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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Free Public Records Directory by Search Systems

Have you seen this?

The absolutely fantastic
Search Systems Free Public Records Directory.

We did a search and bingo, they had the information we were seeking.

Amazing site.
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The Charter of Fundamental Rights – EU (European Union)

What do people know about the EU Constitution and the EU Charter of Fundamental Rights?

Generally, as far as the legal status of the Charter is concerned, it is a part of the EU Constitution, a constitution which is currently in the process of ratification by the EU Member States:

“The European Constitution replaces most existing treaties and consists of four parts. The first part defines the European Union and its values, objectives, responsibilities, decision-making procedures and institutions. The second part incorporates the Charter on fundamental rights. The third part describes the policy and actions of the European Union. The fourth and last part contains the final clauses, including the procedures for approval and a possible revision of the Constitution.” [emphasis added]

A detailed presentation of the Charter is found at the EU Justice & Home Affairs website.

Even though the Charter is not yet legally “binding” on EU Member States, it is already having an impact:

“Since December 2000 and awaiting the ratification of the Constitution by 1st November 2006 (Article IV-447), the Charter has increasingly made its existence felt. More and more EU citizens are referring to its provisions in the letters, petitions and complaints they send to the European Parliament and Commission. EU lawyers, and specifically the Advocates General at the European Court of Justice, now regularly cite it in decisions – although they emphasise that it is not mandatory. In this way, the Charter is already achieving its first objective of making fundamental rights visible.”

Official EU information and the text of the Charter can be accessed at the EU website pages on the Charter, which summarize the Charter as follows:

“The European Union Charter of Fundamental Rights sets out in a single text, for the first time in the European Union’s history, the whole range of civil, political, economic and social rights of European citizens and all persons resident in the EU.

Here are the provisions of the EU Charter of Fundamental Rights which represents a major codified move forward for the forces of human civilization.

Chapter I – Dignity

Article 1
Human dignity
Human dignity is inviolable. It must be respected and protected.

Article 2
Right to life

1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.

Article 3
Right to the integrity of the person

1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
the free and informed consent of the person concerned, according to the procedures laid down by law,
the prohibition of eugenic practices, in particular those aiming at the selection of persons,
the prohibition on making the human body and its parts as such a source of financial gain,
the prohibition of the reproductive cloning of human beings.

Article 4
Prohibition of torture and inhuman or degrading treatment or punishment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5
Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. Trafficking in human beings is prohibited.

Chapter II – Freedoms

Article 6
Right to liberty and security

Everyone has the right to liberty and security of person.

Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.

Article 8
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.

Article 9
Right to marry and right to found a family
The right to marry and the right to found a family shall be guaranteed in accordance with the
national laws governing the exercise of these rights.

Article 10
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Article 11
Freedom of expression and information

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.

Article 12
Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Article 13
Freedom of the arts and sciences
The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Article 14
Right to education
1. Everyone has the right to education and to have access to vocational and continuing training.
2. This right includes the possibility to receive free compulsory education.
3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right.

Article 15
Freedom to choose an occupation and right to engage in work
1. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
2. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

Article 16
Freedom to conduct a business
The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.

Article 17
Right to property
1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
2. Intellectual property shall be protected.

Article 18
Right to asylum
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

Article 19
Protection in the event of removal, expulsion or extradition

1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

Chapter III – Equality

Article 20
Equality before the law

Everyone is equal before the law.

Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

Article 22
Cultural, religious and linguistic diversity

The Union shall respect cultural, religious and linguistic diversity.

Article 23
Equality between men and women

Equality between men and women must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

Article 24
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

Article 25
The rights of the elderly

The Union recognises and respects the rights of the elderly to lead a life of dignity and
independence and to participate in social and cultural life.

Article 26
Integration of persons with disabilities
The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.

Chapter IV – Solidarity

Article 27
Workers’ right to information and consultation within the undertaking
Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.

Article 28
Right of collective bargaining and action

Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

Article 29
Right of access to placement services

Everyone has the right of access to a free placement service.

Article 30
Protection in the event of unjustified dismissal
Every worker has the right to protection against unjustified dismissal, in accordance with
Community law and national laws and practices.

Article 31
Fair and just working conditions

1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

Article 32
Prohibition of child labour and protection of young people at work
The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations.
Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.

Article 33
Family and professional life

1. The family shall enjoy legal, economic and social protection.
2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

Article 34
Social security and social assistance

1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the procedures laid down by Community law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the procedures laid down by Community law and national laws and practices.

Article 35
Health care

Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Article 36
Access to services of general economic interest

The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.

