengers with an effective guarantee of the refund of all money paid over in the event of the travel organizer’s insolvency. Failing that, the traveler concerned is entitled, in any event, to bring an action for damages against the Member State concerned for the loss incurred by him as a result of an infringement of EU law.

TV broadcasting regulation in the UE

A Member State may, for reasons of public policy such as combating incitement to hatred, impose a temporary obligation to broadcast or retransmit a television channel from another Member State only in pay-to-view packages.

Baltic Media Alliance Ltd (BMA), a company registered in the UK, broadcasts the television channel NTV Mir Lithuania, a channel directed to the Lithuanian public and showing mainly Russian-language programmes. On 18 May 2016 the Lithuanian Radio and Television Commission (LRTK) adopted, in accordance with Lithuanian legislation, a measure imposing on operators broadcasting television channels to Lithuanian consumers via cable or the internet an obligation, for a period of 12 months, no longer to broadcast the television channel NTV Mir Lithuania other than in pay-to-view packages. The decision was based on the fact that a programme broadcast on 15 April 2016 on the channel in question contained information inciting hostility to and hatred of the Baltic States on grounds of nationality.

BMA brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeking the annulment of the decision of 18 May 2016, arguing in particular that the decision was taken in breach of the Audiovisual Media Services Directive,1 which requires the Member States to ensure freedom of reception and not to restrict the retransmission in their territory of television broadcasts from other Member States for reasons such as measure against incitement to hatred. That court asks the Court of Justice whether a decision such as that taken by the LRTK is covered by that directive.

In its examination of the wording, objectives, context and origin of that directive, taking account also of the relevant case-law, the Court finds that a national measure does not constitute a restriction within the meaning of Article 3(1) of the directive if, in general, it pursues a public policy objective and regulates the way in which a television channel is distributed to consumers of the receiving Member State, where those rules do not prevent the retransmission as such of thatchannel. Such a measure does not introduce a second control of the channel’s broadcasts in addition to that which the broadcasting Member State is required to carry out.

As regards the disputed measure, the Court notes that, according to the observations of the LRTK and the Lithuanian Government, the Lithuanian legislature, by adopting the Lithuanian law on information for the public, on the basis of which the decision of 18 May 2016 was taken, intended to combat the active distribution of information discrediting the Lithuanian State and threatening its status as a State in order, having regard to the particularly great influence of television on the formation of public opinion, to protect the security of the Lithuanian information space and guarantee and preserve the public interest in being correctly informed. The information referred to in that law includes material inciting the overthrow by force of the Lithuanian constitutional order, inciting attacks on the sovereignty of Lithuania, its territorial integrity and political independence, consisting in war propaganda, inciting war or hatred, ridicule or contempt, or inciting discrimination,

violence or harsh physical treatment of a group of persons or a person belonging to that group on grounds inter alia of nationality.

In its observations the LRTK stated that the decision of 18 May 2016 had been taken on the ground that a programme broadcast on the channel NTV Mir Lithuania contained false information which incited hostility and hatred based on nationality against the Baltic States concerning the collaboration of Lithuanians and Latvians in connection with the Holocaust and the allegedly nationalistic and neo-Nazi internal policies of the Baltic countries, policies which were said to be a threat to the Russian national minority living in those countries. That programme was addressed, according to the LRTK, in a targeted manner to the Russian-speaking minority in Lithuania and aimed, by the use of various propaganda techniques, to influence negatively and suggestively the opinion of that social group relating to the internal and external policies of public of Lithuania, Estonia and Latvia, to accentuate the divisions and polarisation of society, and to emphasise the tension in the Eastern European region created by Western countries and the RussianFederation’s role of victim.

On that basis, a measure such as that at issue must be regarded as pursuing, in general, a public policy objective.

Moreover, the LRTK and the Lithuanian Government stated in their written observations that the decision of 18 May 2016 governs exclusively the methods of distribution of NTV Mir Lithuania to Lithuanian consumers. At the same time, it is common ground that the decision of 18 May 2016 does not suspend or prohibit the retransmission of that channel in Lithuanian territory, since, despite that decision, it can still be distributed legally in that territory and Lithuanian consumers can still view it if they subscribe to a pay-to-view package.

Consequently, a measure such as that at issue does not restrict the retransmission as such in the territory of the receiving Member State of television programmes from another Member State of the television channel to which that measure is directed. The Court therefore concludes that such a measure is not covered by the directive.

CJEU : A monk able to be a lawyer in Greece

    On 12 June 2015, Monachos Eirinaios (Monk Irenaeus), a monk at the Holy Monastery of Petra which is in Karditsa (Greece), requested the Dikigorikos Syllogos Athinon (Athens Bar Association, Greece; ‘the DSA’) to enter him on the special register of the Athens Bar as a lawyer having acquired that professional status in another Member State, namely in Cyprus. The DSA rejected the application on the basis of the national provisions relating to the incompatibility between the practice of the profession of lawyer and the status of a monk, taking the view that those provisions also apply to lawyers wishing to practice in Greece under their home-country professional title. Monachos Eirinaios challenged that decision before the Symvoulio tis Epikrateias (Council of State, Greece).

