VOL. 1 | ED. 3 SEPTEMBER 19, 2013
EXPLORING A FRESH LEGAL PERSPECTIVE THE ONLY FULLY STUDENT-POWERED LEGAL MAGAZINE IN ROMANIA
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EDITOR’S NOTE
By Calin Muresanu and Alexandru Coras
Allow us to start this
If I had to summarise this third Lawyr.it issue and the process behind it in one word, I would definitely say improvement. What in the beginning was an ambitious idea, managed to slowly shape-up into the peer-reviewed legal journal you see today. More articles, coming from students from eight different universities; eleven new members in the Lawyr.it team; new ideas, projects, rewards; four new institutional partners spread across the country: all these illustrate the growing path on which Lawyr.it has embarked, and the great potential the project has makes me wonder of what is still to come.
third issue by thanking all of you for the tremendous amount of support we have received from you. With over 600 likes on Facebook and several thousand views on our articles posted on the Lawyr.it website, we feel overwhelmed by the popularity we have reached as a start-up peer-reviewed journal. We couldn’t have As a brand new member to the team, I can offer done it without you and we invite you to keep fol- an inside point of view regarding the present and the future of Lawyr.it. Everyone is smart, visionary, lowing us - there is more in store for our readers! professional, hard working, trying to do his/her job Since our second issue, we have signed several key best. Working in such an environment is easy and partnerships with law firms and institutions in the motivating, setting up the grounds for success. So domain that help us expand the amount of benefits far, our team focused on delivering a quality prodthat we can offer for the students submitting arti- uct, with well written articles, attractive topics, incles. Starting this issue, law firms will be selecting terviews from personalities in the legal field and the best articles and their writers will be offered debates surrounding controversial matters. For this internships and the opportunity to work with some to happen, everything from marketing to editing of Romania’s best lawyers at the moment. As we have had to be properly done, and our team proved to be promised since our first issue, Lawyr.it intends to be more than up for the job. more than just another law journal; it should rather be a community of young law professionals, and this Regarding the near future, I am confident that Lawyr.it will continue to expand, through new was just one of many steps towards that end. projects and by developing new platforms for law Consequently, this issue brings nine articles written students’ development, both locally and internaon a variety of themes, from abortion and women’s tionally. Better articles, more partners and a wider rights under Romanian Labour Law, to the signifi- recognition in the legal world are just some of our cance of Cybersquatting or the value of a trade- declared targets for mark. You will also have the chance to read about the next issues. civil partnerships in EU, under our debate section, or about the ideal features of a candidate, in the ‘Our I am proud to be a member of the team Partners’ section. behind this third isWe also would like to invite you to follow our web- sue and I hope you site and our social media profiles. Our team will be will enjoy reading it constantly working on providing you with informa- as much as I enjoyed tion about various moot competitions, interviews working on it! with law professionals, internship offers and different other opportunities for law students that you might be interested in. 4
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IN THIS EDITION Domestic Focus Lawyers’ professional secrecy. Suggestions for future regulations (p. 8) Brief history of abortion regulation in Romania: From communism to democracy (p. 10) Discriminating women under the Labour Law: Between the positive and the negative fringe (p. 12)
Reflections Socrates’ ethics’ legacy in the legal framework? (p. 16) Should public policy be influenced by behavioural sciences? (p. 18)
Professional Spotlight Interview: Cosmin Vasile - Managing Partner - Zamfirescu Racoţi & Partners (p. 22) The ideal candidate: What employers are looking for in a trainee (p. 25)
International Focus The claims control clause within international sea transport contracts (p. 28) The importance of a trademark for a company (p. 30) A walk towards a European Code of Civil Procedure (p. 32) Cybersquatting and legal controversies arising from domain name registration (p. 34)
Devil’s Advocate Should civil partnerships be recognised at an European level? (p. 38)
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DOMESTIC FOCUS
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DOMESTIC FOCUS Lawyers’ professional secrecy. Suggestions for future regulations
The institution of professional
secrecy is covered nowadays by minute regulation in what concerns its applicability for exerting the legal profession. Nevertheless, in day-to-day practice, certain circumstances may occur which find no resolution by means of legal provisions. The purpose of this article is to identify such circumstances and to analyse them according to the possible solutions provided by the Romanian legislator, and, where no such solution exists, to propose new ideas, either personal, or inspired by the legislation of other countries.
fees quoted. The unconditional character of professional secrecy covers just the information provided by the client in the cause the lawyer’s services are called for. Therefore, the professional statute provides that the lawyer is obliged to keep the secret concerning any aspect of the cause entrusted. On the contrary, if the client’s disclosures do not regard the cause entrusted, the obligation of keeping the secret is void. For instance, if a person asks a lawyer to assist him/her in a divorce action and shares with the lawyer his/ her plan to kill the spouse, the lawyer would not be obliged to keep the silence any longer.
Being not bound by the professional secrecy and taking into account that he/she has just found out First of all, I will offer a brief overview of the term about a murder plot, how shall the lawyer proceed professional secrecy and its specific features, in or- in such a circumstance? Neither Law 51/1995, nor der to identify particular legal issues which need to the professional statute indicate any solution. be debated. I would propose, as a future provision, taking as an Professional secrecy means both the right and the example the US Lawyers Code of Conduct, to enobligation of a lawyer not to disclose any acts and force a rule that states that, when a lawyer finds out deeds found out from his/her clients or even from from the client about the client’s intention to comthird parties, while performing his/her duties mit a serious crime (as for example pointed against (Dănilă, 2008). By the very nature of his/her mis- a person’s life, health or freedom) he/she has the sion, the lawyer is the trustee of his/her client’s se- right, but not the obligation, to report that person. crets and the recipient of information of confiden- The solution is sensitive, since as a general rule, the preparations of a crime are not incriminated. The tial nature. criminal intentions alone, without being accompaKeeping the professional secrecy is an uncondition- nied by the actual proceedings to bring them to life, al and timeless commitment. The statute of the pro- could not be subject to an obligation to denounce fession declares that professional secrecy is of public such intentions from the lawyer’s side. order, and that the lawyer is not allowed to disclose it under any circumstance. However, there are two On the other hand, a regulation by which the lawequally unambiguous exceptions from this implac- yer’s right to denounce such criminal intentions is able and adamant rule: (1) the lawyer’s obligation provided, would be extremely useful. The lawyer to report some cases as provided by Law 652/2002 would be able to make a distinction between differon preventing and sanctioning money laundering; ent types of guilt in terms of their seriousness de(2) the lawyer’s right to use the information strictly gree. This way, the lawyers would clearly acknowlin his/her defence when criminally or disciplinary edge the situations when they can legally decline the prosecuted, or complaints are lodged regarding the secrecy keeping. 8
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Under the assumption that the lawyer fails to denounce the criminal intentions and the offence is committed in line with the client’s affirmations, I consider that what previously was a right now turns into an obligation. Failure to comply with it would fall under Article 262 of the Criminal Code, making the lawyer responsible for the crime of non-denunciation. This solution is based on the gaps in the laws regulating the lawyer’s profession, as well as on the likelihood that such an omission comes under the provisions of criminal law. In a future regulation, this aspect utterly needs to be clarified.
proposal and adopts a reality distorting defense strategy? Could that entail criminal or disciplinary actions against him/her?
In what concerns criminal liability, the answer is definitely no. The lawyer cannot be held responsible for this offence in the same manner in which the defendant cannot be held liable for the offence of forged statements regarding the deed he/she is tried for, as he/she is entitled to defend and not to incriminate himself/herself. Moreover, should the contrary solution be adopted, it would mean that any time a court of law gives a sentence which is contrary to the lawThese challenges would not occur when the client yer’s plea, the lawyer is to be investigated for the ofprovides information, even about serious offences, if fence of forged statement. It would actually mean that it is closely related to the cause the client requests the the judicial truth is the supreme truth, which is not lawyer’s services for, because it is covered by the un- acceptable. conditional character of professional secrecy. Things are a little vague about the confessions unrelated to In what concerns disciplinary liability, I am stating my opinion that the lawyer should be held liable only if the case on trial. there is clear evidence of deceitful defence, although Another aspect which is unclear, and might be fre- the client confessed the truth, and his/her confession quently encountered in practice, is represented by the should and could have been considered as truthful strategy adopted by the lawyer when the client admits by the lawyer. The things are more complicated if the in front of the lawyer the crimes he/she is accused of, lawyer has some doubts concerning the client’s statebut asks the lawyer to plead for his/her innocence. ments, which deny any solid piece of evidence lodged Using the same arguments as above, it is clear that the with the case file. If so, the lawyer is entitled to discard lawyer cannot denounce the client’s deed. Being close- any of the client’s statements, and the lawyer cannot ly related to the case on trial, the client’s confession is be held accountable for untruthful defence. The exprotected by the professional secrecy institution. planation for this solution is that even the court is not obliged to decide on the basis of one confession, havEven so, many questions still remain as to the way the ing the possibility to release a contrary decision, if the lawyer is to proceed . It has been stated that, in such other pieces of evidence collide with the defendant’s circumstances, the lawyer should use all the useful statement of confession. persuasion means to make the client reconsider, and, if the lawyer fails, he/she should cease to represent In conclusion, analysing certain practical situations the client, unless by the sudden resignation the law- pertained to the lawyer’s profession, it can be seen yer would bring prejudice to the client (Periețeanu, that numerous questions mat arise which find no clear 1943). I fully adhere to this opinion and at the same answers in the framework of the current legislation. I time I consider that it should also be enforced in the consider that the entire status of the professional seEU Lawyers Code of Conduct. crecy should be debated in a future enactment. In that respect, I have proposed new ideas, or ideas inspired When the lawyer succeeds in convincing the client to by the legislation of other countries, to ignite debates give up the strategy of falsifying the truth, the lawyer’s amongst the readers of this magazine. plea has to be confined to a strictly formal defense. This is the case if a right judicial individualisation of the punishment is achieved, the legal procedures are By Alexandru Parlea complied with, and the rights of the defendant are respected. But what if the lawyer accepts the client’s 9
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DOMESTIC FOCUS Brief history of abortion regulation in Romania: From communism to democracy
The general consensus upon
