Sojourn in Poland (Part 2): MEP Elections & the Demise of the Spitzenkandidat

By Julienne Grant

This is the second in a three-part series.

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Outdoor Cafés in Kraków’s Central Square

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.

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  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.)

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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 York Times 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.

The newly formed EP has seven political groups, along with fifty-seven Non-Inscrits. The groups are the EPP (182 reps); S&D (154 reps); Renew Europe (108 reps); Greens/EFA (74 reps); Identity and Democracy (73 reps); ECR (62 reps); and GUE/NGL (41 reps). The parliament’s new president is David Maria Sassoli, an Italian member of the S&D group. If the UK exits the EU on October 31, the EP will be reduced by the UK’s allotted seventy-three seats. Forty-six of those seats will be reserved for future enlargement, and twenty-seven will be reallocated (primarily benefitting France and Spain) for a total of 705. For pre-Brexit and post-Brexit scenarios, see “The European Parliament after Brexit: What Would It Look Like?

The EP returns to work this month; the plenary session will be held the week of September 16 in Strasbourg. With the environmentally friendly Greens having a much larger presence (52 reps in the last legislature, 74 currently), and the ever-changing Brexit scenarios, the next several months in the EP (and other EU institutions) could be lively to say the least. To follow EP developments in English, check out Euronews, EUobserver, the European Law blog, and EP News.

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 Euronews Coverage of the MEP Elections

In the final part of this series, I will focus on my time spent in Poland, including my experience at the Auschwitz-Birkenau Memorial and Museum.

Sojourn in Poland (Part 1): My Brush with EU Regulation 261/2004

By Julienne Grant

This is the first in a three-part series.

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.

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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).

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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.

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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.

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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).

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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 The Washington 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.

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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.

 

Despatches on Brexit from BIALL 2019

By Alison Shea

BIAALL.jpgI’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!

Webinar Recap: Working with Non-English Materials for the English Speaker

By Jessica Pierucci

On June 6, 2019, the FCIL-SIS Continuing Education Committee hosted its inaugural webinar, Working with Non-English Materials for the English Speaker. This engaging and information-packed session featured three panelists who discussed the best resources and provided research tips for finding the most helpful English translations of laws in European, Asian, and African countries.

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This post briefly discusses some key takeaways from the webinar, but for a complete list of resources, please check out a helpful handout and set of slides from the presentation both freely available through the Continuing Education page on the FCIL-SIS section of the AALL website. A webinar recording is also available to AALL members at this site.

Europe

Erin Gow, Online Services Librarian at University of Louisville Law Library, started the panel with European languages. She suggested starting with EUR-Lex and N-Lex when looking for documents from EU member states. In EUR-Lex, she pointed out annotations noting the source of translation (official, machine translation, etc.). In N-Lex, Gow demonstrated how the search boxes helpfully translate English language searches to other languages.

Gow also recommended places to find guides for this type of research. GlobaLex is often her first stop. She also checks for research guides from European law libraries, because those guides are generally developed by librarians who regularly work with European resources. Gow specifically mentioned guides from the Bodleian Law Library at Oxford and Middle Temple Library, including Middle Temple Library’s National Information Links for Lawyers PDF chart (PDF on the right).

Gow provided global tips as well. She explained that government websites, websites for relevant multinational organizations, and the International Encyclopaedia of Laws can also be potential sources of translated laws. She also recommended checking Lexis, Westlaw, HeinOnline, treatises, encyclopedias, and law review articles for any translations contained therein. For performing machine translations, Gow noted that she prefers the translation application Linguee. She also discussed the general helpfulness of Google Translate, but she cautioned to always be aware of the limits of machine translation.

Asia

Alex Zhang, Assistant Dean for Legal Information Services at Washington & Lee School of Law, focused on Asian languages. Zhang explained that for countries in which English is an official language, such as Singapore and Hong Kong, the researcher’s focus should be on finding the most authoritative source. Singapore Statutes Online is a helpful government resource for finding Singapore’s laws online, but it only contains unofficial versions of legislation. The official text is published in the print Gazette. On the other hand, electronic Hong Kong e-Legislation documents with “verified copy” marks are the official text.

For countries in which English is not an official language, the best bet is often finding a translation produced by a governmental entity (e.g. Japanese Law Translation), but it’s crucial to remember translations won’t have official status. Zhang emphasized considering the translation’s origin, focusing on the translation source, date, version history, and format. She also encouraged comparing multiple translations where possible.