Article 37
Environmental protection
A high level of environmental protection and the improvement of the quality of the environment must be integrated into the polices of the Union and ensured in accordance with the principle of sustainable development.

Article 38
Consumer Protection

Union policies shall ensure a high level of consumer protection.

Chapter V – Citizen’s Rights

Article 39
Right to vote and to stand as a candidate at elections to the European Parliament
1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.
2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.

Article 40
Right to vote and to stand as a candidate at municipal elections

Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.

Article 41
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a
reasonable time by the institutions and bodies of the Union.
2. This right includes:
the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Article 42
Right of access to documents

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.

Article 43
Ombudsman

Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

Article 44
Right to petition

Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.

Article 45
Freedom of movement and of residence

1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
2. Freedom of movement and residence may be granted, in accordance with the Treaty establishing the European Community, to nationals of third countries legally resident in the territory of a Member State.

Article 46
Diplomatic and consular protection

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.

Chapter VI – Justice

Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.

Article 48
Presumption of innocence and right of defence
1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.
2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.

Article 49
Principles of legality and proportionality of criminal offences and penalties

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.
3. The severity of penalties must not be disproportionate to the criminal offence.

Article 50
Right not to be tried or punished twice in criminal proceedings for the same criminal offence
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

Chapter VII – General Provisions

Article 51
Scope
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.
2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

Article 52
Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.
3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Article 53
Level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

Article 54
Prohibition of abuse of rights
Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.

© European Communities, 1995-2004
Reproduction is authorised, provided the source is acknowledged, save where otherwise stated.

Kyoto Protocol Takes Effect Today

MSNBC carries a February 16, 2005 AP report entitled Climate treaty takes effect, but will it matter?, with good coverage of the Kyoto Protocol (United Nations Framework Convention on Climate Change) which takes effect today in the 141 nations which have ratified the treaty. The USA is a signatory but has not ratified the protocol. The EU ratified the Kyoto Protocol on May 31, 2002.

What effect will this treaty have on the EU?

EU efforts to reduce gas emissions began formally in 2000 with ECCP, the European Climate Change Programme. The European Union accounts for 21% of global greenhouse gas emissions and effective January 1, 2005 has implemented an emissions trading market, the EU ETS (European Union Greenhouse Gas Emission Trading Scheme) based on Directive 2003/87/EC.

The EU is targeted to cut emissions by 8 percent below 1990 levels by 2012.

Critics of the Kyoto treaty are sceptical that it will be effective citing to signatories such as Spain and Portugal whose emissions by 2002 were already 40.5 percent above the baseline 1990 levels. Much has been made of the US failure to ratify the treaty, but U.S. emissions are up by only 13.1 percent during the comparable period.

Meeting emission requirements will be easier for the newer Member States of the European Union. Due to the widescale collapse of Soviet industries, East European emissions are down substantially from Soviet-era levels.

Developing nations who are signatories to the Kyoto Protocol do not have to abide by its GHG (greenhouse gases) emission guidelines. Rather, they are “expected to benefit from transfer of technology and additional foreign investments into sectors like renewable energy, energy generation and afforestation project when the Kyoto Protocol comes into force.”

One of the arguments of the USA is that if the developed countries strive to reduce their emissions, production will shift to the developing countries who are not bound by the dictates of the Kyoto Protocol. There is no question that this is a problem, but you have to start somewhere. Our solution would be to put severe “emission tariffs” on products made in countries which are not ratifying signatories to the Kyoto Protocol and/or which are not abiding by its dictates, including the developing countries. Pollution is pollution no matter whether you are rich or poor.

Useful links on the Kyoto Protocol are:

Kyoto Protocol Celebrations and Activities

Pew Center – Global Climate Change

CAN Europe – Climate Action Network Europe

New Scientist on Climate Change

Crossposted to EU Pundit.
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How did Writing Begin?

We all use writing nearly every day, but how did writing really begin?

Here is an interesting theory at the Ancient World Blog Stonehenge.

Online Literary Journalism Course

A recent Stanford Law alumni posting contains a link to the AllLearn (Oxford, Stanford, Yale) Online Course on Literary Journalism written by Stanford Lecturer Tom Barbash, the very successful non-fiction author of On Top of the World.

As written there:

“Tom Barbash is the author of the New York Times bestselling nonfiction book, On Top of the World, the story of Cantor Fitzgerald, the bond firm that was massacred on September 11. He is also the author of the novel, The Last Good Chance, which was published in 2002, was awarded the California Book Award for best first work in fiction, and was a Publishers Weekly “Best Book of the Year.” He currently teaches at Stanford, where he was Wallace Stegner Fellow, and at California College of the Arts. He was the recipient this year of a National Endowment of the Arts Grant in fiction.”

