Kelo, Lingle and Eminent Domain: Sovereignty and Government

Please note that SCOTUSblog – Supreme Court of the US Blog – has just moved to its own domain at http://www.scotusblog.com/movabletype/.

The Supreme Court recently held oral arguments on two important eminent domain cases involving the taking of private property for public use: Kelo v. New London and Lingle v. Chevron, for which oral arguments were held on February 22.

Summaries of the two cases are found at Scotus Blog (Lingle) and Cornell Law School (Kelo).

As noted at FindLaw, the Kelo case involves the question:

“What protection does the Fifth Amendment’s public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of “economic development” that will perhaps increase tax revenues and improve the local economy? “

and the Lingle case involves the questions:

1. Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of any property.

2. Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals. “

KipEsquire at A Stitch in Haste commented on these cases and struck a low blow at the Volokh Conspiracy in connection with this issue, while there was also an irrational “free property” statement at Bainbridge, [“If the Supreme Court sides with New London, we might just as well roll up the Bill of Rights, for we won’t need it any longer.”]. We felt compelled to Google the issue, which landed us at Crooked Timber and its many excellent comments that cover some of the hard issues involved in eminent domain.

SCOTUSblog and Slate report from the oral arguments that the Supreme Court will surely follow the traditional line in deciding these two eminent domain cases.

But of course, that seems quite clear from here. While still a student at Stanford Law School, the Law Pundit worked for the California Law Revision Commission on a revision of the California eminent domain statutes.

It was as clear then as it is clear now that private property rights are not absolute rights, not even in capitalist America. When push comes to shove, individual property rights can be circumscribed for the greater good of the community, whether this be for the building of a new road or by relocation of individuals because of community development or improvement, even if this benefits private interests. What government action does not benefit some private interest somewhere? After all, no one challenges the principle of community zoning rights. Individual property rights are simply not absolute. Indeed, the right to hold property is granted by the state and it can even be taken away by the state, under certain circumstances.

Eminent domain is an element of the sovereignty of governments. Government sovereignty is the entire basis for the power of eminent domain as anchored in the Fifth Amendment to the US Constitution.

Although no one denies that there are abuses of the power of eminent domain, an abuse of such a power does not make the exercise of eminent domain unconstitutional just because it involves the taking of private homes for private projects which communities find to be beneficial to the community. Governments have this power.

All the discussion that this kind of a taking is not the kind of “public” taking envisioned by the Constitution are just wagging their chins for nothing. It would be impossible for the highest court in the land to carve out any kind of an exception to the rule of eminent domain which would not result in absolute chaos in federal and state government in the long term. Is it an absolute “private” property right to be able to maintain a shanty in the middle of New York City among a skyline of skyscrapers, costing society perhaps millions of dollars to build around it? The answer is no.

By definition, a “legitimate” taking is a “public” taking and what a “public purpose” is, is decided by the government. This is a crucial element of government sovereignty. At least, that is the way we see it.
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The Law on ROYAL MARRIAGE in the UK

The Lords Hansard full text database menu for House of Lords debates has the “written statement” found below from the House of Lords debate of
24 Feb 2005 (250224-51)

(As written at LLRX, “The debates of Parliament are published in Hansard. There are separate series for the House of Commons and the House of Lords and for Standing Committee debates. Hansard is also available on the web on the Parliament website, and there are archives of the Commons Hansard back to 1988/89. The House of Lords Hansard database is from 1996.”)

Here is the Written Statement on ROYAL MARRIAGE which is a current topic of general interest about the UK:

24 Feb 2005 : Column WS87

“Royal Marriage

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): In the light of recent interest in the law surrounding Royal marriages, I am making this Statement to set out in more detail the view that has been taken by the Government on the lawfulness of the proposed marriage between the Prince of Wales and Mrs Parker Bowles.

The Government are satisfied that it is lawful for the Prince of Wales and Mrs Parker Bowles, like anyone else, to marry by a civil ceremony in accordance with Part III of the Marriage Act 1949.

Civil marriages were introduced in England, by the Marriage Act 1836. Section 45 said that the Act . . . shall not extend to the marriage of any of the Royal Family’.

But the provisions on civil marriage in the 1836 Act were repealed by the Marriage Act 1949. All remaining parts of the 1836 Act, including Section 45, were repealed by the Registration Service Act 1953. No part of the 1836 Act therefore remains on the statute book.

The Marriage Act 1949 re-enacted and re-stated the law on marriage in England and Wales. The Act covered both marriage by Church of England rite, and civil marriage. It did not repeat the language of Section 45 of the 1836 Act. Instead, Section 79(5) of the 1949 Act says that ‘Nothing in this Act shall affect any law or custom relating to the marriage of members of the Royal Family’.

The change of wording is important, and the significance is not undermined by the fact that the 1949 Act is described as a consolidation Act. The interpretation of any Act of Parliament, even when it consolidates previous legislation, must be based on the words used in the Act itself, not different words used in the previous legislation.

In our view, Section 79(5) of the 1949 Act preserves ancient procedures applying to Royal marriages; for example, the availability of customary forms of marriage and registration. It also preserves the effect of the Royal Marriages Act 1772, which requires the Sovereign’s consent for certain marriages. But it does not have the effect of excluding Royal marriages from the scope of Part III, which provides for civil ceremonies. As the heading to Section 79 indicates (“Repeals and Savings”) it is a saving, not an exclusion.

We are aware that different views have been taken in the past; but we consider that these were overcautious, and we are clear that the interpretation

24 Feb 2005 : Column WS88

I have set out in this Statement is correct. We also note that the Human Rights Act has since 2000 required legislation to be interpreted wherever possible in a way that is compatible with the right to marry (Article 12) and with the right to enjoy that right without discrimination (Article 14). This, in our view, puts the modern meaning of the 1949 Act beyond doubt.”

Interesting is the reference to the Human Rights Act, which can be summarized as follows:

“The British government [brought] the Human Rights Act into legislation on 2nd October 2000. The HRA incorporates the European Convention of Human Rights into British domestic law. The ECHR is a treaty of the Council of Europe, which was adopted in 1950 and ratified by the British government in 1951. The ECHR was designed to give binding effect to the guarantee of various rights and freedoms in the [United Nations] Declaration on Human Rights adopted in 1948. The Convention rights are a broad interpretation rather than a strict legalistic one to ensure that they are practical and can be effective within a changing society. The incorporation of the ECHR [into] the Human Rights Act means that individuals will be able to seek redress for human rights abuses through the British court system before having to take a case to Strasbourg. The Human Rights Act is drafted in such a way that all primary and subordinate legislation must be compatible with the European Convention Rights. “

See also the BBC on the Human Rights Act.

Please note that the ECHR is not a Convention of the European Union, but rather of the Council of Europe (CoE), which is NOT a body of the EU, but consists of 46 European states, representing 800 million Europeans.

Crossposted to EU Pundit.
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Freedom of the Press, Journalists and Bloggers

The United States Court of Appeals for the District of Columbia Circuit has issued its February 15, 2005 decision in IN RE: GRAND JURY SUBPOENA, JUDITH MILLER, the Plame CIA leak case involving a claim of reporter’s privilege under the First Amendment:

The Honorable David B. Sentelle, Circuit Judge, U.S. Court of Appeals for the D.C. Circuit, wrote the majority opinion, inter alia, as follows:

“An investigative reporter for the New York Times; the White House correspondent for the weekly news magazine Time; and Time, Inc., the publisher of Time, appeal from orders of the District Court for the District of Columbia finding all three appellants in civil contempt for refusing to give evidence in response to grand jury subpoenas served by Special Counsel Patrick J. Fitzgerald. Appellants assert that the information concealed by them, specifically the identity of confidential sources, is protected by a reporter’s privilege arising from the First Amendment, or failing that, by federal common law privilege. The District Court held that neither the First Amendment nor the federal common law provides protection for journalists’ confidential sources in the context of a grand jury investigation. For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court. We further conclude that other assignments of error raised by appellants are without merit. We therefore affirm the decision of the District Court.”

Interesting is what Judge Sentelle writes as obiter dictum about blogs in this regard in his concurring opinion (which treats the common law issue differently than in the majority opinion, which he also authored, but in which the other two judges did not concur on Sentelle’s view of the law on this particular issue, leading him to write a concurring opinion for his own majority opinion – a rarity in judicial opinion-writing):

I base my rejection of the common law privilege theory on foundations of precedent, policy, and separation of powers.

As to precedent, I find Branzburg v. Hayes, 408 U.S. 665 (1972), to be as dispositive of the question of common law privilege as it is of a First Amendment privilege….

The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it

‘necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.'” 408 U.S. at 704.

The Supreme Court went on to observe that

“freedom of the press is a ‘fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’” Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)).

Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?”

The reasoning of the court follows the basic arguments we already outlined previously in LawPundit on this particular case prior to its decision.

Of course, based on Judge Sentelle’s reasoning, whatever applies to professional journalists also applies to bloggers.

See other postings on this matter at:

Appellate Law & Practice

Buzz Marketing with Blogs

Ex Parte

JurisPundit

UK Future

PoynterOnline

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EU Parliament Rejects Software Patent Directive

The European Commission‘s initiative for a directive permitting the patenting of software [Directive on the Patentability of Computer-Implemented Inventions, or CIIs] has been rejected by the EU Parliament, whose Conference of Presidents UNANIMOUSLY moved to demand that the Commission “restart” the whole process of proposing a directive on software patents.

This is a major victory for the forces that oppose patent protection for software in Europe – and these forces include the Law Pundit.

Excellent analysis of this significant development is found at the following articles:

Paul Meller of the International Herald Tribune reports in EU body scraps software-patent proposal that:

“In a rare move, the European Parliament on Thursday demanded that a proposal for a Europewide law on software patents be scrapped and the debate started again.”

Matthew Broersma of eWeek tells us further in greater detail at EU Parliament Approves Software Patent Restart that:

“A European Parliament body has adopted a motion to scrap the European Union’s proposed IT patenting legislation, amid growing criticism of the proposal from EU member states. The decision by the EP’s Conference of Presidents—the heads of the parliament’s political groups—is the last hurdle before the parliament can formally ask the Commission for a restart….

On Feb. 2, the EP legal affairs committee, JURI, voted nearly unanimously to call for the European Commission, the EU’s executive arm, to restart the legislative process around IT patenting. On Thursday morning the Conference of Presidents adopted JURI’s motion, which calls for a new first reading of the proposed directive.

In the meantime, the EU Council [of Ministers], the third branch of EU government, is still seeking to adopt the controversial text it agreed on in May. This would send the proposal in its current form back to the EP for a second reading, where it would be difficult for MEPs (members of European Parliament) to make changes.

The Commission may grant the EP’s request, or it may deny it and allow the proposal to go to a second reading, or it may withdraw the proposal entirely. If the proposal is withdrawn, the Commission can’t introduce another initiative on the same subject for two years. The national parliaments of Spain and the Netherlands last week adopted motions in support of a restart, and Germany is expected to adopt a similar resolution later on Thursday.”

Simon Taylor, IDG News Service, Techworld.com – EU Parliament demands patent law restart writes:

“Originally designed to extend patent protection to inventions that are implemented by computers, such as mobile phones or washing machines, the legislation has been attacked as opening the door to a US-style patent regime where “pure” software and business methodology, such as Amazon’s One Click online purchasing process, can be protected against imitation.”

A significant role in opposing the software patent directive has been played by Poland. See Jim Rapoza’s article Poland’s Stand Against European Patents Was Heroic.

The software patent issue is a highly controversial one, so much so that a rare demonstration occurred in Brussels against the directive.

Even Linus Torwalds, the father of Linux, “slammed the EU proposal“, as reported by Matthew Broersma in eWeek some months ago.

See the Wikipedia for a comprehensive analysis of this directive under
EU Directive on the Patentability of Computer-Implemented Inventions.
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Free Patents Online Database

The Free Patents Online Database is a powerful service for patent searches. According to their e-mail to us:

Free Patents Online…has free PDF downloading (instead of having to page through TIFFs like at the US Patent Office), and is faster than the US Patent Office’s site.”

They plan to add the ability to search US Applications along with US Patents soon.
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New EU Airline Rules Benefitting Passengers also apply to Foreign Carriers

As reported by Don Phillips in the International Herald Tribune and as also found in a USA Today article dated February 16/17, 2005, new tough EU Rules have been implemented protecting the rights of fliers.

Booming air travel in Europe due to European integration has required stiffer rules to protect passenger rights. In the new rules taking effect Thursday, February 17, for both domestic as well as foreign carriers, passengers with confirmed tickets denied boarding because of oversold seats will have to be compensated by airlines. In addition, passengers whose travel is seriously delayed or cancelled will have to be provided with food and phone service, and also with accommodations, if necessary.

The operative legislation is Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, which provides as follows ( .pdf file here – 17.2.2004 EN Official Journal of the European Union L 46/1):

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Economic and Social Committee(2),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty(3), in the light of the joint text approved by the Conciliation Committee on 1 December 2003,
Whereas:
(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.
(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.
(3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport(4) created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays.
(4) The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.
(5) Since the distinction between scheduled and non-scheduled air services is weakening, such protection should apply to passengers not only on scheduled but also on non-scheduled flights, including those forming part of package tours.
(6) The protection accorded to passengers departing from an airport located in a Member State should be extended to those leaving an airport located in a third country for one situated in a Member State, when a Community carrier operates the flight.
(7) In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the operating air carrier who performs or intends to perform a flight, whether with owned aircraft, under dry or wet lease, or on any other basis.
(8) This Regulation should not restrict the rights of the operating air carrier to seek compensation from any person, including third parties, in accordance with the law applicable.
(9) The number of passengers denied boarding against their will should be reduced by requiring air carriers to call for volunteers to surrender their reservations, in exchange for benefits, instead of denying passengers boarding, and by fully compensating those finally denied boarding.
(10) Passengers denied boarding against their will should be able either to cancel their flights, with reimbursement of their tickets, or to continue them under satisfactory conditions, and should be adequately cared for while awaiting a later flight.
(11) Volunteers should also be able to cancel their flights, with reimbursement of their tickets, or continue them under satisfactory conditions, since they face difficulties of travel similar to those experienced by passengers denied boarding against their will.
(12) The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
(13) Passengers whose flights are cancelled should be able either to obtain reimbursement of their tickets or to obtain re-routing under satisfactory conditions, and should be adequately cared for while awaiting a later flight.
(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.
(15) Extraordinary circumstances should be deemed to exist where the impact of an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay, an overnight delay, or the cancellation of one or more flights by that aircraft, even though all reasonable measures had been taken by the air carrier concerned to avoid the delays or cancellations.
(16) In cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.
(17) Passengers whose flights are delayed for a specified time should be adequately cared for and should be able to cancel their flights with reimbursement of their tickets or to continue them under satisfactory conditions.
(18) Care for passengers awaiting an alternative or a delayed flight may be limited or declined if the provision of the care would itself cause further delay.
(19) Operating air carriers should meet the special needs of persons with reduced mobility and any persons accompanying them.
(20) Passengers should be fully informed of their rights in the event of denied boarding and of cancellation or long delay of flights, so that they can effectively exercise their rights.
(21) Member States should lay down rules on sanctions applicable to infringements of the provisions of this Regulation and ensure that these sanctions are applied. The sanctions should be effective, proportionate and dissuasive.
(22) Member States should ensure and supervise general compliance by their air carriers with this Regulation and designate an appropriate body to carry out such enforcement tasks. The supervision should not affect the rights of passengers and air carriers to seek legal redress from courts under procedures of national law.
(23) The Commission should analyse the application of this Regulation and should assess in particular the opportunity of extending its scope to all passengers having a contract with a tour operator or with a Community carrier, when departing from a third country airport to an airport in a Member State.
(24) Arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration by the Ministers of Foreign Affairs of the two countries. Such arrangements have yet to enter into operation.
(25) Regulation (EEC) No 295/91 should accordingly be repealed,

HAVE ADOPTED THIS REGULATION:

Article 1
Subject

1. This Regulation establishes, under the conditions specified herein, minimum rights for passengers when:
(a) they are denied boarding against their will;
(b) their flight is cancelled;
(c) their flight is delayed.
2. Application of this Regulation to Gibraltar airport is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.
3. Application of this Regulation to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 enter into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.

Article 2
Definitions

For the purposes of this Regulation:
(a) “air carrier” means an air transport undertaking with a valid operating licence;
(b) “operating air carrier” means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger;
(c) “Community carrier” means an air carrier with a valid operating licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers(5);
(d) “tour operator” means, with the exception of an air carrier, an organiser within the meaning of Article 2, point 2, of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours(6);
(e) “package” means those services defined in Article 2, point 1, of Directive 90/314/EEC;
(f) “ticket” means a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent;
(g) “reservation” means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator;
(h) “final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected;
(i) “person with reduced mobility” means any person whose mobility is reduced when using transport because of any physical disability (sensory or locomotory, permanent or temporary), intellectual impairment, age or any other cause of disability, and whose situation needs special attention and adaptation to the person’s needs of the services made available to all passengers;
(j) “denied boarding” means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;
(k) “volunteer” means a person who has presented himself for boarding under the conditions laid down in Article 3(2) and responds positively to the air carrier’s call for passengers prepared to surrender their reservation in exchange for benefits.
(l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.