through Decree 463/1957, abortion was legalised, if requested by the pregnant woman and carried out in universal values facilitate po- medical institutions under the supervision of qualilitical decisions which push fied personnel. certain actions and inactions towards one side of the grey/ As Nicolae Ceauşescu took over power in 1965, neutral line that separates principles of the demographic policy changed draswhite from black, good from tically. According to the vision of the Romanian bad, tolerated from frowned Communist Party, every family’s contribution to the upon, legal from illegal, or the growth of population was an honour and an obliother - closer or farther from gation and every citizen was bound to contribute it, depending on the situation. to the flourishing of the socialist nation through For instance, it is generally accepted that ending a new generations (Klingman, 2000). Failing to take person’s life is far into the ’black zone’, there is no into account social and demographic phenomenas controversy around it; exposing one’s private life - such as the demographic transition and attributing debatable, but still labeled as wrong. Yet, there are the 12.3‰ birth rate decrease from 1955 to 1966 situations when values conflict and clash, while (Statistical Yearbook of Romania, 1990) mostly to the general perception, as well as policy-making, pregnancy termination, the Council of State led by bounce around the grey/neutral line as grace- Nicolae Ceauşescu issued, without prior notice, the fully as the sine function graph around the axis. famous Decree 770/1966, through which abortion was outlawed. A fairly eloquent example of such a situation is abortion and its everchanging regulation in Romania, According to the preamble of the decree, the pracfrom the late 1950s onwards. During the commu- tice of abortion represented an anti-national and annist era, Romania pursued one of the most opressive ti-social action, an obstacle to normal development pronatalist policies in Europe, based on the prohibi- of the nation. Consequently, as Articles 2, 3 and 4 tion of abortion and total control over the private of the aforementioned Decree stated, pregnancy terlife; half of a decade and several laws later, our coun- mination could only be authorised exceptionally by try has one of the most liberal regulations among a medical comission during the first three months European countries concerning abortion. This pa- of pregnancy or, in case of a serious medical condition which endangered the woman’s life, during the per will recap how it all happened. first six months. The exceptional situations in which During the first years of communism, special atten- abortion could have been possible were as follows: tion was given to radical social change, as the new (1) the pregnancy represented a life-threatening government aimed for a comprehensive reform of risk, abortion being the only remedy; (2) one parinstitutions, norms and values established by the ent was suffering from a serious hereditary disease previous system. The aim was to weaken the soli- or congenital abnormality; (3) the pregnant woman darity of the traditional family, through policies like was suffering from a serious physical, mental or senthe liberalisation of abortion, access to divorce and sorial disability; (4) the woman had already given acces to the labour market for women, so as to cre- birth to four children and had them in care; (5) the ate a workforce composed of individuals uncon- pregnancy was the result of rape or incest. strained by family ties and tradition. Consequently, 10
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Nevertheless, the instruments communist political leaders chose as weapons against low birth rates never managed to tackle the roots of the issue. Banning abortion did not eradicate its practice; rather, it made it invisible for the public, while exposing women to physical and phychological risks inherent to illegal termination of pregnancies, as well as increasing the number or abandoned, handicapped and HIV-infected children. Due to the lack of long-term effects and little to no improvement of the situation in the following two decades, legislation was modified again through Decree 441/1985, regarding the exceptional situations in which abortion could be approved: the number of births and children in care was raised to five and another situation was added to the list - women could now terminate a pregnancy if they were 45 or older. This was the last form of abortion regulation until the fall of the communist regime in 1989. In the aftermath of the December 1989 revolution, Decrees 770/1966 and 441/1985 respectively, along with Articles 185-188 of the Criminal Code and several other regulations were abolished. Through Decree-Law 1 of December 26, 1989 the ban was removed and termination of pregnancy became legal, as long as the procedure took place in medical institutions, under specialised supervision and within the first three months of pregnancy, or even later in state of emergency or for therapeutic reasons. Though the new regulation was rather permissive, frequent violations under the form of abortion procedures outside medical institutions or without proper, qualified supervision were recorded. More than that, social reality proved that the vagueness of the legislation, combined with the lack of a firm position towards the issue at international level, left room for actions and inactions that were not covered by the law. Therefore, situations such as abortion in the absence of the mother’s consent, having a severe impact on women’s body integrity and health, remained unpunished. As a consequence, through Law 140/1996, Article 185 of the Criminal Code regarding the cases in which an abortion would be categorised as illegal, was reinstated.
for this purpose; (2) by a person who does not have a specialist qualification; (3) later than 14 weeks after conception. Attempt was punishable, as well as abortion in any circumstances without the consent of the pregnant woman. On the other hand, pregnancy termination was not to be punished if committed in any of the following circumstances: (1) it was necessary in order to protect the life, health and body integrity of the pregnant woman from an imminent danger that could not have been removed otherwise; (2) outside the 14-week period, for therapeutic reasons, in accordance with the law; (3) the pregnant woman was incapable of expressing her will, while the abortion was necessary for therapeutic reasons, according to the law. The Romanian legislation has kept this liberal approach ever since. Born as a counter-reaction to the extreme communist orientation and supported by international norms once Romania ratified the European Convention of Human Rights (ECHR) in 1994, the liberal orientation is subject for heated debates and controversies, with political, legal, moral, religious and variuous other arguments pulling the scale towards one side or the other. While the change was sudden and a hint too drastic at the time, almost a quarter of a century later, I believe that this is the path to follow. Though birth rates are continuously dropping, as history has taught us, the answer to the issue is not to be found in drastic measures regarding abortion, as long as areas such as healthcare and family planning and support are not fully exploited. After all, the woman’s right to dispose of her own body, as part of her right to private life, is undoubtly covered by ECHR, and as the democratic society we have claimed to be for the past twenty-four years, we ought to respect it at least just as much as we respect the idea of a certain right to life of the embrio. By Oana Cotoara
As stated in the aforementioned article, pregnancy termination by any means was a crime if committed in any of the following situations: (1) outside medical institutions or private practice offices authorised 11
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DOMESTIC FOCUS Discriminating women under the Labour Law: Between the positive and the negative fringe
This
article is inspired by the fifth article of Labour Law, which regulates the principle of non-discrimination and aims to bring up its uses regarding some effects on women as subjects of labour law.
ropean Parliament systematically contributes to the development of gender equality policy through the reports it issues.
As for Romania, women discrimination is displayed in both family and society. The Gender Barometer points out two patterns - a conservative patriarchal traditionalist model, which demands a gender hierarchy where the man is in a dominant position, and This topic has always been a newer one, egalitarianism-centred, which requires controversial. Due to many equality between men and women in rights and cases in which women appear chances to access the social competition. According as more exposed and vulnerable subjects of labour to the people that took part in the survey, the differlaw compared to men, decisions have been made ence between a woman’s and a man’s income is huge in order to offer more legal protection to women. (M. Banu, 2006). Women earn, on average, half of Ironically, this pushed the focus of the issue onto the what men earn and, in addition, there are four times other extreme - affirmative discrimination caused more women with no income than men. by excessive protection. This mechanism of constantly differentiating beMore than just once, the members of the so-called tween men and women is an important source of ‘Feminist group’ have been heard complaining that discrimination at the workplace. It is important to women cannot gain access to the legislative power highlight that an equal treatment to all employees ‘which counts’ (Y. Rassam, 1994). The Feminist does not mean uniformity or ignorance of their group is compound of people who aim to stop ‘nega- specific, concrete characteristics. On the contrary, a tive’ discrimination against women in all their areas reasonably and objectively differentiated treatment, of activity, including their labour legal rights. Statis- following a legitimate purpose, is the key to nontic arguments have been brought in order to prove discrimination. that women represent a minority in most states’ Parliaments and also in some of the UN Committees. The Defrenne case (EUCJ, Defrenne v. Sabena II, For example, the average in Europe’s Parliaments is 1976) turned out to be a landmark case in this field of 23,4% women, while in Romania there are only as the Court recognised direct effects of the principle ‘For equal work, equal wages for men and wom9,65% women. en’ and stated that the principle does not apply only The European Commissioner for Justice, Viviane to the actions of public authorities, but also to any Reding, has initiated a project in order to increase agreement that regulates in a collective way remuwomen’s immixture in the companies’ top struc- nerated work. tures with up to 30% by 2015 and up to 40% by 2020 (European Commission News, 2012). Therefore, the Provided that the wage includes any type of payEuropean Parliament adopted a Resolution support- ment, money or benefits that an employee receives ing this motion in July 2011. Four member states directly or indirectly on account of his/her work (France, Netherlands, Italy, and Belgium) have al- from the employer, an interesting preliminary quesready adopted similar mandatory measures. Other tion was addressed to the EUCJ in the case of Paolo states have encouraged soft-law measures. The Eu- Vergani c. Agenzia delle Entrate, 2005 (Georgescu, 12
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Cioriciu-Ştefănescu, 2010). The issue regarded a law that provided different tax rulings based on the age of the employee who chose to resign in advance. The Italian law allowed men to benefit from those conditions at the age of 55 and for women at 50. In order to encourage voluntary resignations, the Government reduced the taxes regarding the termination of labour contracts by half. The financial benefit was not paid by the employer directly as part of the wage. Instead, it was strongly related to that work agreement. According to Directive 76/2007, it is mandatory to offer the same conditions to both men and women when terminating the labour contracts, without any gender discrimination. Or, the inequality in this case was based exactly on the employees’ gender and could not be justified by comparison to other social security performances. This was an uncharacteristic case for women discrimination, as it portrayed a case of positive-discrimination. The concept of positive discrimination has been applied for the first time by the US Supreme Court in case Phillips (Phillips v. Martin Marietta Co, 1971) and became a legal principle through the reformation of the Civil Rights Act in 1991. However, the majority of the cases regard ‘negative’, unjustified discrimination of women. Although in the mentioned case the advantages yielded to women were unfair, there are situations when the principle of positive discrimination is indeed legal. Article 153 found in the Treaty on the Functioning of the European Union (TFEU) allows the EU to operate in the field of equality of chances related to labour bonds. Furthermore, Article 157 authorises positive discrimination in favour of women if based on objective reasons. For instance, in the Marschall case (EUCJ, Marschall v Land Nordrhein Westfalen, 1997) the Court decided that a national law which allowed female candidates to have priority if there were less women than men in a certain field was legal according to the EU law as long as the advantages were not automatic and men were guaranteed at least a review of their candidature.