Zhang also shared some broadly applicable tips. Great research guides may come from academic libraries in a relevant country, such as the Chinese University of Hong Kong Library. The Foreign Law Guide, GlobaLex, and Law Library of Congress Guide to Law Online: Nations are all great resources for locating information about the availability of translations. Further, Lyonette Louis-Jacques’ “How to Find Cases in Translation, Revisited” in Slaw is a valuable tool for case research ideas.

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Africa

Yemisi Dina, Acting Chief Law Librarian at Osgoode Hall Law School Library capped off the panel by discussing African languages. Dina focused on the presence of many indigenous languages across the continent, which can lead to loss of the true meaning during translation from language to language. One manner in which meaning can be lost occurs when customary court judges, who often do not produce written decisions, elect to have their decisions written in a language other than the indigenous language spoken during the proceedings. Meaning can also be lost during international tribunal hearings, when interpreters translate from an indigenous language to the official language of the tribunal.

Although true that many African countries have English, French, Arabic, and/or Portuguese as official languages, the text in those languages may not fully capture the meaning originally intended by law originated in an indigenous language.

Dina suggested using AfricanLII as the go-to resource, but noted that it, like LLMC and other collections, is incomplete and still has a way to go toward becoming a complete resource for African legal information.

Want more information?

Don’t forget to check out the webinar resources posted on the Continuing Education page on the FCIL-SIS section of the AALL website. They’re super helpful including citations and links to a wide array of translation-related resources.

ASIL 2019 Recap: Late Breaking Panel: BREXIT and International Law

BrexitBy Marylin Raisch

Moderator: Oonagh Fitzgerald, Director of the International Research Program, Centre for International Governance Innovation, Ontario, Canada

Speakers: Robert Howse, New York University School of Law; Jessica Simonoff, U. S. Department of State; Sir Michael Wood, 20 Essex Street Chambers; Joao Rodrigues, European Parliament Liaison Office

The fact that the very day of this panel at ASIL was originally “Brexit Day,” that is, the day the UK Parliament was to exit the European Union, says a great deal about Brexit and the crisis at the nexus of international and constitutional law that it represents. However, it may happen April 12 if she cannot get her plan passed on this day, which would have given the UK until May 22nd instead.[1] (Or, as of this writing, at the end of this year if Labour cannot join up? Who knows…). This late-breaking panel was scheduled to end at 10:30 a.m., when the straw polling in Parliament on Prime Minister Teresa May’s proposal was to begin. And so it goes. (We learned soon after the panel session broke up that the proposal failed).

After briefly reviewing the timeline from the referendum in 2016, moderator Oohagh Fitzgerald provided a summary of the U.K. Supreme Court Decision of R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5]  (January 24, 2017). This is notable since the ruling of the court established that the UK executive could not just notify the European Council of its intention to withdraw from the EU; as with other UK treaties, an Act of Parliament would be required to permit that communication. (There is now in fact a European Union (Notification of Withdrawal) Act 2017 as of Royal Assent dated March 16, 2017). With at least this basic context in place, and some reference to the role of House of Commons speaker Bercow in requiring substantial changes before another vote on the same matter could take place, the Moderator posed a series of questions to the panel.

  1. What is the state of international law in the UK in light of BREXIT? Does it demonstrate that international law is working as it should?

Panelists articulated several perspectives on this excellent question and seemed to cover the range from internationalist to newer reassertions of sovereignty. For example, Sir Michael Wood, who participated in negotiation of the UK treaty of access to the EU in his time as an EU-focused lawyer, stated that EU law is not really autonomous. It is embedded in treaties and so it is largely part of public international law. The issue of Northern Ireland, and the UK ideally remaining in some sort of customs union to avoid a hard border, may become one of rules of interpretation. There is disagreement between the UK and the EU on whether the art. 50 withdrawal mechanism operates to contract the UK out of even customary international law rules. While Sir Michael pointed out that some MPs think “fundamental” and “unforeseen” changes in circumstances are manifested in the backstop situation, and Brexiteers (pro-Brexit MPs and ministers) think this might permit departure from the Brexit agreement (and its backstop under art. 62 of the 1969 Vienna Convention on the Law of Treaties), he is not sure that this would be so. (Brexiteers want to prevent an eternal tie to the customs union). Many are skeptical that evidence of concern over an issue such as that, expressed in advance, could ever allow that issue to be called “unforeseen.” This panelist shared that skepticism, as he is more of an internationalist and former lawyer working with the UN International Law Commission and the Foreign and Commonwealth Office.