Article 3
Scope

1. This Regulation shall apply:
(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;
(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.
2. Paragraph 1 shall apply on the condition that passengers:
(a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,
– as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,
or, if no time is indicated,
– not later than 45 minutes before the published departure time; or
(b) have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.
3. This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.
4. This Regulation shall only apply to passengers transported by motorised fixed wing aircraft.
5. This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.
6. This Regulation shall not affect the rights of passengers under Directive 90/314/EEC. This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight.

Article 4
Denied boarding

1. When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier. Volunteers shall be assisted in accordance with Article 8, such assistance being additional to the benefits mentioned in this paragraph.
2. If an insufficient number of volunteers comes forward to allow the remaining passengers with reservations to board the flight, the operating air carrier may then deny boarding to passengers against their will.
3. If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9.

Article 5
Cancellation

1. In case of cancellation of a flight, the passengers concerned shall:
(a) be offered assistance by the operating air carrier in accordance with Article 8; and
(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:
(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or
(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or
(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.
2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.
3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.

Article 6
Delay

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
(a) for two hours or more in the case of flights of 1500 kilometres or less; or
(b) for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or
(c) for four hours or more in the case of all flights not falling under (a) or (b),
passengers shall be offered by the operating air carrier:
(i) the assistance specified in Article 9(1)(a) and 9(2); and
(ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).
2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.

Article 7
Right to compensation

1. Where reference is made to this Article, passengers shall receive compensation amounting to:
(a) EUR 250 for all flights of 1500 kilometres or less;
(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;
(c) EUR 600 for all flights not falling under (a) or (b).
In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.
2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked
(a) by two hours, in respect of all flights of 1500 kilometres or less; or
(b) by three hours, in respect of all intra-Community flights of more than 1500 kilometres and for all other flights between 1500 and 3500 kilometres; or
(c) by four hours, in respect of all flights not falling under (a) or (b),
the operating air carrier may reduce the compensation provided for in paragraph 1 by 50 %.
3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.
4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.

Article 8
Right to reimbursement or re-routing
1. Where reference is made to this Article, passengers shall be offered the choice between:
(a) – reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant,
– a return flight to the first point of departure, at the earliest opportunity;
(b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or
(c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.
2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC.
3. When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.

Article 9
Right to care

1. Where reference is made to this Article, passengers shall be offered free of charge:
(a) meals and refreshments in a reasonable relation to the waiting time;
(b) hotel accommodation in cases
– where a stay of one or more nights becomes necessary, or
– where a stay additional to that intended by the passenger becomes necessary;
(c) transport between the airport and place of accommodation (hotel or other).
2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.
3. In applying this Article, the operating air carrier shall pay particular attention to the needs of persons with reduced mobility and any persons accompanying them, as well as to the needs of unaccompanied children.

Article 10
Upgrading and downgrading
1. If an operating air carrier places a passenger in a class higher than that for which the ticket was purchased, it may not request any supplementary payment.
2. If an operating air carrier places a passenger in a class lower than that for which the ticket was purchased, it shall within seven days, by the means provided for in Article 7(3), reimburse
(a) 30 % of the price of the ticket for all flights of 1500 kilometres or less, or
(b) 50 % of the price of the ticket for all intra-Community flights of more than 1500 kilometres, except flights between the European territory of the Member States and the French overseas departments, and for all other flights between 1500 and 3500 kilometres, or
(c) 75 % of the price of the ticket for all flights not falling under (a) or (b), including flights between the European territory of the Member States and the French overseas departments.

Article 11
Persons with reduced mobility or special needs
1. Operating air carriers shall give priority to carrying persons with reduced mobility and any persons or certified service dogs accompanying them, as well as unaccompanied children.
2. In cases of denied boarding, cancellation and delays of any length, persons with reduced mobility and any persons accompanying them, as well as unaccompanied children, shall have the right to care in accordance with Article 9 as soon as possible.

Article 12
Further compensation

1. This Regulation shall apply without prejudice to a passenger’s rights to further compensation. The compensation granted under this Regulation may be deducted from such compensation.
2. Without prejudice to relevant principles and rules of national law, including case-law, paragraph 1 shall not apply to passengers who have voluntarily surrendered a reservation under Article 4(1).

Article 13
Right of redress
In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.