form of protection due to their unique ability to give birth, but under reasonable terms (D. Izzy, 2005). This means that pregnant women’s condition cannot be assimilated neither to the usual working condition, nor to a temporary invalidity. Special measures in favour of women are also provided by Romanian Labour Laws. As Article 128 of the Labour Code states, women cannot be assigned to do night shifts (between 9 PM and 8 AM). Article 60 of the same Code also prohibits the dismissal of a pregnant woman if the employer was aware of her pregnancy. Due to the same reasons, some Governmental Decisions forbid assigning difficult tasks to sick women, which might put in danger their health even though these tasks are not clearly defined by the law. Another law, Governmental Emergency Ordinance 96/2003, states that if women employees are pregnant or have recently given birth, they must be given proper work conditions and even changes of the work environment must be made if necessary. All these advantages due to their temporary condition must be offered without any financial losses for women. In these cases, the employer is bound by doctor’s recommendation concerning which types of work the woman employee is able to perform, in order not to compromise her health. In conclusion, even though discrimination is a deeply-rooted, reproved phenomenon, I think it can prove to be a double edged sword. Though positive discrimination can be a good idea when used as a weapon against the negative phenomenon in its whole, it can harm much more if its purposes are crossed or exaggerated. Also, even if we cannot spot any beneficial consequences out of negative discrimination, we could see it as at least as a wake-up call for the entire society. By Diana Buzila
Through its jurisprudence (cases Elisabeth Dekker v (VJV-Centrum) Plus, 1991 and Brown v. Board of Education, 1954), The European Court of Justice accepted that pregnant women should have a special 13
REFLECTIONS
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REFLECTIONS Socrates’ ethics’ legacy in the legal framework?
I endorse the Socratic views
according to which justice is one of the most important gifts for humanity and that the respect that individuals are bound to give to laws represents each person’s main duty. Moreover, I would also state that this is not an obsolete approach for contemporary lawyers and law-makers, but a path that is continuously enriching itself. On the other hand, the dramatic episode of Socrates’ suicide is the most relevant example of a person taking responsibility in the name of a rational and ethical principle. In this article I intend to establish three aspects: (1) the relationship between moral and juridical principles; (2) the Socratic view on ethics, law, and responsibility; (3) the current relevance of Socrates’ ideas for contemporary law. Moral and juridical principles The fact that laws and juridical principles derived from ethics and customs is in fact demonstrated by the evolution of human society. The problem of moral legitimacy of positive laws, illustrated by historical and natural law studies, is one of the key aspects of the general theory of law and of the philosophy of legal studies. The first scholar to debate this issue was the famous Athenian Socrates and the conclusion was essentially the following: ethics can be measured in direct connection with the intentions and the effects of actions (Mircea Djuvara, 1940). In respect to Socrates’ principles, the famous Romanian academic Mircea Djuvara demonstrated that ethical and natural ideas are born under social pressure, but they can be evaluated as being right, wrong, good, or evil. In order to demonstrate that moral principles must be applied after a prior rational evaluation, he initi16
ated a series of dialogues with the Athenian citizens. The result was that he made himself lots of enemies because their beliefs of themselves were in clear contradiction with the truth given the fact that their appreciations were only subjective, not objective. In the trial from 399 BC, Socrates tried to present the rational explanations of facts and their consequences. He was accused of corrupting the minds of the youth of Athens and of impiety. The main cause for these accusations was his habit of continuously asking philosophical questions. The majority of jurors condemned him to death and, when asked to propose a punishment, he accused them of committing a crime against the entire polis. Consequently, he highlighted all the rational errors present in his accusers’ discourse and the derived ethical disputes. The idea of right as product of reason depends on practical circumstances, as debated in the dialogue of Gorgias, justice being a sum of rational proportions so that each individual’s well-being is not in opposition with that of others, but in a complementary relation. Ethics, law and responsibility The classical Greek period was confronted with strong disproof for the general principles of equity and justice, but also for liberty and equality, as the legitimate state had been replaced with tyranny. In this context, Socrates was the one to assume the role of representative of the civil society - he was the only member of the Group of 500 to oppose the conviction to death without a prior trial. One of the Nuremberg principles from 1946 was that each person charged with a crime under international law had the right to a fair trial on the facts and law. As a result, each of the twenty-two defendants was tried before given his/her penalty. Also, the right to a fair trial is proclaimed in article 10 of the Universal Declaration of Human Rights and in article 6 of the European Convention of Human Rights.
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The laws that wise leaders make have the goal to create social unity and to correct weakness. A unified polis is based on its citizens’ respect for law and any refusal to comply could bring the dissolution of the state. This is why Socrates took responsibility for his words and actions, considering that a refusal to comply with the received sentence would represent an unjust act towards the written laws, the divine, and traditional laws. Rational thinking and obedience to the laws are the only actions that can solve the conflict between democracy and aristocracy/oligarchy. The Socratic heritage His philosophy gave birth to several schools of ethics. It also planted the seeds of modern science and politics. His vision upon the eternal and universal character of laws was an important pillar for natural law theory. For Hugo Grotius, the creation of human community is justified by the moral and social nature of individuals. He carried on the Socratic rhetoric on natural and legal justice and on the natural and rational inclination of human beings to do what is good and right. Furthermore, contractualism sustains replacing tyranny or absolute monarchy with democracy in the name of the equal nature of man. For example, the English Revolution, the French Revolution and the American Revolution highlighted the importance of the separation of power, the autonomy of state and of citizens if the leader was incapable to follow their best interests. The Bill of Rights from 1689, Habeas Corpus Act from 1679 or the United States Declaration of independence from 1776 are the products of these extraordinary social and political movements and they all continue Socrates’ ideas concerning the equal and rational nature of man, capable of autonomy. Another original point of his vision is the relationship between education and the respect of law. He highlights the fact that law cannot be respected just by using sanctions, but also by means of a long process of prevention with the use of education in the spirit of rational and ethical thinking. Nowadays, in most of the European countries, but also in the USA, civic education is taught starting with primary school, but also in prisons, along with health and family life classes, vocational trainings, and literacy skills in order to rehabilitate and reinsert the excluded. As DelVecchio remarked (DelVecchio, 1995), So-
crates was the first ethicist and his judgments upon the categories of right and wrong continue to offer an example for both political and law practitioners. At the same time, one of the most important contributions of Socrates was his logical method of argumentation, combined with case-study, both used firstly in law schools and afterwards by lawyers in trials in order to better understand and explain a legal situation. The Socratic vision of justice as a rational, thus universal value, applied beyond geographical or cultural borders gave birth to the international law debates. Humans have all equal nature and status before any court and a crime against any of them is considered a crime against humanity and must be condemned by the international society. Despite recent relativisation of social circumstances, the rational method, as envisioned by Socrates, continues to apply. Justice is applied according to each situation, with the respect of both the practical elements and of the juridical principles. Justice is to be served with responsibility, thus with the understanding of the logical and ethical content of laws and the derived consequences. In conclusion, I wish to emphasize an important aspect of the Socratic view upon justice. Given the fact that the respect of law is the basis for the existence of the entire society, more attention should be given to the education of citizens. It should underline the equal and rational nature of human beings and the importance of assuming responsibility when refusing to comply with the laws. As presented in the Criminal code, the mechanisms that determine a citizen to respect the law should primarily be preventive, and compulsory measures should be applied only when necessary. Towards this goal, I would propose more classes of civic education, containing useful information for everyone, altogether with projects and workshops, encouraged and supported by local and national authorities, projects such as the worldwide Civic Education Project, Earth Day Program from 192 countries and the projects initiated by Pro-Democracy Association concerning integrity or good governance of the Romanian state. The result would be a more trustful relationship between citizens and the representatives of the state. By Oana Irimia 17
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REFLECTIONS Should public policy be influenced by behavioural sciences?
S ince 1776, the year in which
the same year, almost 67% of the families in similar situations refused to allow the organs and tissues of Adam Smith’s An Inquiry into their deceased relatives to be donated (Blair, 2012). the Nature and Causes of the Wealth of Nations was first pub- Moreover, in a study (Special Eurobarometer, 2010) lished, economists have wor- from 2010, the European Commission revealed anshiped the idea that individuals other interesting aspect. Belgium and the Nethermake the decisions that max- lands had a similar percentage of respondents that imise their profit (Smith, 1776). have answered ‘Yes’ to the question ‘If you were Therefore, everyone assumed asked in a hospital to donate an organ from a defrom the start the full rational- ceased close family member, would you agree?’ ity of humans. However, studies How is this contrast even possible given the proximfrom the early ‘80s (Kahneman, Tversky, 1979) reity and similarity of these two countries? vealed that people often make choices that seem to go against their best interests, despite the expected The explanation for this result is simple. While in outcome, from an objective observer’s point of view. Belgium the consent of the donor is presumed and This is how behavioural economy and psychology the family needs to explicitly say that they refuse have emerged as new sciences. Though research in to donate the organs or the tissue (opt-out clause), this area has offered mixed results, all studies con- in the Netherlands the regulation in this matter astradict the centuries-old paradigm concerning hu- sumes that you do not agree to the procedure and man rationality. therefore, you have to duly express your consent in this regard (opt-in clause). Though these situations This article aims to provide a glimpse into this new seem similar from the legal perspective of the outreality, which I personally recommend to be taken come of expressing consent, behavioural psycholointo account by the Romanian policymakers, now gists say that the frame in which the individual is and in the near future. Firstly, I will go through an lead to make a decision influences him/her in a example of how a very small detail could affect the great manner. whole society. Secondly, I will try to find ways in which behavioural science can contribute directly When debating the results of a joint research proto our common good. Finally, I will take a look at a ject (Davidai, Gilovich, Ross, 2012), the authors Romanian episode regarding organ donation. have suggested that the subjective influence of the frame may stand, in the matter of organ donation, Recent statistics reveal an interesting fact regarding as a moral and ethical question. They go further and organ donation rates in Belgium and in the Netherillustrate the moment of dealing with an opt-out lands. Though both countries are in the European clause, in which the respondent may face the folUnion and there is no huge cultural difference belowing question: ‘Do you want to stand out as an tween them and despite the fact that they have built exceptional misanthrope, someone who fails to step a legal framework that allows and encourages organ forward and do one’s duty as most good citizens do?’ donation, the result is quite unexpected. In 2011, in The reversed scenario for the opt-in clause would Belgium, over 70% of the families that were put in create a question similar to: ‘Why do you want to the position of consenting over the transplantation create additional complications for your dear loss of an organ from their deceased family member and not just respect the full memory of your him, agreed upon this procedure. In the Netherlands, in 18
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when there are enough donors in this world?’