A different view was taken by the panelist from the current US State Department. Jessica Simonoff viewed Brexit as an outsider and saw it as not about development of supranational governments but rather as showing the ongoing significance of national identity. The rules are developed by consent, as underscored by the ability to depart from a treaty.  International law is alive and well because even after the UK delegated some of its international negotiating authority to the EU, it now can re-familiarize itself with some international law rules.

Professor Howse of NYU Law then contributed insights from international economic law as he pointed out that the UK would still be under the multilateral rules of the WTO. The logistics of new trade agreements and the hard border are not like the arrangements around which supply chains are organized. Pro-Brexit forces seem to him not to understand how new globalized trade actually works now, and a hard Brexit would create initial chaos with serious shortages of goods, at least temporarily. He also commented on the politics of Brexit, which he attributed in part not to a return to lost sovereignty, but to the work of elites using populism for political career advancement.

Panelist Rodrigues quipped that he “owns” his hat as EU bureaucrat. However, he prefers the term civil servant, a profession her noted ironically was established by the British.  The EU is an international organization, but one created by a body of laws that has a constitutional nature. He sees Brexit not really a legal question, because it is allowed under the treaty in the procedure outlined by the UK case. Moreover, a case went to the European Court of Justice on the issue of unilateral withdrawal from the Brexit process, and it was ruled permissible if done democratically. So the legal part is all sorted. But he asked the political question of how does a member state get itself to a decision to leave? What is disturbing is that here we are on Brexit Day and there is no clear manifestation of British will. International law is well; political process in Britain is not.

  1. May cannot use crown prerogative per the Miller case, in this instance of a treaty, but now can she not move ahead with a statute in place?

Sir Michael Wood pointed out that even with some of the specific legal hurdles surmounted, the situation carries huge implications for UK constitutional law and there should never have been a referendum. While the rule of law and the idea that a minister cannot put same issue to vote twice in same Parliament is the same rule that in UN from parliamentary procedure.  Treaties are executive and Parliament is not usually part of negotiations. In this case it has led to big problems.

Ms. Simonoff and Professor Howse, sharing a US perspective, observed that whether the UK is able to pull out of treaty has been moved to Parliament as a matter of constitutional law. Simonoff then compared the process to NAFTA withdrawal and Congressional involvement in those types of agreements. Howse noted and agreed that NAFTA would need some Congressional action for withdrawal. For WTO withdrawal, he speculated, were it to be contemplated, it would have to be based on resolutions of Congress, because the provision for review works through a Congressional process.

Rodrigues noted that there the Task Force on Article 50 Negotiations website was quite transparent, and indicated publicly what they would or would not accept. The EU 27 were united in how to deal with situation. Unlike Professor Howse, however, he thought populism played a crucial role.

  1. Is there a new bilateralism? Will getting out of massive relationship make the UK able to enter into such new agreements? Moderator Fitzgerald noted that European Council President Tusk thought bridging gap between any popular vote and orderly obligations needs to be worked out ahead and we have not seen that here in concrete plans for a new arrangement.

While Sir Michael Wood observed that the EU is not really multilateralism of the usual kind, Jessica Simonoff of US State thought that while bilateralism may simplify a discussion, a treaty negotiation is never really bilateral, as there are other voices in the room. Actions in the UK will always affect the EU. Contracts in many areas will be affected in the realm of private parties (for example, phone roaming fees now in EU after Brexit).

Professor Howse noted that ironically the less-discussed fall-back rules for the UK is a much bigger WTO multilateralism. The EU has now proven that it is a community of choice and right to depart is a real right. Euro-skeptics can now be shown that this is not like the old Soviet Union (to exaggerate) and that the EU made a good faith response. In his role as the EU civil servant on the panel, Mr. Rodrigues agreed that the EU will have to be flexible and negotiate a new trade agreement with the UK itself, so that is certainly bilateral.

  1. Q and A from the attendees consisted of three main questions:
    1. Will there be a way to adjudicate new disputes if there is a hard Brexit?
    2. Will the Good Friday Agreement and human rights in general be respected through some inclusion of the EU treaties’ principles on fundamental freedoms, and equality before the law, as applied in Ireland/N Ireland?
    3. Can the panel address what can be fairly referred to as a dishonest referendum? It was a dishonest vote: had it been between Remain and a version of Brexit, Remain would have won. The referendum was not an exercise in democratic will because no specific version of withdrawal was proposed.