It was in that context that the Symvoulio tis Epikrateias asked the Court of Justice whether the prohibition on a monk of the Church of Greece being registered as a lawyer with the competent authority of a Member State other than that in which he obtained his professional qualification, in order for him to practice in that Member State as a lawyer under his home-country professional title, is compatible with EU law.

In today’s judgment, the Court interprets Directive 98/5/EC, the purpose of which is to facilitate the practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained. The Court notes that the directive establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practice under the professional title obtained in the home Member State, harmonizing fully the preconditions for the exercise of the right of establishment conferred by the directive.

Thus, the Court has already held that the presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State is the only condition to which registration of the person concerned in the host Member State, enabling him to practice there under his home-country professional title, may be subject. The national legislature cannot add further conditions to the preconditions for registration with the competent authority of the host Member State. Indeed, a distinction should be drawn between, on the one hand, registration with the competent authority of the host Member State, which is subject solely to the condition of presentation of a certificate attesting to registration with the competent authority of the home Member State, and, on the other, the practice itself of the profession of lawyer in the host Member State, in respect of which the lawyer is subject to the rules of professional conduct applicable in that Member State.

The Court finds that rules of professional conduct, unlike those concerning the preconditions for registration, have not been harmonized and may, therefore, differ considerably between the home Member State and the host Member State. In that regard, the Court states that it is permissible for the national legislature to prescribe such guarantees provided that the rules laid down for that purpose do not go beyond what is necessary in order to attain the objectives pursued.

The Court points out, however, that in order for the rules of professional conduct applicable in the host Member State to be in compliance with EU law, they must, in particular, comply with the principle of proportionality, which means that they are not to go beyond what is necessary in order to attain the objectives pursued. It is for the Symvoulio tis Epikrateias to carry out the necessary checks in respect of the rule regarding incompatibility at issue.

   The Court concludes that national legislation which prohibits a monk who has the status of lawyer, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practice there under his home-country professional title is contrary to the directive.

CLAIMS ON GROUNDED BOEING 737 MAX 800 & 900

The recent Air Ethiopia tragic accident has resulted to the grounding of some 370 Boeing 737MAX practically worldwide. Amid growing concerns about the airworthiness of the specific airplane type, thousands of passengers are suffering a sudden change of plan on their scheduled travels and airlines are faced with hard rescheduling and heavy losses. Investors are also suffering great losses. In view of all this our law firm through its specialized Global Justice Network (GJN)  is already exploring means of legal compensation in several jurisdictions including but not limited to the U.S., Canada , E.U. Today on March 14,2019 we held our first teleconference with U.S. E.U. and Canada participants for that matter. One of our affiliated law firms (Keller Rohrback LLP) one of the top US Law firms  is located in Seattle where Boeing's HQ also are.  This helps our centralized approach on the matter to be more effective and efficient. We are looking forward to assist anyone who has suffered material or other losses in any jurisdiction.           

Recent decision of the Swiss Supreme Court on salaries paid in euros

 

on Tuesday,  the Federal Court in Lausanne rule in the favour of two companies in Switzerland who paid their employees in euros. Since it was prevailed for in the contract, it represents a violation of the law to claim a right for compensation after having left the company. 

 

For more informations : 

 

https://www.swissinfo.ch/eng/workers-paid-in-euros-may-not-claim-for-currency-losses/44682624

 

 

Search for assets in a swiss Bank

For those who believe they might be entitled to assets deposited at a bank in Switzerland, there are different options in order to search for an account. 

  1. Either you can contact the bank directly, if you are aware to be entitled to assets at a bank
  2. If the you don’t know in which bank you might have assets, the Swiss Banking Ombudsman prevails the possibility to conduct a search for assets
  3. If you believe that you assets are published on a publication list, there is the possibility to claim it directly on the Internet. 

For more informations, have a look at the Swiss Banking Ombudsman website :

http://www.bankingombudsman.ch/en/dormant-assets/

Automatic exchange of information (AEOI) - First exchange in Autumn 2018

Automatic exchange of information (AEOI)

 Since January 1st, 2007, Switzerland has introduced the AEOI legal foundations. The exchanges will take place under the OECD’s Common Reporting Standards (CRS), which provide for the automatic exchange information automatically. For the first time, data will be exchanged in Autumn 2018, between  37 State members and Switzerland. For swiss citizens who have assets in one of the signatory Member States, the swiss financial institutions will also receive those tax related information. From 2019 onwards, swiss financial institutions will also apply the same reporting duties with the other 41 partner states.

The delegation of Switzerland to the OECD believes that the cross- border tax evasion will be prevented with the help of the global standard, and will allow Switzerland to enhance its strong financial place.

https://www.efd.admin.ch/efd/en/home/themen/wirtschaft--waehrung--finanzplatz/finanzmarktpolitik/automatic-exchange-of-information--aeoi-.html