legal framework. Though it had nothing to do with consulting any behavioural specialist, an interesting These minor variations seem to bear a dramatic in- episode in Romania epitomizes this argument. The fluence on our decision-making process. Behavioural regulation regarding organ donation is based on an economists have addressed this aspect and argued opt-in clause, but all the recent initiatives to change that this newly-accepted reality should be used in the the system to an opt-out clause have ended as paper benefit of common good without harming individuals airplanes for the legislators, due to public concerns and without restraining their freedom (Thaler, Sun- raised during the debate. stein, 2008). There is no surprise that shortly after David Cameron became the Prime-Minister of the This does not come as a surprise if we were to look United Kingdom, a team of advisers, led by Mr. Richar at the percentage of citizens in favour of organ donaThaler and called The Behavioural Insights Team, has tions (around 30%, well below the European average been established. Its main mission is to find ‘intelli- according to the Special Eurobarometer from 2010). gent ways to encourage, support and enable people to Therefore, if the Romanian legislators had considered make better choices for themselves’. this position of the citizens regarding organ donation, the failure in attempting to change the regulation In the European Voice’s Issue of May 16, 2012, profes- could have been avoided. sor Alberto Alemanno, a prominent voice in the EU’s regulatory practice, has proposed that the European The process of lawmaking has been, in a way, loyal Commission introduces a behavioural component to every country’s legal traditions and, as a corollary, into its regulatory impact-assessment system. Any every attempt to change the process has almost every measure adopted by the Commission regarding cli- time been blocked by the retrograde attitude of polimate change, food regulation or tobacco policy would ticians. Nevertheless, consulting the behavioural speimpact not only the social, economic and environ- cialists by the legislators should be an exception in the mental evolution of the EU, but also the behaviour of near future, rather than a rule. It depends only on how any European citizen. As other authors have argued the behavioural sciences will empathize with the lay (Amir, Ariely et alii, 2008), probably one of the main people, becoming at the same time an authoritative differences between behavioural sciences and eco- voice in the public policy debates. nomic models is that the latter does not provide a By Bogdan-Petru Buta more realistic perspective of a specific domain. Despite the scepticism that was voiced as to whether behavioural sciences would earn their place in the public policy debate (Dan Ariely, 2008) I do not share the same negativism. It appears clear that in order to influence public policy, a behavioural economist or psychologist should acquire thorough expertise not only in his research area, but also in other domains that would be influenced by the specific regulation. Otherwise, some of the important elements could be omitted and the outcome of the adopted regulation could prove worse than that achieved without consulting a behavioural specialist. Including behavioural sciences in the public policy debate could contribute to the development of emerging countries, such as Romania, and avoid any superficial transplant of foreign legislation in the national 19
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Professional Spotlight
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Interview: Cosmin Vasile Managing Partner - Zamfirescu Racoţi & Partners
Cosmin Vasile, Ph.D., has been a partner of Zam-
CV: The main challenge of being a lawyer, irrespective of the law firm you have to work for, is being able to comply with all of the client’s requests and act according to the mandate conferred by him/her. This means having a deep knowledge of your field and being available to put all your efforts into fulfilling the client’s needs and desires.
firescu Racoti & Partners Attorneys at Law since 2007. Cosmin acts as special counsel in commercial litigation and has gained a strong reputation in handling complex international arbitrations, including proceedings governed by the rules of ICC and LCIA, as well as less formal procedures using the Clearly, the utmost challenge is, as in any other proUNCITRAL arbitration rules. fession, to evolve and maintain yourself at a cerDuring the last five years, Cosmin has been acting as tain level, according to your career targets. Also, main counsel in more than 20 international arbitra- throughout your professional evolution, there are tion proceedings - arbitration cases before Vienna many other aspects that a lawyer has to take into acInternational Arbitration Center, one ad-hoc case count and maintain: his/her presence and visibility following the UNCITRAL rules, arbitration cases in the market, the relationship with his/her clients, before the Milan, Stuttgart and Hamburg Courts team cooperation, and maintaining a constant level of International Arbitration, and in over 50 FIDIC of professional excellence. disputes, being one of the most experienced lawyers in the field on the Romanian market. He has been What was never said nor ever written anywhere awarded the Diploma in International Arbitration is that people end up practicing law according to by the Chartered Institute of Arbitrators and is a fel- the principle ‘the right man in the right place’: being a good law practitioner does not imply being a low member of this institute. good lawyer; being a law practitioner with the reqLawyr.it: Why did you choose to become a lawyer uisite qualities for being a lawyer does not necesinstead of other legal professions? When did you sarily imply being outstanding and able to rise up realise that dispute resolution was the field you to the effort that being a lawyer entails. As previwanted to work in? ously mentioned, as far as I am concerned, it was all CV: I always knew I wanted to be a lawyer, with- about a chance which perfectly coincided with what out knowing what this actually meant. It was always I loved doing. Therefore, irrespective of the number my goal and eventually I was lucky, mostly because of hours spent at the office, it is a profession that I I ended up in the right place. As for my preference would by no means want to change. for dispute resolution, the truth is that if I had been Lawyr.it: Reflecting on your legal career, which asked the same question while being a student, I case do you believe to be the most representative for would have answered that I was attracted to Crimi- you and your experiences, and why? nal Law. However, at the moment, I wouldn’t like, under any circumstances, to be a practitioner in the CV: I cannot name a representative case and this is criminal field. I can say that I had the chance to be a mainly because business law does not necessarily part of a firm whose profile matched the right pro- interfere with one’s personality or emotions. Indeed, being a litigator brings you a certain satisfaction file for me. every time you win, but you cannot say some cases Lawyr.it: Which are the challenges you have to face bring you a higher degree of satisfaction than othon a daily basis as a partner within Zamfirescu ers. Racoti & Partners?
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Lawyr.it: Switching to specific legal aspects you deal with on a day by day basis, how would you appreciate the future impact of mediation, a world-wide as well as nationally recognised institution, especially having in mind the latest amendments made to the Romanian legislation?
even when students are not interested in them.
CV: I have come across the institution of mediation and I have endorsed it from the point of view of a lawyer. Mediation is both necessary and useful, thus it must have a future. However, in the short and medium term, I cannot exactly foresee its future in Romania, not out of reasons regarding the regulation, but out of reasons that shall blur out with the passage of time: at some point, people will start having a better legal culture and knowledge of regulation and will experience a shift in mentality, which I believe are premises for the success of mediation. There may be a tendency to believe that mediation will have an immediate internal impact, however, I would rather be inclined to believe that a visible change will only be achieved in time - I would say, within approximately five years.
CV: I encourage students who want to embrace attorneyship to do so. However, they have to really want to practice it, to know very well what it involves, how demanding and difficult it can be compared to other jobs. By this, I mean the time spent, the stress and the level of involvement required. Every person should choose according to his or her passions, trying to benefit as much as possible from the choice he or she made.
Lawyr.it: Going back in time to the moment when you started your legal career, what was your first impression about what it meant to be a lawyer? CV: Actually, in the beginning, I knew nothing about being an attorney and about life in law firms, so I cannot say that I had any type of expectations. Without being spectacular, attorneyship was an area which I liked both as work and rhythm of life. My situation was more unusual than that of most young graduates in the employment threshold, meaning that I did not know anything about this domain when I accepted this ’challenge’.
“Without being spectacular, attorneyship was an area which I liked both as work and rhythm of life.”
Lawyr.it: Would you encourage young attorneys to follow a career in the fields that you embraced? Which would be the advantages/disadvantages of such a choice?
One of the major problems that I see nowadays is the fact that students graduate with a lack of legal knowledge. Constantly, there are new job offers from law firms, but in order to benefit from those opportunities you must have a certain degree of knowledge and competence. Statistics have shown that more than 80% of law graduates annually, at a national level, are not prepared to enter the legal market or to practice law. If I were to give an advice for law students, it would be to try to learn as much as possible during their studies. Lawyr.it: For our readers who would like to work for the law firm you do, which would be the requirements for junior attorneys? CV: They must successfully pass a professional exam, which is the decisive requirement. Also, they should have proficient English knowledge and also pass a psychological test. The latter is only a prerequisite, not a differentiation criterion between candidates. Lawyr.it: Do you agree with the saying that the recipe for success consists of 99% work and 1% talent? Would you add any another ingredient?