The panelists answered all three questions together. Sir Michael Wood does think that temporary fixes will be used in a hard Brexit regarding air travel etc. He mused that the UK is paying to leave, and what if they say won’t pay if EU does not approve withdrawal agreement? Ms. Simonoff agreed that now that more information available, a second referendum could be good idea and not anti-democratic. Professor Howse thought democracy was manifested in the first vote, but people are also free to change their minds. Joao Rodrigues stated that the EU just sees it as done deal. Some provisional measures were taken by Council and Parliament to address a no-deal Brexit, such as in areas of customs, pharmaceuticals, etc., about 18-20 special measures, in fact. He thinks financial obligations of the agreement will come into the negotiations for a new UK- EU trade agreement, and rights of citizens as between the two jurisdictions will also play a part. He bases this on the UK rebate on fees that Prime Minister Margaret Thatcher negotiated in the 1980s as manifestation of UK exceptionalism; they got it in 1984, so perhaps now as well.

As the panel ended and everyone left ready to check phones for news of the impending vote, all panelists- and attendees, no doubt- seemed to agree that whatever else it may be, Brexit has been good for stimulating interest in international law, and very good for lawyers.

 

[1] Update and Brexit timeline summary from a research report posted at the official Parliament website: “In a referendum held on 23 June 2016, the majority of the UK electorate voted to leave the European Union.

On 29 March 2017, in writing to European Council President Donald Tusk, the Prime Minister formally triggered Article 50 and began the two-year countdown to the UK formally leaving the EU (commonly known as ‘Brexit’).

The UK has long been expected to leave the European Union at 11pm on 29 March 2019.  However, following a House of Commons vote on 14 March 2019, the Government sought permission from the EU to extend Article 50 and agree a later Brexit date.

On 20 March 2019 the Prime Minister wrote to European Council President Donald Tusk, asking to extend Article 50 until 30 June 2019.

Following a European Council meeting the next day, EU27 leaders agreed to grant an extension comprising two possible dates: 22 May 2019, should the Withdrawal Agreement gain approval from MPs next week; or 12 April 2019, should the Withdrawal Agreement not be approved by the House of Commons.”

 

GDPR and Data Privacy at the ABA TECHSHOW

GDPRBy Meredith Capps

I recently attended the ABA TECHSHOW in Chicago, IL (along with quite a few other law librarians, an impressive turnout!), primarily to stay current on recent e-discovery practices and platforms as my library’s resident e-discovery expert, per my prior life as a law firm associate.  As an FCIL librarian, however, I was compelled to step out of former-litigator mode and attend what proved to be a fascinating session on the EU’s General Data Protection Regulation (GDPR) and data privacy laws.  The speakers, Steven M. Puiszis and Judy Shelby, described the ways in which the practices of U.S. law firms and their clients regarding personal information may run afoul of the law, and how U.S. entities should analyze their risk and approach compliance.

Puiszis and Shelby discussed the GDPR’s expansive reach, noting that even minimal activity in an EU state may render a foreign entity “established” in the EU for purposes of the regulation, and that even data that is not “processed” in the EU is covered by the regulation.  They emphasized that “personal information” is defined in a manner far broader than U.S. lawyers would expect, that there is no small business exception to the regulation, and that this information may reside in many repositories maintained by the typical U.S. firm or business, such as human resource databases, marketing databases, client databases, and, of course, email correspondence.  They discussed lawful bases to process personal information, noting that a law firm conflict check should qualify as information necessary for the defense of legal claims, and discussed anonymizing data as one means of ensuring compliance with GDPR.   Though there is uncertainty as to how GDPR will impact requests for documents in U.S. litigation, Shelby noted that federal courts are generally not receptive to enforcing foreign blocking statutes, and that the typical U.S. approach to discovery runs counter to GDPR’s goals of minimum storage.  Cautious U.S. litigants should nevertheless consider narrowly targeting requests for data that may be subject to GDPR, and consider whether anonymized data would suit their purposes.