Take a look at this course. It is a bit pricey if your bank account is low, but it may lead to your road to literary or blawging success.

The "nofollow" URL attribute against spam

The Google Blog has the simplest explanation we have found of the new “nofollow” attribute on URLs as a means of preventing comment spam and similar URL spam abuses.

Not only have the major blog software makers signed on to this project, but MSN Search, Yahoo and also Wikipedia (1.4 Beta 6) are on board.

Do you follow?

EU Pundit – The European Union Blog – Is Launched

The Law Pundit has launched the new EU Pundit blog on the European Union to cover our future Europe-related postings. This is a significant event in terms of the conclusions upon which this new launch is based.

The LawPundit is written by a US expatriate who has lived and worked in Europe for many years and who has a greater familiarity with European events than most expatriate bloggers, many of whom are often in Europe only for (relatively) short(er) periods of time.

The Law Pundit sees Europe as slowly but surely headed in the direction of a process of reformation with respect to its previously strong ties to America. We take no political sides on this issue, by the way, but merely record the obvious. There are many reasons for this development, some of course having to do with foreign policy differences between American and European political leaders and constituencies, especially as regards the Iraq War. However, the roots of the separation are deeper than serendipity current events alone. The problems with Iraq will pass, but what else is to come?

Understandably – from an objective non-partisan point of view – is the recognition that Europe is now in the process of trying to shake off the American domination which has necessarily marked European affairs ever since the end of World War II.

To understand American dominance fully, one really should read Arthur M. Schlesinger, Sr., editor, The Dynamics of World Power: A Documentary History of United States Foreign Policy 1945-1973, a five-volume compendium later reprinted in paperback in 10 volumes and available through AbeBooks. This compendium contains many documents about World War II and its aftermath, the knowledge of which is essential to anyone wishing to make any informed pronouncements about American politics in those or subsequent years.

For example, one of the plans discussed in the United States in the aftermath of WWII was the idea of reducing Germany to a simple agrarian state in which industry would be prohibited. This idea was rejected by the stronger faction of opinion in American political leadership which held that Germany occupied a central position in Europe and that the resurrection of its war-torn economy was crucial to the reconstruction of the European nations. This sentiment ultimately led to the adoption of the Marshall Plan, whose still remaining 12-billion-dollar fund the current incompetent German administration, under a hapless Chancellor Schroeder, recently considered appropriating for its own partisan political purposes.

For the last sixty years, Europe has generally welcomed and accepted American world leadership as a given. Indeed, it had little choice. Europe was a shattered shell in 1946 and only America had the requisite economic, military, and political means to lead the free world.

From the standpoint of Europe, America has done so brilliantly, bringing a peace to Europe otherwise never experienced in the Old World in the years of history when they were captains of their own fate.

In the last fifteen years the European relationship to America has substantially changed. Surely this is accounted for to some degree by Gorbachov‘s Glasnost and Perestroika, the subsequent political collapse of the Soviet Union and by the fall of Berlin Wall. However, just as that wall has crumbled, so also has the lowering of borders in all of Europe led to a different European situation. When borders fall, new allegiances are inevitable to reflect the resultant shifts of power. America still leads the world and is by far the world’s strongest nation militarily, but in view of a world of 6 billion people, it is not a position that it will easily hold in coming years.

It is thus not surprising that this American leadership position is now being brought into question, even by its allies, not simply because there may be disagreements concerning the correct political direction of their joint efforts, but also because the Europeans are asserting what they see as their own vested interests. These interests, logically, do not always mesh with those of Uncle Sam, although these interests have a schizophrenic component, which is Europe’s reliance on NATO for its military protection.

Part of this process of reformation of European attitudes toward the USA is instigated by and is an integral part of the emerging European Union, which is slowly trying to create politically something which has never been accomplished militarily – and that something is the creation of a United States of Europe (the term comes from a 1946 speech given in Zürich by Winston Churchill) – i.e. an all-encompassing European Union (the EU) which could easily rival the United States in political, military and economic power down the road.

Another part of the process of reformation is Europe’s real sense of economic and political strength. After all, the EU, with the accession of the 10 new member states, has a population of 450 million, which thus greatly exceeds the USA (ca. 300 million) in population.

Still another – negative – part of the process of reformation is the ever-present nationalism which often erupts as negatively charged sentiment toward the Big Brother over the ocean.

EU Pundit will be devoted to an examination of these processes.