Article 14
Obligation to inform passengers of their rights
1. The operating air carrier shall ensure that at check-in a clearly legible notice containing the following text is displayed in a manner clearly visible to passengers: “If you are denied boarding or if your flight is cancelled or delayed for at least two hours, ask at the check-in counter or boarding gate for the text stating your rights, particularly with regard to compensation and assistance”.
2. An operating air carrier denying boarding or cancelling a flight shall provide each passenger affected with a written notice setting out the rules for compensation and assistance in line with this Regulation. It shall also provide each passenger affected by a delay of at least two hours with an equivalent notice. The contact details of the national designated body referred to in Article 16 shall also be given to the passenger in written form.
3. In respect of blind and visually impaired persons, the provisions of this Article shall be applied using appropriate alternative means.

Article 15
Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.
2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.

Article 16
Infringements
1. Each Member State shall designate a body responsible for the enforcement of this Regulation as regards flights from airports situated on its territory and flights from a third country to such airports. Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected. The Member States shall inform the Commission of the body that has been designated in accordance with this paragraph.
2. Without prejudice to Article 12, each passenger may complain to any body designated under paragraph 1, or to any other competent body designated by a Member State, about an alleged infringement of this Regulation at any airport situated on the territory of a Member State or concerning any flight from a third country to an airport situated on that territory.
3. The sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and dissuasive.

Article 17
Report

The Commission shall report to the European Parliament and the Council by 1 January 2007 on the operation and the results of this Regulation, in particular regarding:
– the incidence of denied boarding and of cancellation of flights,
– the possible extension of the scope of this Regulation to passengers having a contract with a Community carrier or holding a flight reservation which forms part of a “package tour” to which Directive 90/314/EEC applies and who depart from a third-country airport to an airport in a Member State, on flights not operated by Community air carriers,
– the possible revision of the amounts of compensation referred to in Article 7(1).
The report shall be accompanied where necessary by legislative proposals.

Article 18
Repeal

Regulation (EEC) No 295/91 shall be repealed.

Article 19
Entry into force

This Regulation shall enter into force on 17 February 2005.

This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 11 February 2004.

For the European Parliament
The President
P. Cox

For the Council
The President
M. McDowell

(1) OJ C 103 E, 30.4.2002, p. 225 and OJ C 71 E, 25.3.2003, p. 188.
(2) OJ C 241, 7.10.2002, p. 29.
(3) Opinion of the European Parliament of 24 October 2002 (OJ C 300 E, 11.12.2003, p. 443), Council Common Position of 18 March 2003 (OJ C 125 E, 27.5.2003, p. 63) and Position of the European Parliament of 3 July 2003. Legislative Resolution of the European Parliament of 18 December 2003 and Council Decision of 26 January 2004.
(4) OJ L 36, 8.2.1991, p. 5.
(5) OJ L 240, 24.8.1992, p. 1.
(6) OJ L 158, 23.6.1990, p. 59.

Commission Statement

The Commission recalls its intention to promote voluntary agreements or to make proposals to extend Community measures of passenger protection to other modes of transport than air, notably rail and maritime navigation.

Legal action against the new rules was already started more than a year ago, but thus far with little success.
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The Internet Began on a Yellow Legal Pad

We are quite proud to be the only legally-related blog (that we know about) whose background consists of simulated yellow legal pad paper, commonly used in many law firms.

Did you know that the Internet as we know it today really started out on the yellow paper of a legal pad?

Katie Haffner has a February 16, 2005 New York Times article entitled Laurels for Giving the Internet Its Language, which reports that Vinton G. Cerf and Robert E. Kahn will receive the A.M. Turing Award, computing’s equivalent of the Nobel Prize.

It occurred in the summer of 1973, when Cerf and Kahn sketched their ideas on a yellow legal pad in a conference room of the Cabana Hyatt Hotel in Palo Alto, California, right next to Stanford University, thus creating, as Haffner writes,

“the structure for Transmission Control Protocol and Internet Protocol, or TCP/IP, a set of communications standards that enable different computer networks to share information, giving the Internet its power and reach.”

Haffner writes further:

“A lot of people are responsible for the success of the Internet,” said David Patterson, a professor of computer science at the University of California, Berkeley, who is president of the association. “Vint and Bob are responsible for the vocabulary of the Internet.”

With that first generation of pioneers now graying, researchers and archivists are pondering the birth of the Internet in historic terms. That old yellow pad, if it had not been lost decades ago, would be a valuable collector’s item now.

Read the whole article here.
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