CV: No, I don’t believe in it per se. I would change it a bit, though, saying that success means 90% work, 1% talent and a few grams of luck, because without luck Now things have changed a lot, considering that law no one could build a real, strong a career. firms are more present in the academic sphere through different activities they develop and because of the expansion of social media channels. Thus, they get to be known by today’s students and tomorrow’s graduates, 24
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The Ideal Candidate: What Employers are Looking for in a Trainee
Finding the ideal job can be
3. Be responsible. Try to treat everything with professionalism. Everyone makes mistakes, but difficult for a young graduate. only some people know how to deal with them. The lack of professional expeIf you do something wrong, don’t hide it. It may rience can represent a real barcause bigger damage if it is not discovered in rier in starting a career. Even time. Also, don’t try to blame someone else. Acif you have gained some expecept your mistake, think about what caused it, rience throughout your acatry to learn how to avoid it in the future and, demic years, starting to work if possible, fix it. Be aware that even if you are for another employer is not so a trainee, your actions still have consequences. easy. So how can you become the ideal candidate? What are 4. Be able to work in a team. No one says that it is inherently wrong to be a lonely wolf but recruiters expecting from you? nowadays, especially if you chose a legal career, Certainly, every employer has his/her own needs you are often forced to collaborate with differrelated to his/her field of activity, the size of his/her ent people. This happens not only because of business, and, of course, to his/her working style. the size and the complexity of certain projects, But in general, there are some common attributes but also to obtain the best results. Working in a that most employers are looking for: team means accepting others’ opinions and being able to express yours efficiently. 1. Be willing to learn. Every job starts with an induction. For you, the purpose of a training 5. Have your own professional goals. This shows should be learning as much as possible. Since you want to progress, to be better in your job, no employer wants his/her trainee to remain a which is a signal that you will learn and try to novice forever, his/her objective will be to teach accomplish your tasks as well as you can. Furyou how to do your job in order to be a great thermore, a person having his/her own profesemployee. As soon as you are able to apply what sional goals will be creative and will try to exyou have been taught or shown, you are a step ceed his/her limits, being ready to assume new closer to becoming efficient in the way you fuland challenging responsibilities. fill your tasks. 2. Be efficient. This aspect firstly implies having By Ioana Baraian good time management skills. No one wants an employee who finishes his/her tasks after This article was originally published by Ioana as a the deadline. If there is a deadline, it means the guest blogger for the TopTierLawyers.com career project is needed by that time, not afterwards. section. At the same time, being efficient means performing your tasks properly even in a critical situation. For instance, no one wants to have a trainee who panics when a deadline has been changed, instead of reorganizing his/her time and priorities. Remember, if you panic when you are under pressure, your chances of doing a good job and impressing your employer will decrease. 25
INTERNATIONAL FOCUS
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INTERNATIONAL FOCUS The claims control clause within international sea transport contracts
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the globalised society we live in nowadays, where international business relationships are established at a fast pace, merchants who wish to develop their business in the area, as well as law practitioners, must be particularly familiarised with international transactions. Among the various types of contracts concluded in international commerce, in this paper I would like to focus on the international sea transport contract, and especially upon the claims control clause inserted within, which can provide consistent support in settling lawsuits. When concluding an international sales agreement referring to the sea transport of the merchandise, the business partners aim at achieving certain goals, which are the delivery and the receipt of the contracted goods, on one hand, and the full payment of the price on the other hand. These purposes impose on the parties the strict completion of the assumed obligations and the respect of the laws in effect, in order to create the framework for the execution of the contract under best circumstances. In this respect, several mandatory clauses are enforced, referring to quality, quantity, packing, marking, price, delivery, insurance, means of transportation, terms of payment, reception, contingency, arbitration, cancellation and penalties. In today’s complex international sea transport framework, the transfer of merchandise implies much more than the transfer of goods from the production site to the end user. Regular international conferences attended by cargo liner companies are held, where they establish the freight rate (the price that must be paid to the forwarder for the transport and for the dispatch of the merchandise under best circumstances) for the liners, i.e. ships designed to 28
cover maritime routes according to a schedule. There are also the ships for the irregular routes that can be chartered for the carriage of various goods, bearing the name of irregular hauls. The ship owner and the shipper (the charterer) can conclude a contract for the chartering of the ship. This written agreement between the ship owner and the charterer is called a charter party, by means of which the ship owner agrees to rent the ship to the charterer, in exchange for the payment of the freight for the goods to be transported. As far as the accompanying documentation is concerned, some of the documents have a general character, no matter the carriage type (for example invoices, packing lists, origin and quality certificates), whereas others are specific to certain transport methods (consignment notes, bills of lading, etc.). The bill of lading, which also contains the claims control clause, stands as a proof for the freight contract and at the same time it represents a legal document - the title to the goods. Although commercial practice is strictly legislated in international sea transport, a series of issues can arise at any moment, representing the main cause for the initiation and file-up of complaints. That is why, whenever a breach of contract occurs, either party can appeal to the claims control clause inserted within. This clause envisages exactly the procedural aspects that must be followed, the parties’ rights and obligations regarding the claimed goods, the documentation that must accompany the complaint, and it stipulates at the same time the legal time span allowed for filing the claim (Chiriacescu, 1994). The claims control clause appears mostly in reassurance policies where the cedant has retained little or no risk. Since it often happens for the insured and the cedant to find themselves in a foreign jurisdiction, the reinsurers, who ultimately have to pay for almost all of any valid claim under the policy, wish to ensure that they have full control (Chadbourne and Parke LLP, 2010).
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In international sea transport contracts, in the case of a quality issue, like a fault in merchandise for example, all claims must be drafted in written form and must include the contract number, indication of the goods, the claimed quantity, the number and the date of the transport document, as well as the substantiation of the claim and the compensation demanded by the buyer. The complaint must also be accompanied by certifying documents, i.e. deeds to acknowledge the claimed shortage or faults, imputable to the responsible party, countersigned by the seller’s representative or, in his/her absence, by a duly commissioned neutral control authority (Chiriacescu, 1994). The buyer making the claim must store the concerned goods and cannot deduct part of their total value as a compensation for his/her loss. The complaint must be submitted as follows: within thirty days in case of quantity shortages and seeming faults in the merchandise, counted from the ship’s arrival at the destination port, or forty-five days from the delivery date; within 180 days for hidden faults, counted from the ship’s arrival at the destination port, or 210 days from the delivery date. The seller will have to notify the buyer in writing within sixty days from the receipt of the complaint regarding the grounds for the invoked fault (Chiriacescu, 1994). If the seller accepts the claim, the fault will be rectified, either by replacing the goods or by indemnifying the buyer. However, since each shipment is considered to be an independent sale, claims upon one shipment will not entitle the buyer to disregard his/her contractual liabilities regarding other consignments.
based on the argument that the bill of lading stipulated the enforcement of the Ordinance’s provisions. The ruling applied to goods understood as ‘goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried’ (Pacific Islands Legal Information Institute, 2010), thus limiting the liability of the forwarder. The plaintiff further appealed the decision, grounding that the lower court should have given a stricter interpretation to the law. The Appeal Court upheld the decision, agreeing that the Ordinance did not apply to the goods because of the stamped clause on the bill of lading. The clause was an express stipulation in the contract which effectively altered the liability of the carrier (Pacific Islands Legal Information Institute, 2010). In conclusion, I would state that modern maritime carriage commerce is unconceivable without the insertion of the claims control clause within international sea transport contracts. The complaint must be settled by appealing to communication and in compliance with the contractual previsions and the commercial regulations in force, so as to prevent the contract cancellation. This is where the claims control clause pitches in. It can be activated at any moment, thus protecting the parties involved against all risks, since they are both interested in executing the contract. By Oana Vaivoda
To consider an example, in the Burns Philp (South Seas) Company Ltd. v. Marine Pacific Ltd. case-law, in 1979, the cargo was supposed to be shipped from Suva to Labasa. Having been carried on the deck of a barge which was damaged during the voyage, the cargo was lost. A clause subjected to the ‘Sea Carriage of Goods Ordinance’ was inserted in the bill of lading, stating that all goods shipped as deck cargo were to be carried at owner’s risk (Pacific Islands Legal Information Institute, 2010). The plaintiff appealed to the claims clause, highlighting the defendant’s breach of the contractual duty to properly secure and deliver the cargo. In return, the defendant denied the complaint. The Court’s decision was to dismiss the plaintiff ’s claim, 29
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INTERNATIONAL FOCUS The importance of a trademark for a company
As a result of globalisation,
the market has been congested with several similar products over the last few years, which is prone to causing confusion among customers. One way to differentiate all these goods and to know who the producers are consists in applying a distinctive sign on each and every product called a trademark. The aim of this paper is to emphasize the importance of a trademark for a company due to its value on one hand and due to its functions on the other hand. In fact, registering a trademark does more than offering the owner the possibility to differentiate its own assets from other similar goods. It can also be an effective way of advertising or certifying quality. Because of its importance, a trademark has managed to become a disembodied asset on its own.
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is based mainly on advertising. Thus, an irrelevant sign becomes an intangible good with an inherent value. For instance, in 1924, the trademark ‘Dodge’ was assessed at 74 million USD, whereas the entire company was appraised at 146 million USD. Therefore, the trademark was worth slightly half over the value of the entire company (Eminescu, 1983). Another relevant example is represented by trademarks such as Coca-Cola, Pepsi-Cola, Marlboro, Nescafe, Camel, their value in 1992 being assessed between 4 and 40 million USD (Roş, Spineanu-Matei and Bogdan, 2003).
Definition and value
According to some recent studies carried out by Interbrand in 2011 and Millward Brown Optimor in 2012, the trademarks’ value became even more obvious recently. In 2011, Coca-Cola was rated as the most ‘expensive’ brand, with a value of almost 72 billion USD, followed by IBM (69.905 billion USD) and Microsoft (59.087 billion USD). In 2012, due to technology development, the value of trademarks boosted even more, thus the most onerous brand was ‘Apple’, with a value of 182.951 billion USD.
The trademark can be defined as a distinctive sign that allows its owner (usually a company) and helps, at the same time, the customers to identify the products or services of a company and to differentiate them from the products or services of a competitor (Roş, Spineanu-Matei and Bogdan, 2003). Even though, in its initial stages, a trademark was used to help customers to identify the producer of different belongings (for instance, in antiquity a specific sign used to be applied on pottery), nowadays it became a tool used to identify strictly the products (Eminescu, 1983).
Therefore, as the statistics presented above point out, a trademark or a brand has an inherent value that cannot be neglected, which leads to a conspicuous conclusion that a trademark represents one of the most valuable assets that a company has. Moreover, according to Article 7 from the Paris Convention for the Protection of Industrial Property of March 20, 1883, the principle of independence of a trademark, irrespective of its object, is emphasized even more. It is thus highlighted once again that a trademark is a distinct asset, not only a sign applied on other belongings.
First of all, the importance of a trademark is determined by its impressive value. We can all ask the same question: how is it possible for an apparently insignificant sign/mark/symbol, which is applied on different products, to have value in itself? The answer is due to the late development of commerce, which
The functions of a trademark Besides its impressive value, a trademark is important for its functions as well. Therefore, a ‘brand’ not only helps a customer identify the products or the services of a company, but it can also be an efficient
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tool to create competition, to certify quality or even a Another essential function is represented by the qualway to protect the consumers. ity securement of the products or services provided by a company. Thus, if the customer has been accusThe first, and one of the most important, roles that a tomed to a certain quality, should the company not trademark plays, is to differentiate similar products or respect the standard, this could result in damage bore services of various companies. This function is linked by consumers. The penalty in this case does not come to the distinctive feature that a trademark has, distinc- from the coercive power of the state, but from the tiveness which allows the customers to easily recog- consumers themselves. Therefore, the customers can nise a product or a service. However, the more distinc- renounce at the products or services they used before, tive a trademark is, the more risky it gets to confuse and as an immediate consequence, the company will the trademark with the product/service in itself. For suffer the loss. This function is not a juridical one, instance, the brand ‘Adidas’ became a common word but a social function void of juridical penalty (Roş, used to describe sport shoes, or ‘Xerox’ does not refer Spineanu-Matei and Bogdan, 2003). As a conspicuous only to the company which produces devices used to result, a trademark can play the role of protection for print or copy documents, but to the activity of photo- the consumers. Besides the sanction presented above, copying itself. In this situation, according to Roma- the customer can always use civil liability provisions. nian law (Law 84/1998, Article 46 paragraph (1) letter b), the owner of a trademark can be decayed from the Last, but not least, the trademark also plays an imrights a trademark offers. portant role in advertising. This function is helpful, on one hand, because, by leveraging a trademark, the Regarding the fact that the entire activity of a com- products or services are being easily promoted, and, pany is based on a mechanism of clientele attraction, on the other hand, because it detaches from the proda trademark can create competition between different uct it is applied upon becoming a distinct asset with companies. The main drawback in this case is deter- inherent value (Eminescu, 1983). mined by unfair competition. One manner to generate unfair competition is represented by deliberately To conclude, I strongly believe that nowadays, due to creation confusion by another company, in order to technology development and excessive advertising, a attract the customers. The most common procedure ‘brand’ is an asset far more precious than many other to create confusion between two brands is to counter- belongings that a company owns. Therefore, a tradefeit one of them (with a simple Google search you can mark has an outstanding importance, from a double easily find trademarks like Dolce & Banana instead of perspective. Firstly, it can acquire an impressive value Dolce & Gabbana, Abidas instead of Adidas or Cold- that cannot be overlooked, and secondly, it possesses date instead of Colgate). According to the EU Direc- several essential functions, which are strictly linked to tive 2008/95/CE, in this case, one of the trademarks a company’s welfare. can be affected by nullity. However, when registering a trademark, someone has to take into consideration the specialty principle that characterises a trademark, By Nonu Puscariu a principle which allows a person to register the same trademark, but for a different service or product. Therefore, a trademark is protected only in a certain field, not for every product/service, except for the notorious trademarks which offer protection in any field and no registration is required. (Vivant, et al., 2004). Another type of unfair competition is to spread out accusatory allegations about a competitor’s trademark in order to affect his/her reputation. This type of unfair competition is also known as disparagement (Roş, Spineanu-Matei and Bogdan, 2003). 31
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INTERNATIONAL FOCUS A walk towards a European Code of Civil Procedure
This paper aims at analysing
65 of the Community Treaty.
Since then, more actions have been taken at a European level to harmonise private law fields, substantively and procedurally alike. Worth mentioning are: a draft of European Tort Law, published by the European Group of Tort Law (C.C. van Dam, 2006), Directive 1999/34/EC concerning liability for defective products (amending Directive 85/374/EEC), Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis), Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III), and a Green Paper from the ‘Commission on policy options for progress towards a European Contract Law for consumers The purpose of the present article is to give an in- and businesses’. In search for a common European sight into the complexity of the issue in question, private law, Regulation No 1215/2012 was set to be balancing results, prospects, and insurmountable applied in member states starting January 10, 2015. obstacles. The conclusion will help shed some light It reformed the Brussels Regulation No 44/2001 on on the future direction towards which the European jurisdiction and the recognition and enforcement of procedural civil law is moving. judgments in civil and commercial matters, bringing significant changes related to the rules on jurisdicA desirable European Code of Civil Procedure tion agreements, recognition, and enforcement of The first major argument for the enactment of a member states’ judgments in other member states, common Code of Civil Procedure is the need for arbitration and rules concerning third parties. certain, quick, and reliable procedures established in cross-border implications (Mathijsen, 2004), es- The importance of enabling harmonised procesential for the well-functioning of the internal mar- dural rules is reflected in the field of patent law (Jaket. Such codification aims at consolidating an ‘area cob, 1998). Previous to the Brussels I Convention, of freedom, security and justice’ (Article 61 (c) of a person could have obtained a patent, a copyright, the EC Treaty). A set of norms to control rules of or a trademark only for a particular country, since litigation between countries and to introduce an ex- property laws were regulated on a territorial basis. penditure procedure to secure the enforcement of In a nutshell, each country had its own structure, its judgments was introduced by the Brussels I Conven- own patent office, and own legal system. In case a tion (1968). The Maastricht Treaty opened the door cross-border infringement occurred, the patent had for intergovernmental cooperation (Freudenthal, to be enforced in every country, in accordance with 2003). However, it was only with the entry into force each state’s law (Jacob, 1998). The process was time of the Amsterdam Treaty that such judicial coopera- consuming and implied high costs, creating a lack of tion in civil matters found its legal ground in Article stability and predictability. the feasibility of enacting a European Code of Civil Procedure. Since 1968, with the Brussels I Convention on jurisdiction and the enforcement of judgements in civil and commercial matters, actions have been taken towards creating uniform procedural norms to be integrated into national laws. The call for ius commune generated diverse reactions (C.C van Dam, 2006). Some believe in the attainment of the goal, while others see it as an utopia, asking whether an European Code of Civil Procedure is even desirable.
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A solution was proposed: harmonising substantive of reasoning, convergence is not feasible due to the patentability rules and establishing a more effective different organisation of lay participation (GroothenEuropean Patent Convention. The aim was partially huis, 2003). fulfilled: Against a European Civil Code stand the states’ fears On one hand it led to the establishment of the Europe- of the unknown and of losing too much of their sovan Patent Office in 1973. From that point on, in case ereignty. The ius commune is nothing more than an an application succeeded, the patent granted was to attack on cultural identity and pluralism, a state riskbe accepted by each designated country. However, this ing, thus, the diminution of its particularity (Legrand, did not imply an absolute European right per se. Still, 1997). In such a context, the following question needs each identical patent was to fall within the jurisdiction to be addressed: ‘Is a European Code of Civil Proceof its own national law as concerning validity and in- dure even desirable?’ fringement procedures (Sheraton and Gilbert, 1999). Conclusion On the other hand, the plan to set a Common Court to solve procedural aspects regarding patentability The idea of a common set of civil procedural norms is failed because setting a pan-European framework for part of the European Union’s primary goal set since its judicial cooperation could entitle the European Court foundation - the establishment of a single, common a competency to judge only on appeal, leaving it to the market. Looking reality in the face, there is no cernational states to decide the matter on first instance tainty as to whether a European Code of Civil Proce(Jacob, 1998). Difficulties were encountered with an dure will ever be enacted. Or, in the affirmative case, action admissible in one country was found inadmis- whether it will do good or bad. sible in another (Improver v Remington (1990) FSR We should aim for a balance between the need to have 181). Coping with all the discrepancies within the na- a solid, uniform mechanism of dispute resolution and tional procedural systems proved too ambitious. the need to preserve the member states’ self-identity, history, language, and legal culture. As Nietzsche statDissenting opinions ed, ‘handle deep problems like cold baths: quickly into As Pierre Legrand stated, implementing a rule from a them and quickly out of them’ (Legrand, 1997, p.44 ). different legal system and expecting it to work in the So, should we give up on pan-European procedural same way would be foolish. There is no such thing as integration or should we stay in the water, even if cold, a legal transplant. Legrand is one of the few authors adjust, and see how far can we keep going for the sake who dared to advocate against harmonisation and of fair and common justice? against a ius commune. In a context where the law of civil procedure is so closely connected with the forum state, with its own culture, history, and traditions, By Cristina Brad there is no room left for harmonisation (Freudenthal, 2003). Insurmountable obstacles are seen in the distinct nature of the continental and the common law traditions. Continental law is more inclined towards the inquisitorial system, as opposed to the adversarial nature of the common law system. At the same time, a deductive line of reasoning governs the former with codified rules being enacted prior to the practices that follow. By contrast, precedents govern the common law system by, revealing reluctance to rigid, codified norms (Legrand, 1997). Moreover, following such line 33
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INTERNATIONAL FOCUS Cybersquatting and legal controversies arising from domain name registration
Does the mere fact of be-
solete model, more restrictive in nature, conditioned the registration of a domain name on the prerequiing Eva Longoria, Microsoft or site that the registrant proved two aspects: his entieven Lego for that matter, enti- tlement to a right over what he/she wants to register, tle you to exclusive possession and the fact that this registration does not infringe of the internet domain name upon a right or a legitimate interest of a third party. equivalent to your name? Over the past years, the number of However, this protective system soon became a hinregistration requests regarding drance against the ever-expanding online world. domain names has known an Consequently, it was progressively phased out in the exponential escalation. This, in benefit of a modern system, with an entirely renewed turn, poses sensitive problems approach, based on the ’first come, first served’ prinregarding intellectual property infringement and ciple. In this newer model, anyone is free to register conflicting purported rights over what had been any domain name they please, with no prior burden registered. A proper understanding of the issue im- of proof. However, pursuant to the registration, an plies the understanding of the following aspects: (1) accreditation agreement is concluded with the regiswhat is a domain name; (2) what is a trademark; (3) trar, including the registrant’s pledge to abide by the how legal controversies arise in this field; and (4) terms and conditions of the UDPR. In fact, the main which are the criteria employed in their resolution. consequence of the agreement is a prior consent to defer any controversy arisen from a domain name First and foremost, a domain name must be un- registration to the World Intellectual Property Orderstood as a user-friendly form of an Internet ad- ganization Arbitration and Mediation Center. dress that is easily identifiable and easily memorable (WIPO Arbitration and Mediation Center, 2013). After having established the premises of domain The exclusive right of usage over a domain name name registration, the next point of analysis will focan only be acquired through a multiple-step reg- cus on the legal problems registration may pose. In istration process. The latter is carried out by a reg- plain words, a legal controversy is bound to emerge istrar, a national administrative entity accredited by each time a person registers a domain name which the Internet Corporation for Assigned Names and conflicts with a trademark, an industrial property right, another domain name, or any other similar Numbers (ICANN). right or legitimate interest of another person. ICANN plays a key role in this field, withholding two core prerogatives: (1) it is the owner of a central With regard to this situation, the term ’cybersquatdatabase which contains all the registered domain ting’ has been coined over the recent years to define names, thus preventing the registration of the same the situation of pre-emptive, bad faith registration domain name twice; and (2) it is the adoptive en- of trademarks as domain names, by third parties tity of the Uniform Domain Name Dispute Resolu- who withhold no right whatsoever over that name. tion Policy (UDPR). This policy comprises a set of What cybersquatters essentially do is take advantage norms regulating dispute resolution over domain of the first come, first served nature of the registration process, in order to register domain names as name registration. popular trademarks, famous people’s names or any Over the history of domain names, two core models other business names with various purposes such as: of registration have emerged. The first and now ob- the intention to exchange the rights over the regis34
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tered domain to the person entitled to possess it for a the notion of ‘legitimate interest’, the Center estabdisproportionate sum or to attract web traffic to their lished in its previous rulings that, once the complainsites at the expense of famous people’s reputation. ant alleges a prima facie case suggesting the lack of a right or interest of the Respondent, the burden of All things considered, for the purpose of solving dis- proof shifts to the latter, who can still prove his right putes in this field, the arbitration procedure regulated or legitimate interest in one of the following cases: (1) by the UDPR provides a series of undeniable advan- before any notice of a dispute the respondent used or tages. (1) It is time and cost-effective compared to has prepared to use the domain name in relation with court proceedings; (2) it concludes with a binding an activity conducted in good faith; (2) the respondjudgment, equally enforceable as a judicial sentence; ent or their business have been currently known by (3) it defers the controversy to arbiters with superior the name in question in spite of the lack of ownership expertise in the area of internet law and international of the mark; (3) the respondent is making a legitimate, intellectual property law compared to ordinary judg- non commercial use of the domain name, with no ines; and (4) the Center’s dispute resolution system is tent to make profit at the expense of third party repuso exhaustively regulated, that any incident that may tation, or divert its consumers. incur within the proceedings already benefits from a provision, therefore no room is left for doubt or delays Last but not least, bad faith can be proven by a series (Evans, 2006). of circumstances such as: making an offer to sell the domain name to the one entitled to have it, or its busiIn brief, the procedure against the Center is based on ness competitors, or the use of the domain name to the meeting of three core UDPR criteria. In order to manage an activity similar to the complainant. have a ruling in their favour, the complainants must prove the following: (1) the identical/similar/confus- To draw a conclusion, despite the considerable libering nature of the late registration; (2) the fact that the alisation of the registration process of a domain name, registrant has no rights/legitimate interests over the the ’first come, first served’ principle does still not domain; and (3) the bad faith of the registrant (UDRP, serve as a universal excuse and it does not open the paragraph 4(a)). gates of abuse. A few of the terms employed, apparently vague as to their meaning, have been subsequently crystallized through case law. A trademark is a notion encompassing any sign, design, word or combination of words susceptible of graphic representation, which enables a differentiation within the market between the goods and products of a certain producer and those of other producers. (Forner Delaygua, Garriga Suau, Parra Rodriguez, 2006).