Their discussion raised a few issues that brought to mind research questions well suited to a course on FCIL research:

  1. National law: Though as a regulation, rather than a directive, GDPR is directly applicable to member states and does not require domestic implementing measures, Puiszis emphasized that EU states maintain their own privacy laws and policies that U.S. entities must consider in addition to GDPR.  Furthermore, I found that European Commission guidance issued in May 2018 specifically notes that the regulation empowers member states to impose conditions and limitations beyond those imposed by GDPR, and contemplates individual member state determinations as to the applicability of the rules in certain sectors.  The EC also states that interpretation of the regulation will be left to European national courts.  In constructing an EU research question concerning GDPR, instructors could well introduce foreign law questions into their hypothetical research problem–questions for which researchers would not enjoy the benefit of the national transposition measures list provided only for directives in EUR-Lex.
  2. Cyber-insurance: Shelby discussed the possibility of obtaining cyber insurance to cover fines associated with GDPR violations, but noted that these fines may not be insurable under the domestic law of some states, raising another potential foreign law companion question.
  3. Recognition of foreign judgments: Though due to time constraints they could not discuss enforcement issues in depth, the speakers mentioned difficulties surrounding the imposition of fines when an entity lacks assets in the EU, and that international treaties or domestic laws such as the U.S. Uniform Foreign Money Judgements Recognition Act may provide mechanisms for cross-border enforcement.  As enforcement proceedings inevitably proceed, they should raise interesting examples involving a mix of foreign and international law.
  4. Data Protection/Processing Agreements (DPAs): Puiszis discussed the importance of entering into, and modifying per GDPR, agreements with vendors and third parties with whom firms, and their clients, may share personal information.  Asking students to locate sample agreements would be an excellent way to reinforce research instruction from 1L and Advanced Legal Research courses regarding publications containing forms and sample contracts.

Locating UK and EU Guidance on Brexit

By Alison Shea

Brexit
Over the past week, two things happened which inspired me to write this post.  First I read this story on how the Dutch government had set up a website to provide guidance to its citizens on how to prepare for Brexit, and of course I immediately imagined how awesome it would be if the Dutch Brexit monster featured in the story teamed up with Gritty for a buddy comedy.  Second, I read FCIL-SIS Chair Catherine Deane’s column in the FCIL Newsletter asking for people to volunteer to write a blog post for Diplawmatic Dialogues.

As much as I know you were hoping to read my script ideas for the Gritty/Brexit monster buddy comedy, I began wondering if any other countries had created a comprehensive guidance site for its citizens and businesses in advance of Brexit (and especially a no-deal Brexit).  It had previously occurred to me that teaching an EU and/or UK research classes this semester would be very challenging given the timing of Brexit, and I figured the best thing I could recommend to students given this uncertainty would be to look for and follow government guidance documents.

Why recommend government guidance documents?  Because the actual withdrawal of the United Kingdom from the EU – currently scheduled to occur at 11pm GMT on March 29 – now looks like it will be very abrupt (if it happens at all), it will not be possible to amend all relevant laws to reflect the changes immediately (check out this blog post for a brief overview of the magnitude of changes that need to occur).  Thus, it will be important for anyone with an interest in Brexit to follow the government’s guidance on how to deal with it until the law can catch up.  Not only is the guidance going to be crucial for those living and working in the UK, it will also be extremely important for any country that currently engages with the UK in its (soon to be former?) capacity as a fellow EU member.   Therefore, a list of places to locate government guidance seemed like a good tool to create for librarians and FCIL instructors to have in their toolbox over the coming month(s).

After spending a few days searching and locating guidance information for most of the EU member states, I realized that the EU had already beaten me to creating a list of the relevant government guidance sites.  This was an extremely disappointing discovery, since I had already pitched this as a great blog post to Alyson and Susan and was really proud of my advanced Google (and Google Translate) skills.  However, from all my searching I can at least share my top research tip: because “Brexit” isn’t a real word, it’s a great search term to use in any language!   In the end, Alyson and Susan convinced me that there could still be value in my post, and so I humbly present a (shorter) list of relevant sites for locating government guidance on Brexit.

It should go without saying that this is what I was able to locate as of February 26, 2019; the landscape of Brexit guidance will undoubtedly change the closer we get to “B-day”, and will also change if the UK government takes new action in the interim (the latest update is that a “meaningful vote” will be held by March 12), so stay tuned!*

United Kingdom guidance

European Union guidance

Individual European country guidance

Even non-EU member states are finding it necessary to prepare for Brexit, as these countries interact with the United Kingdom under various bilateral agreements with the European Union and the European Economic Area; see, for example, this recent agreement on arrangements of citizen’s rights for many of these non-EU countries.  Three countries that have especially close ties with the UK are listed here:

 

*Looking for suggestions on how to “stay tuned” to the ever-changing world of Brexit?  Here are some of my go-to sources for Brexit coverage: