To help celebrate Europe Day 2023, I asked FCIL-SIS European Law IG members to share some of their favorite EU research tools. To be fair, I gave a very short turn-around time so I’m sure many other members would have liked to share but didn’t have a chance – sorry!! But here are the responses I received, which highlight many of my own favorites:
Need legislative history resources on laws enacted in various European nations and/or the European Community, such as the European Law on Transmissible Animal Diseases (Animal Health Law of 2016)? Want to trace the legal framework that shaped Europe’s and the world’s cultural heritage, such as the Nuremberg Laws of 1935? Looking to understand the regulatory factors that impact present-day Trade Models in the European Union? Check out Europeana – a portal providing centralized access to legal and other cultural resources from digital collections of thousands of cultural institutions across Europe. Funded by the European Union, and via collective efforts of 37 aggregators, Europeana currently retains over 50 million cultural items in textual, photographic, and/or audio/visual formats. To enrich its continuously growing digitized collections, Europeana has launched a crowdsourcing project – Europeana Transcribe (Transcribathon), inviting the public to transcribe and annotate data intended to archive Europe’s cultural heritage for posterity. – Anahit Petrosyan
The Your Europe portal is a great first online stop if you are looking for information about how the law protects rights and impacts many aspects of daily life in EU member states. The EU created this site to “help you do things in other European countries,” including “moving, living, studying, working or simply travelling[.]” For example, after selecting English when you enter the site, on search form, use the menus provided to select Citizen/Consumer > Germany > Citizens’ and Family Rights > Gender Recognition. Then click Search. The single search result is to the English-language page on this topic on the German government’s administrative information portal. While the information on this page is not extensive, it does describe the basic procedural steps to complete an application to change gender, as well as a notification that, in Germany, “regulations under the German Transsexual Law are administered by Local Courts,” which may not necessarily be an intuitive first destination for people who are trying to navigate this kind of bureaucracy. Finally, this page also lists the name of the relevant law in German, with a link to the full German text of the law in the federal government’s Gesetze-im-Internet legislation portal. While some EU member states offer limited information in English in their online administrative portals, this site at least saves you from having to navigate absolutely everything in a language you don’t read that well (or at all). It points you to the right place on an official government website based on the criteria you selected in English, which means that you don’t need to wade through a million results in a Google search, or even having to figure out what to type in the Google search box. – Jennifer Allison
One of my favorite tools within Eur-Lex, the gateway to EU legislation, is Summaries of EU Legislation. It is an open access subject specific mini encyclopedia of EU law and a great place to start one’s research. Glossary of summaries offers the traditional index-like approach to exploring EU law, while advanced search (now also including a search through archived summaries) offers text/title search, summaries identifiers search (CELEX No), as well as special filters including EuroVoc or topic. The summary of legislation succinctly introduces the purpose of the law along with its key points, while also pulling together relevant and related regulations, directives, and decisions. Are you interested in knowing how EU regulates chocolate? Cocoa and Chocolate Summary of EU Legislation offers a great start. – Lucie Olejnikova
Interested in even more? Don’t forget the FCIL-SIS Newsletter has a wonderful series of Resource Reviews from the Electronic Resources IG, including Erin Gow’s 2019 review of Eur-lex (page 6). And for any FCIL-SIS members who would like to talk more about their favorite European Law resources, don’t forget to join the AALL My Communities group for the European Law IG and share your thoughts there!
Program: Public and International Law in the Digital Age
Presenter: Professor Valère Ndior, Université de Bretagne occidentale
The speaker for this program was Valère Ndior, who is a Professor of Law at the Université de Bretagne occidentale (France), where his teaching and research focuses on public international law and digital law. He is also the Deputy Director of the Lab-LEX research center, the President of the Réseau francophone de droit international and a Board member of the French Branch of the International Law Association.
While States are critical of digital platforms, a growing number of governments and political actors use them as tools to carry out their own activities. The Twiplomacy project reveals that governments leaders are increasingly resorting to personal or official accounts to communicate on Facebook and Twitter. International organizations, local authorities and law enforcement agencies also make extensive use of digital platforms, both for communication with the public and carrying out their missions. The internet is a mean of mass dissemination of official communications of States, with a potential for legal spin.
The presentation considers that digital technology may be a useful tool at the disposal of institutions and agencies, even if used to infringe fundamental rights. The tools can also be a disruptive factor for national activities. The presentation focuses on French law, while touching on US law and International law perspectives
Prof. Ndior points to a number of areas that are of concern for legal issues related to technology and information management in the digital age:
Cybersecurity
Misinformation
Prevention of Sensitive Data Leaks
Regulation of Expressions of Individuals
Protection of Personal Data
Limitation of Control over Data Platforms
An example he highlights is several efforts to build “Sovereign” Clouds that are unlike iCloud spanning most of the technological world, but are under the legal control of the countries in which they are established. Data does not cross “national” borders denying other countries jurisdiction over the data or any exposure to international intervention. Two implementations of this were Deutsche Telekom in Germany and Swisscom in Switzerland. There are also private companies that would establish national clouds, supported by national subsidies. Two examples were Numergey and Couldwatt, but it did not sound like these were very successful.
The digital age is manifesting in how governments operate. States use the internet and present themselves to both their national audience and to the wider world. An estimated 70% – 80% of heads of state use social media. Many are creating an “e-state” that represents the country on the internet. This includes establishment of government agencies with mandates over technology. Some governments are even creating ministerial (cabinet level) departments to oversee the adoption of technology by the country.
For France, Prof. Ndoir points to the National Commission for Information Technology and Civil Liberties (CNIL), Commission for Access to Administrative Documents (CADA), and National Digital Council (CNN) as examples. Being a member-state of the European Union, France participated on the European Data Protection Board (EDPB) as well.
Tweets on Prof. Ndior’s slides
The use of technology as a tool is not necessarily all good. More and more there is targeted and mass surveillance by both private and public players as they monitor individuals in going about their daily lives. Tech can be intrusive, such as when facial recognition is used in public forums. Tax authorities are using the internet to track dollars. Some states have even sought to shut down their national internet networks and sever ties to the World Wide Web. Iran has gone to the extent of creating its own network infrastructure that is isolated from the wider web.
Legal challenges are mounting for the internet. The European Union is looking to adopt both the Digital Services Act (DSA) and the Digital Markets Act (DMA) by 2022. In May 2021, the EU became the first governmental body in the world to issue a draft of regulations aimed at governing the development and use of artificial intelligence. In the United States there are debates over reforming Section 230 (47 USC § 230), part of the Communication Decency Act, which protects services from liability for user posted content. Across the spectrum there are continued struggles over application of laws regulating public and private online speech.
Prof. Ndoir sees the shift of governing the internet away from Private Law toward Public Law, along with the development of Digital Law. Remember the user agreement you clicked when signing up for Facebook or Twitter? That was a contract, an example of private law. You can also see the shift in perception of academic studies of the topic and the research the academy is publishing. This shift enjoys shared common perspectives in the views of both the European Union and the United States, but there are many contrasting perspectives embraced by other jurisdictions. Thankfully, this shift is an application of reasoning to digital law for the public good as we find in public law.
The program was a chance to think beyond the silo that many of us fall in as we only consider our own experiences of using the internet and our national perspective. While it is a World Wide Web, we are habitually steered toward local solutions. We have to actively reach aboard to get that glimpse of foreign perspectives and doing so we often unwittingly make ourselves subject to their Digital Laws
Switzerland’s Federal Council began issuing a series of orders in response to the COVID-19 pandemic on February 28, 2020. The Council acted under the emergency powers provision of Article 185(3) of the Federal Constitution (which authorizes it to “issue ordinances and rulings in order to counter existing or imminent threats of serious disruption to public order or internal or external security” for a limited duration) and as authorized by Article 7 of the Epidemics Act of 28 September 2012 (which allows the Federal Council to “order necessary measures for all or part of the country” if an “extraordinary situation requires it,” restricting the cantons to acting in areas outside the scope of the federal order).
The first order—in effect through March 15—was brief; it forbid gatherings of more than 1,000 people, required organizers of smaller gatherings to evaluate the risks of such events in consultation with cantonal authorities, and directed the cantons to enforce these restrictions.
The Federal Council issued a second ordinance on March 13 which was far more detailed and restrictive. Among other things, COVID-19 Ordinance 2 imposed restrictions on border crossings and the admission of foreign nationals coming from high-risk areas; restricted the export of personal protective equipment and essential medical goods; centralized the reporting of inventory and allocation of essential medical supplies; required schools and universities to discontinue classroom teaching; prohibited events of more than 100 people; and restricted restaurants and bars to hosting no more than 50 people at a time. Ordinance 2 also imposed requirements on hygiene and social distancing as recommended by the Federal Office of Public Health (FOPH), but did not require a nationwide lockdown (though the FOPH issued recommendations on isolation and quarantine). A series of amendments to Ordinance 2 relaxed various restrictions; a table from the FOPH summarizes such changes.
Ordinance 2 was abrogated and replaced by COVID-19 Ordinance 3 on June 22 (in force through December 31, 2020), which has fewer restrictions than Ordinance 2. Notably, it continues to restrict border crossings and entry by foreign nationals, maintains provisions intended to ensure supplies of essential medical goods, and provides for federal funding of SARS-CoV-2 tests.
Tracking of confirmed cases in Switzerland (as of Nov 2020)
The Federal Assembly passed the Federal Act on the Statutory Principles for Federal Council Ordinances on Combating the COVID-19 Epidemic on September 25, 2020, which authorized the Federal Council’s use of special powers “only to the extent that they are required to respond to the COVID-19 epidemic.” It also extended financial support to businesses whose revenues had fallen by 40% or more, to individuals whose income had fallen by 55% or more, and to the cultural and sports sectors.
Switzerland’s executive authority, the Federal Council is composed of seven Councillors elected by the United Federal Assembly (both chambers of the bicameral legislature), with one Federal Councillor selected to serve in the ceremonial post of President of the Swiss Confederation for one year (currently Simonetta Sommaruga).
Based on the Decentralized Privacy-Preserving Proximity Tracing (DP3T) project led by the Swiss Federal Institute of Technology Lausanne and the Swiss Federal Institute of Technology in Zurich, and publicly released on June 25, 2020, SwissCovid is a contact tracing mobile application which alerts users if they have been within “2 m[eters] for more than 15 minutes to someone who has tested positive for the Coronavirus.”
As of October 31, 2020, Belgium had the second-highest number of deaths by COVID-19 per capita in the EU/EEA and UK, and third-highest in the world—100.26 per 100,000 people—though some have argued that the Belgian methodology exaggerates this figure by including deaths suspected but not confirmed to have been caused by COVID-19, in contrast to practices elsewhere.
The country’s initial response to the COVID-19 pandemic was complicated by the fact that a caretaker government with limited powers had been in place since the federal election of May 26, 2019 until March 19, 2020, when an agreement was reached to allow Prime Minister Sophie Wilmès to form a minority coalition government. Twolaws passed on March 27 granted this newly-formed government special powers for three months to address the pandemic. After an agreement was reached to form a new, fully-functional coalition government, Wilmès was succeeded as Prime Minister by Alexander De Croo on October 1, 2020.
The structure of Belgian government also complicated its response to the crisis. A constitutional monarchy with a federal state and a parliamentary system, the country is divided into federated entities: three Communities (Flemish, French, and German), and three Regions (Flemish, Brussels-Capital, and Walloon); the Flemish Community and Region are unified as a single entity. Thus no centralized body has full authority over matters related to the pandemic—public health, for example, is a shared responsibility of the federal government, the Communities, and local governments. That said, “the core of the Belgian response to the crisis and, notably, the measures which limit fundamental rights most drastically by imposing an almost complete lockdown…have been adopted at the federal level” (Frédéric Bouhon et al., “States’ Reactions to COVID-19 Pandemic: An Overview of the Belgian Case”).
Minister of Security and the Interior Pieter De Crem has directed much of the federal response through a series of ministerial decrees. On March 13, 2020, he issued a decree launching the federal phase of the national emergency plan. This was followed by another decree on March 18 authorizing a range of measures intended to reduce the spread of SARS-CoV-2, including social distancing of 1.5 meters; requiring telework and the closing of nonessential businesses; forbidding public gatherings; suspending primary and secondary education and requiring distance learning for higher education; and mandating home confinement except for essential activities through April 5. Further decrees on March 23, March 24, April 3, and April 17 revised these requirements. The measures were later extended multiple times, through May 3, 2020, before beginning to be lifted in phases.
In response to a significant rise in infections and deaths in the autumn of 2020, a decree issued on October 28 reimposed emergency measures, with Prime Minister De Croo stating on October 30 that “[w]e are going back into a strict lockdown, which has only one purpose: to ensure that our healthcare system does not collapse.”
Reporting to the Minister of Social Affairs and Public Health, the FPS Health, Food Chain Safety and Environment has four departments: Health Care Facilities Organization; Primary Health Care and Crisis Management; Animal, Plant and Foodstuffs; and Environment.
A service of the FPS Health, Food Chain Safety and Environment, Info-Coronavirus is Belgium’s central website for official information about the COVID-19 pandemic.
Belgium’s national public health institute, Sciensano was formed in 2018 by the merger of the Scientific Institute of Public Health (WIV-ISP) and the Veterinary and Agrochemical Research Centre (CERVA-CODA).
English-language news website intended “to provide a platform for the international community to express opinions, share information and fully participate in Belgian life.”
Vlaamse Radio- en Televisieomroeporganisatie (Flemish Radio and Television Broadcasting Organization) is the public service broadcaster of the Flemish Community of Belgium, with news in Flemish (Dutch), French, German, and English.
Finland’s first case of coronavirus was confirmed on January 29, 2020;[1] its first death, March 22.[2] While the rate of infection remained stable over the summer[3], certain regions saw a sharp increase in September and October[4] before stabilizing again toward the end of October.[5] As of October 25, there have been 14,970 cases.[6] The Government recently decided on national and regional recommendations which are not legally binding based on the phase of the epidemic (stable, acceleration, community transmission)[7] within each region, as determined by the number of new infections in the region’s hospital districts.[8] In September, the Government adopted a resolution on a new testing-based operating model to ease restrictions on entry at the borders which will go into effect November 23.[9] In the meantime, Finland continues to impose country-specific restrictions on travel; entry may be lifted for traffic between Finland and those EU countries and the UK where the incidence of new cases has not exceeded 25 new cases per 100,000 persons in the previous 14 days (previously the limit was 8-10).[10]
To manage the pandemic, Prime Minister Sanna Marin declared a state of emergency on March 16[11] which remained in effect until June 16.[12] The national government also created the COVID-19 Coordination Group which consists of the permanent secretaries of all twelve ministries, and the directors of Government Security, Government Communications, and the National Institute for Health and Welfare.[13] The COVID-19 Coordination Group implements the decisions made by the national government to curb the epidemic.[14]
Finnish Institute for Health and Welfare
Each of the twelve ministries is responsible for the preparation and administration of matters within its mandate.[15] With regard to managing the coronavirus epidemic, the Government has recommended that the Ministry of Education and Culture and the Ministry of Social Affairs and Health issue recommendations to the competent regional authorities and educational institutions and universities on the implementation of restrictive measures.[16] The Ministry of Finance and the Ministry of Social Affairs and Health are to adopt a national recommendation on the use of teleworking.[17] The Ministry of the Interior oversees border management and police,[18] who in turn enforce border restrictions and limits on public gatherings.[19] The Institute for Occupational Health and Institute for Health and Welfare, which operate under the Ministry of Social Affairs and Health,[20] have issued recommendations and guidelines for reducing the transmission of coronavirus.[21] Finally, there are six Regional State Administrative Agencies in Finland which work with local authorities to carry out decisions made by the national government[22] by putting forth inter alia guidelines for restaurants[23] and regulations for holding public events.[24]
[1] Anu Haveri, et al., Serological and molecular findings during SARS-CoV-2 infection: the first case study in Finland, January to February 2020, Eurosurveillance (Mar. 19, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7096774/.
Sweden’s response to the COVID-19 global pandemic has been markedly different from the rest of Europe. Sweden’s first coronavirus case was confirmed on January 31, 2020 in Jönköping, with the first case in Stockholm confirmed at the end of February.[1] As of October 2020, there continue to be high infection rates in Sweden compared to neighboring countries like Norway and Finland,[2] but some commentators suggest that Sweden may be poised to avoid the second wave of infection spreading through much of Europe.[3]
The Swedish government classified COVID-19 as “a disease that constitutes a danger to society” on February 1, 2020,[4] and subsequently issued guidelines and recommendations regarding COVID-19 under the guidance of epidemiologist Anders Tegnell. Citizens are encouraged to work from home, limit travel, and social distance, for example, but compliance is voluntary rather than legally mandated. As a result, there is a relatively short list of restrictions and less binding legislation in Sweden in comparison to many other nations.[5] The Swedish Parliament did approve additional emergency powers for the government to respond to the COVID-19 outbreak,[6] and some laws and regulations were passed to address issues such as sick benefits (regulation 2020:582),[7] large public events (Public Order Act 2 chapter, §§ 1-3), and restaurants (Act 2020:526)[8]. The Swedish approach still relies primarily on the voluntary efforts of citizens to follow guidelines and advice, however, rather than centering around legally binding rules and regulations.[9]
In addition to Swedish government and parliamentary information, researchers will also find COVID-19 guidance and information issued by the Public Health Agency. Since Sweden is a member of the European Union, researchers may also wish to consult guidance and documentation issued by that organization. These and additional useful resources are listed below.
Hate crimes are a tragic and ongoing form of crime around the world. While the idea of hate crime as a separate legal entity is relatively recent, it is inarguable that the types of crimes we now recognize as hate crimes have always existed. For such a widespread problem, the legal response to hate crimes varies noticeably around the world, and may surprise the American legal researcher.
Regardless of jurisdiction, hate crime laws generally work in one of two ways: either by increasing the penalty for existing crimes when there is a hate element, or by creating a whole new statute solely to address hate crimes. In practical terms this means that the prosecution of hate crimes may be handled differently, depending on which type of law is in effect. It will be important for researchers to know what type of legislation regulates the prosecution of hate crime in the specific jurisdiction (or jurisdictions) they are interested in, so they know at which point the hate element is likely to be introduced into a case. This understanding will simplify the process of searching a national collection of case law or foreign law reports for relevant cases.
European Union Agency for Fundamental Rights
Hate crime legislation almost universally includes a list of protected characteristics, which often reflect the historical and societal divisions in a jurisdiction. This means that the characteristics protected in different areas can vary widely, depending on the history of the region. Characteristics that may cause deep animosity and which represent marked divisions between communities in one area may be relatively unnoticed in another area. Laws protecting race and religion are widespread, for example, but some U.S. states protect less commonly cited characteristics such as profession or gender identity. The unique history of each nation often determines the most sensitive group characteristics prone to being targeted by hate crimes that increase fear, anger, and hostility. Researchers will most likely need to identify which characteristics are covered by hate crime laws in the jurisdiction they are interested in, and may find noticeable variation in the protected characteristics that appear in a comparative study.
In addition to researching hate crime in collections of foreign national case law and statutes, researchers may be interested in considering a multi-national or international perspective. When researching international cases involving hate crime, it is often worthwhile to look at international human rights organizations with judicial bodies that rule on hate crimes. Useful resources include:
The United Nations Human Rights Office of the High Commissioner: juris.ohchr.org
Other international or multi-national organizations observe, research, and report on hate crimes. These organizations can be excellent sources of information on current approaches and responses to hate crime across jurisdictions. Useful resources include:
These are just a few of the resources that can serve as a starting point for the legal researcher interested in international aspects of hate crime law, and a snapshot of some of the questions FCIL librarians should encourage researchers to consider early in a project on hate crime law. Researchers looking for more detailed information about researching hate crime law may also be interested in my recently published volume on Hate Crimes: A Legal Research Guide (Hein, 2020).
Picking up where I left off in my earlier post, I arrived in Kraków in a somewhat frazzled state, but eagerly joined some fellow Badgers (a.k.a. University of Wisconsin alumni) and began to wander. Kraków, unlike Warsaw, was not bombed during World War II, and its extraordinary medieval square is still intact. The Rynek Główny (Central Square) dates back to the thirteenth century and is flanked by St. Mary’s Basilica, the Town Hall Tower, and the Sukiennice (Cloth Hall), which was once a major commercial hub in eastern Europe. The interior perimeter of the square is also home to some lovely cafés, including E. Wedel, which serves what has to be some of the best hot chocolate on the planet.
Wedel Chocolate Shop in Kraków’s Central Square
Coincidentally, elections for representatives in the EU Parliament (MEPs) took place the weekend that I arrived in Poland (between May 23 and 26, 2019). The polls were open across the country on Sunday, May 26, although I didn’t see much evidence of it since campaign advertising is banned for twenty-four hours before the polls even open (“election silence”). Poles selected fifty-two MEPs, including one spot “on reserve” in the event that the UK leaves the EU; the overall number of MEPs will drop from 751 to 705 if Boris Johnson has his way. There is a nice overview posted on the EU Parliament’s website of how elections for MEPs work in each of the twenty-eight EU member states and how Brexit would ultimately affect each country’s quantitative representation.
Along with Polish-language television stations, I had access at my hotel to five stations in Italian (go figure) and two in English. After ruling out “Ballando con le Stelle” (“Dancing with the Stars”) for election coverage, I selected Euronews as my best option for information. Euronews is partially owned by NBCUniversal, and is all Europe, all the time. The Euronews website is also saturated with information, and free daily email updates (recommended) are available. I also watched a bit of Porta a Porta (Door to Door) on RAI1, which is probably Italy’s most well-known evening talk show. (I find it to be quite entertaining even though I can’t understand all of it.)
Porta a Porta Coverage of the MEP and Italian National Elections
EU election protocols indeed vary from country to country and are mostly governed by national electoral laws; some EU member states actually have compulsory voting (Belgium, Bulgaria, Luxembourg, Cyprus, and Greece). It’s no secret, though, that MEP elections in general have not had stellar turnouts in the past; in 2014, the voter turnout across Europe was 42.61 percent. The 2019 elections had a final turnout of 50.62 percent—the highest in twenty years. In Poland, 45.68 percent went to the polls compared to only 23.83 percent in 2014. The European Parliament (EP) website has an excellent summary of the election results by country. The higher turnout this year might be attributed, at least in part, to the EU’s aggressive campaign to get out the vote, although concerns about climate change and immigration likely had much to do with it as well.
The EP is unusual in that MEPs belong to and sit in political groups; these can be single pan-European political parties or coalitions of Europarties and/or national parties and/or individual MEPs. EP political groups need at least twenty-five members, representing at least seven EU countries, to be officially recognized. During the 2014–2019 term, there were eight recognized political groups, plus a small cadre of Non-Inscrits (NIs), MEPs who did not sit with a recognized EP group. In case you’re interested (I was), MEPs earn a pre-tax monthly salary of €8,757.70 (about $9,600).
The EP political groups are bound by ideology, including left, right, and center, as well as topical emphasis, such as the environment, immigration, and Euroskepticism. There is a helpful chart of the various policy positions linked to the different EP groups posted on the Europe Elects website. Some of the groups have the same names as the dominant political party within its membership. For example, the European People’s Party (EPP) parliamentary group is also the name of the European political party with which its members identity. Under EU law, only registered European political parties are eligible for funding and are able to campaign during the MEP elections.
Throughout the television coverage of the elections, it was clear that the centrist EU parties were taking a beating—these being the center-right EPP and the center-left S&D (Progressive Alliance of Socialists and Democrats). The EPP is a pro-Europe party, while the S&D touts itself as a progressive party advancing social justice principles. Gaining ground in this round of elections were the far right (Identity and Democracy, formerly ENF); liberals (Renew Europe, formerly ALDE); and the environmentally conscious (Greens/EFA). Identity and Democracy is a new right-wing alliance that includes supporters of France’s Marine Le Pen and Italy’s Matteo Salvini. (Note that Salvini has been sidelined somewhat at the national level as an unlikely and surprising coalition in Italy formed a new government last week.)
Most commentators expected the EU to follow the Spitzenkandidat process post-election to determine the EU Commission’s next president. Spitzenkandidat means “lead candidate” in German and was used in 2014 to select Jean-Claude Juncker (Luxembourg) as commission president. Per the Spitzenkandidat protocol, before the MEP elections, European parties select a candidate they would nominate for the commission presidency if they were able to carve out a majority in parliament. Prior to the May elections, Manfred Weber a German member of the EPP, was widely regarded as the frontrunner for the EU Commission presidency.
The Spitzenkandidat process, however, was not used this time around. After what the New YorkTimes characterized as “grueling and bitter negotiations” in early July, the newly seated MEPs (Ninth Legislature) confirmed EPP member Ursula von der Leyen as the next president of the commission (by a vote of 383 to 327). Von der Leyen, a close ally of Angela Merkel, will be the first woman to hold the post and the first German serving in the role in fifty years. She will also be dogged by a parliamentary investigation still ongoing in Germany about mismanagement in the defense ministry during her tenure there. Von der Leyen will take over from Jean-Claude Juncker at the end of October on the same day that the UK is due to break from the EU, with or without a Brexit deal. For a discussion of the demise of the Spitzenkandidat process, see “Who Killed the Spitzenkandidat?” (July 8, 2019) on POLITICO.
Some international trips flow like clockwork, others not so much. Despite meticulous planning, my recent trip to Poland falls in the latter category. I severely sprained my ankle in Warsaw (I’m still hobbling about), and at the beginning of the trip, I had a rather challenging experience with my transportation.
Julienne in Krakow (photo courtesy of Julienne Grant).
I knew things were not off to an auspicious start when I received a cryptic text from LOT Polish Airlines the afternoon before my departure, notifying me that my flight from Chicago to Warsaw had been cancelled (no explanation given). Upon calling LOT customer service, I learned that I was forty-second in the telephone queue for assistance. Several hours later, I was rebooked to fly through Brussels (United) and Warsaw (LOT), and then on to my final destination of Kraków on GetJet (no, I hadn’t heard of it either).
Warsaw (photo courtesy of Julienne Grant).
The flights to Brussels and Warsaw were fine, but it was my experience with GetJet that raised my blood pressure. GetJet, I now know, is a fledging Lithuanian airline based in Vilnius, operating a fleet of seventeen airplanes. The boarding was chaotic, the preflight cabin temperature rivaled that of a scorching desert, the flight attendants were generally oblivious, and one of the very youthful-looking pilots had a smirk on his face that was more than slightly disconcerting. I later discovered on GetJet’s website that the airline is openly advertising for flight attendants with “the ability to swim” (among other qualifications) and pilots with various attributes, including “criminal record free.”
I eventually did arrive in Kraków in a rather frazzled state, over two hours later than my originally scheduled flight, but ready to hit the ground running. In the back of my mind, however, I conjectured that there had to be an international treaty or EU regulation I could draw upon to solicit some form of compensation from LOT for the hassles that I had just experienced. I didn’t have to wait too long to learn that my hunch was correct, as I received an email from Expedia that caught my attention; I might be eligible for up to $436 under EU passenger law and that AirHelp was there to fight for my fair share. Being an FCIL librarian, I immediately accessed EUR-Lex on my phone to see what legal recourse I actually had.
Some delicious Polish treats (photo courtesy of Julienne Grant).
There, I discovered EU Regulation 261/2004—an airline passenger’s bill of rights that sets forth the circumstances when a passenger (regardless of nationality) can receive compensation for such events as cancellation. If you fly an EU-based airline to an EU country from outside the EU, and your flight is cancelled less than two weeks prior to the scheduled flight, the amount of compensation is based on the distance traveled and the length of arrival time delay. The regulation also covers flights from and within the EU, and those airlines do not have to be EU-based. EUROPA has a set of user-friendly and interactive web pages, as does AirHelp, which I used to determine that my potential payment was actually around $338 (€300).
The only defense an airline has is to prove there were “extraordinary circumstances” that caused the cancellation, and I ventured a guess that the scope of this term had been addressed in the Court of Justice of the European Union (CJEU). Searching in CURIA, I was able to identify eighty-three cases that referred to 261/2004 and contained the term “extraordinary circumstances.” Fortunately, I also found a January 2019 EU document in EUROPA that summarizes the “most important judgments with regard to air passenger rights.” Reading through it, I gleaned that the CJEU has decided that technical and maintenance issues inherent in an air carrier’s normal activity are not “extraordinary,” and neither are wildcat strikes by airline personnel. In contrast, acts of terrorism, hidden manufacturers’ defects, and collisions with birds may be deemed “extraordinary” and release the airline from liability. The EU document also notes that the EU is a party to the 1999 Montreal Convention, which addresses both passenger and airline rights in a broader scale, covering such events as injury, death, and baggage/cargo loss and damage.
Krakow Square (photo courtesy of Julienne Grant).
Interestingly, both EU and non-EU airlines have been hauled into U.S. courts for refusing to pay up for delays and cancellations under 261/2004. Many of these cases have been filed in the U.S. District Court for the Northern District of Illinois, and some have been appealed to the U.S. Court of Appeals for the Seventh Circuit. Plaintiffs in these cases have made several different arguments in an attempt to compel the defendant airline to pay up—“direct” actions to enforce EU 261/2004, as well as breach of contract claims. The Seventh Circuit nixed “direct” actions in Volodarskiy v. Delta Airlines (2015), holding that Regulation 261/2004 could not be judicially enforced outside the EU. In the breach of contract claims, courts have examined whether 261/2004 is expressly incorporated in the defendant airline’s contract of carriage, with varying results. For a good overview of the EU regulation itself and its application in U.S. courts, see Richard Ritorto and Stephan A. Fisher, “Exploring Airline Contracts of Carriage and European Union Flight Delay Compensation and EU Regulation 261 (EU 261)—A Bumpy But Navigable Ride,” (82 J. Air L. & Com. 561, Summer 2017).
More delicious Polish treats (photo courtesy of Julienne Grant).
With a pretty clear picture of my options, I decided to try AirHelp, partly out of curiosity, and partly because I didn’t want to deal directly with LOT again. AirHelp actually has a slick online setup for submitting claims; I don’t think the whole process took me longer than ten minutes. The U.K.-based company works on a “no win, no fee” basis, so I didn’t have to pay anything up front; however, I did realize from perusing their fee schedule that AirHelp could potentially get a good chunk of any payment I received. (In all honesty, though, I expected that LOT would come up with an “extraordinary circumstances” argument of some type, and I would receive nothing). Just a few weeks later, much to my surprise, I received an email from AirHelp that LOT had agreed to a payout in the amount of $336, of which I received about two thirds, with the rest going for VAT and AirHelp’s service fee. (For more on the advantages and disadvantages of utilizing AirHelp, see Christopher Elliott’s February 2, 2017 column in TheWashington Post).
Was this enough compensation for the hassle of having to rebook, the late arrival, and the distress of the GetJet nightmare flight? Considering that I hadn’t expected anything, I was a happy camper. I was also happy to have a new “hypo” for my FCIL research course.
Julienne in Krakow with some interesting graffiti art (photo courtesy of Julienne Grant).
Part 2 of this series will look at the European parliamentary elections, which took place while I was in Poland.
I’ve recently returned from the BIALL 2019 Annual Conference, held in the (usually sunny) seaside town of Bournemouth – although this picture from outside the conference venue may inspire envy, I assure you it was cold and rainy pretty much the entire time!
The good news is that while the weather may have been poor, the conference program was great! I was very excited to attend the opening session, which was delivered by David Allen Green, a lawyer and contributing editor for the Financial Times. Green was also the keynote speaker at the BIALL Conference in 2017 where he gave a great overview of what to expect from Brexit, which at that time we all thought would be over by now.
Of course we know that the UK did not leave the EU on March 29, 2019, so Green returned to provide an update on where we are now. Green, who will be coming out with his own book Brexit: What Everyone Needs to Know in August 2019, started off by explaining there are three ways the Brexit issue could be resolved by the current October 31 deadline.
First, the UK could request another extension, but Green feels this is unlikely given that extensions must be agreed upon by the entire EU Council, and given that the previous two extensions were not agreed upon quickly or easily. Further, every request for an extension requires further time, planning, and government representation to organize, and most EU member states are about at the end of their patience which such requests.
The second outcome would be if the UK political establishment finally agrees to the current deal that has been negotiated. However, given that two of the greatest Parliamentary defeats in history have come from votes on this deal, it is unlikely that a new government will have any better luck pushing it through a third time.
A third outcome would be to revoke Article 50 and work on “starting over”, but there does not seem to be the political will to move forward with this option. However, leaving with no deal would be – in Green’s words – “like Armageddon”, so it is entirely unclear what the next move for the UK will be at this stage especially given the current uncertainty surrounding who the next Prime Minister will be (consider following the BBC coverage on this development).
I found Green’s most interesting comments to be on the logical outcomes of all the effort that has gone into planning (or maybe not planning) for Brexit. Due to all of the special apparatuses that had been set up in the EU and the UK to handle negotiations and transitions, Green believes the UK was never in a better position to leave the EU than it was in March. Now due to political leadership changes in both the EU and UK, these teams are being disbanded and much of the institutional knowledge and experience will be lost. Therefore, Green believes that the UK is now in a worse position than it was in March.
In closing, Green spoke very highly of the work that various information professionals have been doing in support of disseminating information, specifically that of the House of Commons and House of Lords libraries’ research briefings on Brexit. He also recommended Parliament’s Select Committee reports which can be browsed either by most recent reports or by Committee, with the Exiting the EU Committee being especially relevant to Brexit issues. Green also singled out two monographs worth consulting on the topic of Brexit: 9 Lessons on Brexit by Ivan Rogers and A Short History of Brexit by Kevin O’Rourke (slightly less relevant, this was my personal favorite Brexit book purchase of the trip).
In addition to Green’s opening plenary session, the closing plenary session by Matthew Bell of the National Archives on meeting the domestic legislative publishing challenges of Brexit offered some interesting insights as well. Although I could only stay for a few minutes of this talk before leaving to catch my flight home, I did find that Bell gave a presentation at the 2018 Law via the Internet conference and the slides posted from that presentation are very similar to what I saw at the BIALL conference.
The most interesting takeaway I had from Bell’s presentation was that the National Archives is well placed to begin its work to create a fully functioning domestic statute book as soon as the UK leaves the EU – the key part being “when”, which was covered extensively in Green’s comments above. The slides do an excellent job of spelling out what is required of “the Queen’s printer” by European Union (Withdrawal) Act 2018, c.16, Sch. 5 para.1 and how legislaton.gov.uk will be working to capture the “moment in time” of EU legislation via Eur-Lex when (if?) then official exit occurs.
Finally, I’d like to put in a small plug for those of you who might have an interest or school focus on UK/Irish law to consider joining BIALL (you may be as shocked as I was to see a familiar face welcoming you to their membership page) and/or attending their conference.
The next BIALL Annual Conference will be held June 11-13, 2020 in Harrogate, which is a lovely Victorian spa town in Yorkshire definitely worth visiting. I personally find BIALL to be more accessible than AALL, especially when it comes to speaking with vendors. Although the products in the UK are not always the same as we have in the US, many of us in the FCIL community are responsible for recommending the purchase of foreign materials and BIALL is an excellent place to learn more about these resources. I’ve attended a number of BIALL conferences over the years and would be glad to answer any questions you might have!
I’ve recently returned from the BIALL 2019 Annual Conference, held in the (usually sunny) seaside town of Bournemouth – although this picture from outside the conference venue may inspire envy, I assure you it was cold and rainy pretty much the entire time!
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