There still remains a solid international framework providing a safeguard for a person’s right to their name, to a trademark, to industrial property rights or any other previously registered domain name. For that matter, the simple fact that, over the past 30 years, one has been carrying out a worldwide renowned activity as a singer under the name of Madonna, entitles them to save a domain registered with the same name from the hands of a third party who, in bad will, would use it to target fans, distribute porn, or promote any As to the concept ’confusingly similar to a trade- other type of content at the expense of that person’s mark‘, the typosquatting practice comes to the fore. reputation. This term is used to denominate the practice of taking advantage from the common typing errors made by internet users when writing a website address into a By Andrada Rusan browser, in order to register domain names confused for mark and attract users onto their own pages (famous examples include: wikipeda.org, which hosted an imitation of wikipedia.org redirecting users to spam, or arifrance.com, targeting airfrance.com’s users to a discount travel peddling website). Regarding 35
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DEVIL’S ADVOCATE Should civil partnerships be recognized at an European level? This issue’s advocates PROS: Dr. Frederik Swennen Dr. Frederik Swennen is a professor and chair in the Law of Persons & Family Law at the University of Antwerp. He teaches Persons & Family Law at a BA level, and the Advanced Course in Family Law, International & Comparative Law and Family Proceedings at an MA level. He currently also is the research leader of the Personal Rights & Property Rights research group. His research topics and projects mainly concern family governance and atypical families. He provides services in diverse associations and editorial boards and in several civil society organisations. At the same time, he is an of-counsel in the law firm Greenille.
CONS: Andrada Florea Andrada is a last year law student at Babeş Bolyai University and a graduate of the Political Science, holding a Bachelor Degree. She believes that if something is worth doing, then it should be done right. She joined Lawyr.it as a Junior Editor because she believed that the platform stands as a generator of potential, being the perfect framework for students to prove their best. She took this opportunity herself by taking part in our debate. An advocate of equal chances and fairness and a militant of human rights, Andrada is involved in various NGOs and Law associations, being in the pursuit of an international legal career.
Debate Foreword It seems that more and more European states take a stance regarding the civil status of homo-sexual couples. A few months ago France adopted a law opening ‘marriage pour tous’. Belgium is one of the member states with the most liberal approach to the matter. However, even though the issue of gay marriage is gaining momentum, there is no consensus in Europe with regards to which form of civil union should be recognised for the couples in question. We be-lieve that a debate on the subject of civil partnerships would prove interesting to our readers, both from a legal and a social point of view. Most often than not proponents of civil partnerships argue that there must be some sort of recognition and they resort to civil partnerships. Our guest, Mr. Swennen takes the debate further analysing why this form of civil recognition is most suitable. Andrada has prepared a complex case against the motion. She first argues against the recognition of civil partnerships. Then she points out why this would not be suitable at a European level. We hope our readers will enjoy this top-notch debate! 38
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Opening Remarks Dr. Frederik Swennen: This debate encompasses two aspects: (1) a European-driven recognition on the national level and (2) private international law recognition. I will develop those two aspects subsequently and then link them. 1. Several European developments call for a national recognition of civil partnerships A sequence of biotechnological, economic and demographic evolutions has resulted in civil marriage not being the exclusively used family form any more. These evolutions have urged for the legal recognition of other family forms, as imposed by the ECtHR (Marckx v.Belgium, 1979). The ECtHR has first departed from the paradigm that only children born in wedlock are legitimate children. The protection of children born out of wedlock, and the subsequent uncou-pling of marriage and filiation, has then reversely raised the question of the protection of childless couples, e.g. same-sex couples. In 2010, the ECtHR has recognized that ‘the relationship of a cohabiting same-sex couple living in a stable factual partnership falls within the notion of family life’ (Schalk&Kopf v Austria, paragraph 94, 2010). ‘Samesex couples are just as capable as different-sex couples of entering into stable committed relationships [and thus] are in a relevantly similar situation […] as regards their need for legal recognition and protection of their relationship’ (paragraph 99). It seems to me that a [same-sex] couple is all the more worthy of protection of their relation in case they jointly raise children, for the rationale of marriage would then apply. A comparable human rights protection applies in the context of the EU since the proclamation of the Charter of Fundamental Rights. However, the ECtHR has not yet addressed the question of whether the lack of alternative legal recognition of same-sex couples would constitute a violation of the Convention in case different-sex couples dispose of no alternative legal recognition either (comp.
Andrada Florea: The European Union has most often been defined as the family of democratic European countries, committed to working together for peace and prosperity, being neither a State intended to replace existing states, nor just an international organisation. If we were to critically analyse the aforementioned statement through the lens of various issues that are to be decimated in the expectancy of their implementation, as it is the case of the registered partnerships, one could wonder whether EU is really a family or the romanticism has been taken a bit too far. As the socio-psychological prerequisites for a sustainable, supranational EU may not be in place, the distorted image of European citizenry relies on the flawed assumption that there exists a demos (a united people). What best reflects the misconception with regards to the issue at stake is the huge wave of protests against Article 40 of the Stockholm Program. People fiercely argue that no policy with concern to the mutual recognition of the effects of civil status documents issued by national administrations should affect in any way the competency of the member states to legislate on family matters. The arguments against the legalisation of civil partnerships are two-fold: On one hand, defending the natural procreative function of marriage. On the other, pointing out the discrimination generated against the homosexuals by offering them a lower degree of recognition. In what the first category is concerned, it has been pointed out that civil partnerships are the outcome of the pro-homosexual lobbyists’ cunning strategy of employing cross-border harmonisation, which requires the EU members to recognise its laws in all member states. The purpose of Article 40 is to impose on EU members a factual recognition of same-sex marriage, through a back door. It severely violates a basic founding principle of the European Union, namely the principle of subsidiarity. Each member state’s definition of marriage will shift from family law - which is an exclusive competence of the member states - to procedural
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DEVIL’S ADVOCATE Gas & Dubois v France and X v Austria with regard to adoption). In my opinion, it would. I believe national legislators would only be exempt from explicitly protecting same-sex relations in case they would explicitly prohibit homosexual relations or same-sex cohabiting. However, such prohibitions would be blatantly inconsistent with human rights protection. In sum, in view of the instrumental, descriptive function of law, protection should be granted to an existing social reality, even if a majority of the population disapproves of it. 2. The free movement of persons is a fundament of the EU The EU-legislator is competent to eliminate obstacles to the free movement, for instance by adopting measures for the approximation of family laws of the Member States in case there are cross-border implications. The EU must therefore be considered competent to develop private international law instruments that guarantee continuity of one’s civil status throughout the EU. A same-sex couple that uses its right to free movement should also be awarded such protection. There has been much scholarly debate whether a country could refuse such protection by referring to its international public order exception. Under such exception, foreign legal institutions or situations that are blatantly inconsistent with the national public order must not be recognised (e.g. polygamous marriages, surrogacy agreements,). The application of such exception is, however, subject to an assessment on a case-by-case basis. It seems to me that the mere recognition of the foreign civil status of a same-sex couple would not endanger the national public order, as it would not force the recognising State to introduce a comparable civil status in its national law. However, should the doctrine of reverse discrimination be applied, a State that would recognise same-sexcouples after free movement (2) would also be obliged soon to recognise same-sex couples that made no use of that right (1).
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law (mutual recognition of civil law documents). Consequently, member states would be compelled to indirectly recognise same-sex unions as equal to marriage even if such recognition does not exist in the respective country’s legal system. Article 12 of the ECHR clearly states that ‘the right to marry and the right to found a family shall be guaranteed in accordance with the national laws’. The fact that the wording of the Article neither prohibits nor imposes the granting of the status of marriage to unions between same-sex individuals highlights the importance the mentality in a given society has upon the legalisation of the issue at hand. Family and marriage, with all their varieties, are about something deeper than civil equality; they are about a natural reality, the union between a male and a female with the purpose of procreation. As the aim of legitimising sexual intercourse bears significance also from a religious point of view, same-sex unions almost certainly guarantee the infringement of the religious beliefs of people in faith. Moreover, the legalisation of civil unions would lead to the promotion of motherless or fatherless homes, and this may not be in the best interest of the children. The cornerstones of the second set of arguments lay both in the legally binding character of the Stockholm program, if implemented, and in the provisions of Article 14 of the ECHR, which prohibits any discrimination based on grounds of sexual orientation. The coexistence of these acts clearly points out the fact that assigning same-sex couples to a status other than marriage, maintaining a separate legal status for a minority, rather than treating everybody the same, breaks the promise of equality. Therefore, the advocates of homosexual unions should bear in mind the following question: are they really willing to settle for an Orwellian Union where all Europeans are equal, but some Europeans are more equal than others? Marriage matters; otherwise it would not be denied. The romanticism of creating a demos in a European union seems deemed to failure, especially since the attempt of implementation comes from above. Concepts such as ‘justice’ or ‘equity’ are meaningless unless embraced by a given society. As it has been pertinently pointed out, Europeans shall be forever united in their differences.
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Rebuttal Moderator’s Note: Our guests had the chance to reflect upon the opening statements of their counterparts. This second stage of the debate comprises the rebuttals submitted by each of them, in response to the arguments that were put forward. Our guests have taken various factors into account while maintaining their position. This is to say that in the next lines you will have the chance to read more on the legal, social and European implications of the issue at hand, and we are looking forward to reading your opinion about it. Dr. Frederik Swennen: The argumentation against Andrada Florea: The aforementioned uniqueness that characterizes each member state is embodied in the the legalisation of civil unions is threefold. framework of human rights protection; not being alike First, the democratic legitimisation of a legislative ini- denies, on one hand, any claim of a European federtiative at the EU-level is questioned. This argument alism and ensures, on the other hand, great achieveis flawed by over generalisation, for it questions the ments, best encompassed by the mere definition of legitimacy of the EU in general. That being said, the democracy: the rule of the majority with the respect of principle of mutual recognition of the civil status, with the minority - and not vice versa, as the advocates of a view of safeguarding the free movement of persons, minorities may claim. in no respect violates the principle of subsidiarity, for it does not infringe upon the national competence in When approaching the very subject of registered partthe field of family law. Recognition of foreign legal nerships, what should be understood from the beinstitutions or situations indeed does not force States ginning is that the protection of family life does not to adapt their substantive law, except in the case that coincide with the legal recognition of the civil union. one would adhere to the doctrine of reverse discrimi- The juridical binder is infinitesimal when claiming the nation. Moreover, States may still refer to the public protection of family life, the Court stressing the sigorder exception. In application of the principle of sub- nificance of other indicators in the matter, such as the sidiarity, the EU has explicitly motivated the choice for duration of the cohabitation, the existence of children or whether the ones involved in a certain relationship regulations rather than directives. act as a family or not. The ECtHR has created therefore Second, the argumentation draws on the protection of an autonomous concept of family life, distinct from marriage, which is a slippery slope argument. A civ- the internal qualifications. This aimed at granting an il union is not a marriage, so that the recognition of effective protection of all relationships that may be same-sex civil unions does not equal the opening of circumscribed to the idea of family, even though they marriage to same-sex couples. Moreover, by no means do not benefit from a legal protection in the national does the creation of a civil union - or even same-sex arena. The Court indubitably recognises thus the homarriage - deprive heterosexual married couples of mosexuals’ right to family life, but neither does Artitheir current legal protection. Extension of protection cle 8 ensure any right of creating a family through any (to same-sex couples) is by no means a reduction (for variety of civil union, regardless of the homosexual or different-sex couples). The reference to natural law heterosexual nature of the relationship, nor does Artifurthermore is not relevant insofar as it would be con- cle 12 guarantee the same sex couples’ right to marry. sidered valid. It departs from the thesis that only civil On the contrary, the provisions of the latter, ‘Men and marriage regulates a different-sex couple’s procreating women […] have the right to marry and found a famability. This is not the case: children born out of wed- ily according to the national laws’, clearly point out two lock are granted equal protection. aspects: (1) the Court’s dedication to the traditional The other way round this issue is that the legalisation view upon marriage and (2) its refusal to interfere in of civil unions would not necessarily imply the recog- the member states’ competence of implementing the
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DEVIL’S ADVOCATE nition of gay parenthood. Finally, the reference to any conditions for its conclusion. Therefore, under no cirreligious meaning of civil marriage is not relevant, for cumstances is the ECtHR pledging for the recognition European States are secular States. of the homosexuals’ marital status in their country of residence. The third argument refers to the discriminatory nature of legalising civil unions rather than opening marriage The protection that the Court grants through its for same-sex couples. This argument is fault. It departs unique concept of family does not overlook the situfrom the thesis that equality means that same-sex cou- ation when children are involved either. However, the ples should have equal access to marriage compared claim that the legalisation of civil partnerships would to different-sex couples, so that the legalisation of civil consolidate the same sex couples’ right to adoption unions would constitute a ‘second class’ civil status. seems senseless, especially since the Court has explicitly pointed out in the very case of Gas and Dubois v This is not the case. Equality means that equal situa- France that the right at stake shall be granted only to tions should be treated equally and different situations married couples. differently. Whereas same-sex couples may be considered to be equally capable of forming a stable rela- No discrimination whatsoever with regard to the tion compared to different-sex couples, this does not same-sex couples’ right to family life is therefore ennecessarily have to result in the opening of marriage countered, despite the prohibition of a civil union, the (ECtHR, Schalk&Kopf v Austria, 2010). single distinction between the married couples, homosexual or not, and the unmarried ones being that, Also, in recent literature, civil unions are considered in what the former are concerned, a presumption of the comparably equal solution for same-sex couples family life hovers, while in the case of the latter this that marriage is for different-sex couples. However, has to be proven. This seems a legit proportional limithat thesis may be less defendable in cases where ei- tation, as its counterpart would be the infringement ther marriage has no consequences in the law of filia- of public morality, with regard to which the Court has tion or parenthood or same sex couples have access to firmly stated that it is to be interpreted in reference to parenthood. each and every national legal system. As cross-border harmonisation would most certainly prove ineffective, given the breach of the subsidiarity principle. The alternative solution offered by the freedom of movement of EU citizens does not promise any success either. The refusal of various European countries to legalise civil partnerships would be rather illusory, since same-sex couples could obviously resort to marriage-tourism and go to countries where such unions are recognised. Thus, these couples could obtain the long desired civil status, and then come back to their country of residence and demand that their union be acknowledged, From this point of view, the fact that the public order would be endangered by the ‘mere’ recognition of the foreign civil status of the same sex couples stands as obvious.
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Conclusion Moderator’s Note: I believe that our guests have taken this debate to a whole new level. It is up to you, our readers, to determine the winner, but, regardless of that, the purpose of this discussion was to spark more debates and to offer a basis for reflection, and I believe our participants achieved this goal. Do not hesitate to write your opinion on our platform, debate and become part of our community. The European recognition of civil unions is a twofold is- Having had the introspection in the dimension of the highly debated issue of civil partnerships, the romantisue. cism of a European family proves its limits once again. On the one hand, the question arises whether or not a Since no nationality-neutral tabula rasa is to be encounEuropean common core exists with regard to the protec- tered in the European arena that would allow a uniformly tion of civil unions in the national substantive laws. This implemented policy, each member state should intensely question is relevant under the ECHR and the Charter of weight the advantages and drawbacks that the legalisaFundamental Rights of the EU. The ECtHR has recog- tion of the registered partnerships shall bring about. nised in Schalk&Kopf v Austria, in its admissibility decision in Gas&Dubois v France and in X v Austria that a Firstly, this cross-border harmonisation that is to be imsame-sex household constitutes family life, both between posed obviously violates the principle of subsidiarity. the partners and between the partners and the children. Proponents of the legalisation avoid this aspect and they hide behind the over-claimed freedom of movement, Whereas States have a margin of appreciation with re- disregarding though the fact that the marriage tourgard to the timing and the extent of the protection of ism that would be generated would actually absorb any such households, it seems that they have a positive obli- power of decision that the state (as representative of the gation to guarantee such protection. This obligation does public will!) has ever had upon the issue. Article 9 of the not encompass an obligation to open marriage though. ECHR is also violated, given that it clearly stipulates that On the other hand, the question arises how the different the right to marry or found a family shall be granted in pace of protecting same-sex households should be coped accordance with the national law. with under the EU freedom of movement. Continuity of one’s civil status is an important aspect thereof. It is not disputed that the EU has no competence in the field of substantive family law. It has competence in the field of the private international law regulation of ‘cross-border families’, but it must apply the subsidiarity rule in that regard. Up untill now, the rule in these matters has been that Member States may limit the protection of civil unions to the applicable law in the host State and not the home State of the family concerned.
Secondly, the mere idea of marriage (with its varieties whatsoever) is going to be discredited along with any traditional values that have been embraced by the society up until this era of misunderstood evolution and overdemocratisation. Thirdly, the promotion of motherless or fatherless homes may not be in the best interest of the children. Lastly, not even homosexuals embrace the idea, since they claim that assigning same-sex couples to a status other than marriage breaks the promise of equality, placing them on an inferior position.
The EU thus respects the public policy concerns in States that have not yet recognised civil unions. This reasoning also seems in line with the ECtHR-case law that respects the timing of each State to protect same-sex unions.
Given all the aforementioned, any rational person would wonder what the purpose of legalising registered partnerships would be. As same-sex couples benefit from a protection of their right to family life as vivid as the one granted to the heterosexuals, would the mere acknowledgment of a civil status be worthy of all the concessions that have to be made? Or maybe Michel de Montaigne was right when saying that ‘nothing is so firmly believed as that which is least known’. 43
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS THIRD EDITION: Alexandru Parlea Andrada Florea Andrada Rusan Oana Cotoara Bogdan-Petru Buta Cristina Brad
Diana Buzila Ioana Baraian Nonu Puscariu Oana Irimia Oana Vaivoda
We would like to extend a special thank you to Cosmin Vasile for taking the time to offer us an interview, and also to Dr. Frederik Swennen, for his contribution to this editionâ&#x20AC;&#x2122;s debate.
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