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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

European Union: Court Dismisses German Bank’s Challenge Against “Significant Entity” Classification

(June 22, 2017) In a decision issued on May 16, 2017, the General Court of the European Union confirmed the decision of the European Central Bank (ECB) to classify the German State bank Landeskreditbank BadenWürttemberg – Förderbank as a “significant entity.” The bank is therefore subject to direct supervision by the ECB rather than supervision by the German national authorities under the ECB’s control.  The Court held that there were no “particular circumstances” that justified allowing the bank to come under direct prudential supervision by the German authorities despite its status as a “significant entity.”  (Judgment of the General Court (Fourth Chamber) (May 16, 2017), Case T‑122/15, INFO CURIA.) The General Court is one of the two components of the Court of Justice of the EU, the other component being the Court of Justice. It rules on actions for annulment and deals primarily with competition law, state aid, trade, agriculture, and trademarks. (Court of Justice of the European Union (CJEU), EUROPA (last updated June 20, 2017).)

The suit marks the first time that a bank has challenged its classification as “significant” since the task of direct supervision was conferred upon the ECB in 2014. (Case T‑122/15, supra.) The ECB derives this function from its role in the system of banking supervision in the EU, called the “Single Supervisory Mechanism” (SSM).  MOVE UP FROM BELOW?:The SSM is made up of the ECB and the national supervisory authorities of the participating EU countries.  (Council Regulation (EU) No 1024/2013 of 15 October 2013 Conferring Specific Tasks on the European Central Bank Concerning Policies Relating to the Prudential Supervision of Credit Institutions (SSM Regulation), 2013 O.J. (L 287) 63, art. 6,¶ 1.)

The Court stated that as the total value of the bank’s assets exceeded €30 billion (about US$33.4 billion), it is to be classified as “significant” in accordance with the criteria set out in the SSM Regulation. (Case T‑122/15,¶ 76, supra; SSM Regulation, art. 6, ¶ 4.) The Court dismissed as irrelevant the bank’s argument that direct supervision by the ECB was “inappropriate” because the bank allegedly had a low risk profile and prudential supervision could therefore be sufficiently achieved by the national authorities. (Case T‑122/15, ¶¶ 87-89, supra.)

The Court further stated that under the SSM Regulation and the SSM Framework Regulation, a classification as “significant” is only inappropriate if there are “specific factual circumstances” that make direct supervision by the national authorities “better able to attain the objectives and safeguard the principles of the relevant rules including, in particular, the need to ensure the consistent application of high supervisory standards.” (Case T‑122/15, ¶ 80, supra; Regulation (EU) No. 468/2014 of the European Central Bank of 16 April 2014 Establishing the Framework for Cooperation Within the Single Supervisory Mechanism between the European Central Bank and National Competent Authorities and with National Designated Authorities (SSM Framework Regulation) (ECB/2014/17), 2014 O.J. (L 141) 1, art. 70, EUR-LEX.) In this case, the Court held, the bank had not demonstrated that supervision by the German authorities would be better able to attain the objective of consistent application of high prudential supervisory standards, only that it would be “sufficient.” (Case T‑122/15,¶ 88.)

Background on Banking Supervision in the European Union

The ECB is generally responsible for the effective and consistent functioning of the SSM. (SSM Regulation, art. 6 ¶ 1.) Since November 4, 2014, the ECB directly supervises the “significant” credit institutions, financial holding companies, or mixed financial holding companies of the EU countries that participate in the SSM.  What constitutes a “significant bank” is determined by the ECB according to the criteria set out in article 6, paragraph 4, of the SSM Regulation, among them size (total value of assets), economic importance for the EU or any participating Member State, cross-border activities, and whether or not the bank has requested or received direct public financial assistance from the European Stability Mechanism (ESM) or the European Financial Stability Facility (EFSF). (Id. art. 6¶ 4.)

The ESM is a permanent stability mechanism that was set up in 2012 by the euro-area Member States according to article 136, paragraph 3 of the Treaty on the Functioning of the European Union to safeguard the stability of the euro-area as a whole. The purpose of the ESM is to mobilize funding and provide financial assistance to an ESM member that is experiencing, or is threatened by, severe financing problems, as was the case with Greece. The EFSF was the predecessor of the ESM and was set up as a temporary crisis resolution mechanism in May 2010.  (Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47, EUR-LEX; Jenny Gesley, FALQ: The Greek Debt Crisis – Part I, IN CUSTODIA LEGIS (July 16, 2015); Jenny Gesley, FALQ: The Greek Debt Crisis – Part II, IN CUSTODIA LEGIS (July 17, 2015).)

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Australia: Bill to Amend Citizenship Requirements Introduced

(June 21, 2017) On June 15, 2017, the Australian Minister for Immigration and Border Protection, Peter Dutton, introduced a bill in the House of Representatives that will implement the government’s proposals to amend certain legal requirements for obtaining Australian citizenship.  (Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited June 16, 2017); Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (Cth), Federal Register of Legislation website.)  The government had previously announced the proposed changes at a press conference in April 2017.  (Press Conference with the Minister for Immigration and Border Protection, The Hon. Peter Dutton MP, Parliament House, Canberra (Apr. 20, 2017), Prime Minister of Australia website; Press Release, Hon. Peter Dutton MP, Joint Media Release with the Hon. Malcolm Turnbull MP, Prime Minister – Strengthening the Integrity of Australian Citizenship (Apr. 20, 2017).)

The key changes for citizenship eligibility, as contained in the bill, include:

  • Increasing the general residence requirement as a permanent resident from one year at present to at least four years;
  • Introducing a stand-alone English test involving competent reading, writing, listening and speaking;
  • Strengthening the citizenship test itself with new questions that assess an applicant’s understanding of – and commitment to – our shared values and responsibilities.
  • Applicants will be required to demonstrate their integration into the Australian community.  (Press Release, Hon. Peter Dutton MP, Changes to Citizenship Laws Introduced in Parliament (June 15, 2017).)

Current Law

The requirements for becoming an Australian citizen are contained in the Australian Citizenship Act 2007 (Cth) (Federal Register of Legislation website).  Citizenship is acquired automatically by persons born in Australia to at least one parent who is an Australian citizen or permanent resident.  The other way to obtain citizenship is by application to the responsible Minister (i.e., the Minister for Immigration and Border Protection) in one of four possible situations: citizenship by descent; citizenship as a result of adoption; citizenship by conferral; and resumption of citizenship.  (Id. s 2A.)  In order for a person who is aged 18 or over to obtain citizenship by conferral, he or she generally needs to fulfill the following requirements:

  • be a permanent resident and satisfy either the general residence requirement (being present in the country for at least the past four years, including being a permanent resident for the 12-month period before making the application (id. s 22)), the special residence requirement (engaging in, e.g., activities beneficial to Australia (id. ss 22A-22C)), or the defense service requirement (id. s 23);
  • understand the nature of the application;
  • possess a “basic knowledge of the English language”;
  • have an “adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship”;
  • be likely to reside, or continue to reside, in Australia, or maintain a “close and continuing” relationship with the country; and
  • be of good character.  (Id. s 21(2).)

In order for an applicant to show that he or she understands the nature of the application, possesses a basic knowledge of English, and has an adequate knowledge of Australia and the privileges and responsibilities of citizenship, he or she must take a citizenship test.  (Id. ss 21(2A) & 23A.)  In addition, before the Minister can approve a citizenship application, persons aged 16 or over must make a “pledge of commitment” in accordance with the arrangements prescribed by regulations.  (Id. ss 26 & 27; Australian Citizenship Regulation 2016 (Cth), Federal Register of Legislation website; Australian Citizenship Pledge, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (last visited June 20, 2017).)

In situations other than where a person acquired citizenship automatically, the Minister is able to revoke a person’s citizenship in circumstances involving certain offenses or fraud.  (Australian Citizenship Act 2007 (Cth) s 34.)

Proposed Changes in the Bill

The bill would change several of the requirements for obtaining citizenship, by:

  • clarifying that “Australian values” (which include the shared values of respect, equality and freedom) is a subject area that must be tested in the citizenship test and only successful completion of the citizenship test enables the Minister to be satisfied that a person has an adequate knowledge of Australia, Australian values, and of the responsibilities and privileges of Australian citizenship  … ” (Australian Citizenship Legislation Amendment (…) Bill 2017, Explanatory Memorandum (explanation of item 42), Federal Register of Legislation website.)  In addition, applicants for citizenship would be required to sign an “Australian Values Statement” as part of their application. ( Id. (explanation of items 118 & 119).)
  • removing the English language testing requirement from the citizenship test and instead giving the Minister the power to determine “the circumstances in which a person has competent English and the information or documentation relating to a person having competent English.” (Id. (explanation of item 45); see also id. (explanation of item 53).)
  • requiring all applicants for citizenship by conferral, not just those aged 18 years or older, to be of good character at the time of the Minister’s decision on the application. (Id. (explanation of item 52).)
  • increasing the general residence requirement to the full four years preceding an application for citizenship by conferral. (Id. (explanation of item 54).)
  • renaming the “pledge of commitment” as “pledge of allegiance” and extending the requirement for such a pledge to all persons aged 16 or over who apply for citizenship, including applicants for citizenship by descent or adoption.  (Id. (explanation of items 3, 24, 25 & 33).)

Opposition to the Bill in the Parliament

On June 20, 2017, the Labor Party spokesman on citizenship issues said that the caucus had unanimously agreed to vote against the bill in its current form.  The Party particularly objected to the requirement for a longer period of residence and to the new English-language proficiency standard in the bill.  In regard to the latter change, the spokesman said that it was a “bizarre act of snobbery” and many Australians would struggle to meet the requirement.  (Stephen Dziedzic, Citizenship Laws: Government in Fight to Pass Tough New Rules After Labor Resolves to Block Changes, ABC NEWS (June 20, 2017); Claire Bickers, Citizenship Test: Labor to Fight Malcolm Turnbull’s Citizenship Test Changes, NEWS.COM.AU (June 20, 2017).)  He also said that the proposed changes in the bill had nothing to do with national security as claimed by the government.  (Labor to Oppose Citizenship Changes, SKY NEWS (June 20, 2017).)

The Green Party has also stated that it will vote “no” on the bill.  Therefore, the government will need the support of ten senators from other parties, or independents, in order to pass the amendments.  (Dziedzic, supra.)

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Denmark: List of Religious Extremists Banned from Denmark Published

(June 21, 2017) On June 15, 2017, Denmark edited its “National Sanction List” of religious preachers who are prohibited from entering Denmark.  The original list, created on May 2, 2017, by the Danish Immigration Service, bans extreme religious advocates from entering Denmark.  The list is instituted by virtue of an amendment to the Aliens Act that included an article 29c, adopted on December 27, 2016, to grant power to the Danish Immigration Service to ban certain religious advocates from entering the country.  (1 § Lov nr. 1743 af 27. december 2016,  Lov om ændring af udlændingeloven [Act No. 1743 of December 27, 2016, on Amending the Aliens Act] , FOLKETINGSTIDENDE C (Dec. 19, 2017); The National Sanction List, NEW TO DENMARK (May 2, 2017); Press Release, Yderligere to hadprædikanter kommer på sanktionslisten [Additional Hate Preachers Added to the National Sanctions List] (June 15, 2017), Immigration and Integration Ministry website.)

Article 29c of the Aliens Act now reads

Art. 1.  An alien can be put on a [sanctions] list if the alien is a religious preacher or in another way [works to] expand a religion or faith, and concern for public order in Denmark requires that the alien not be permitted to stay in this country.  The placement on the list is made for two years and can be extended for two years at a time.  An alien who is covered by European Union travel rules, i.e., EU citizens covered under the freedom of movement of people, or who has a residence permit in this country cannot be placed on the list.

Art. 2.  When considering if an alien should be registered on the sanctions list the Immigration Service does not need to make the alien aware of any information that the state has about him or her, as otherwise required by article 19 of the Danish Public Administration Act.

Art. 3.  The listing is effective from the time of publication in the Statitidende [the Danish official gazette], unless the person added to the list has already been notified of the action.

Art. 4.  The list can be made public with information on the name, nationality, date of birth, country of residence, and facial photograph of the persons listed.

Art. 5.  At the request of the alien, the Immigration Service will retry the decision to list him or her.  Application for review does not delay the addition onto the list.  (§ 29c Aliens Act, LBK [Lovbekendtgørelse] nr 412 af 09/05/2016 Bekendtgørelse af udlændingeloven [Act No. 412 of May 9, 2016, on Announcement of the Aliens Act], RETSINFORMATION; Act No. 1743 of December 27, 2016, on Amending the Aliens Act (translation by author).)

Violators of the ban who enter Denmark are subject to a fine or a prison sentence of up to three years (§ 1 Lov nr 1723 af 27/12/2016 om ændring af straffeloven [Act No. 1723 of December 27, 2016, on Amendment of the Penal Code], RETSINFORMATION; LBK nr 1052 af 04/07/2016 (Straffeloven) [LBK No. 1052 of July 4, 2016 (Penal Code)] (as amended), RETSINFORMATION.)

Currently there are eight preachers (seven Muslims and one Christian) with their names and photographs on the list.  The list does not specify the religion of the banned preachers.  (The National Sanction List – Religious Preachers with Entry Ban, NEW TO DENMARK (June 15, 2017); Denmark Bans Six Hate Preachers, Including Five Muslims, THE LOCAL (May 2, 2017); Stephen Gadd, Two New Extremist Preachers Banned from Entering Denmark, CHP POST ONLINE (June 15, 2017).)

The purpose of the list is to prevent hate preachers who “want to undermine Danish law and values and support parallel legal systems” from entering Denmark.  (L 48 Forslag til lov om ændring af udlændingeloven [L 48 Proposal for Act on Amendments to the Aliens Act], Folketinget (Danish Parliament) website.)  The list is the product of a 2016 political agreement on the subject of excluding extremist clerics.  (Aftale mellem regeringen og Socialdemokraterne, Dansk Fol-keparti og Det Konservative Folkeparti om initiativer rettet mod religiøse forkyndere, som søger at undergrave danske love og værdier og understøtte parallelle retsopfattelser [Agreement Between the Government and the Social Democrats, Danish People’s Party, Conservative People’s Party on Initiatives Aimed at Religious Preachers Who Seek to Undermine Danish Law and Values and Support Parallel Legal Systems] (May 31, 2016), KIRKEMINISTERIET [Ministry of Ecclesiastical Affairs].)

Through that agreement, Denmark has also established an “awareness list,” which is not made public and may include persons who are EU citizens who have a right to visit Denmark. Neither of the lists may include Danish citizens. (Id.; The National Sanction List, supra; Inger Støjberg, Skriftlig fremsættelse (9. november 2016) (2016/1 SF.L L 48) [Nov. 9, 2016, Written Proclamation 1 to Law Proposal No. 48 of 2016], RETSINFORMATION)

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Taiwan: New Indigenous Languages Act

(June 21, 2017) On June 14, 2017, the Republic of China on Taiwan government promulgated the Indigenous Languages Development Act in order to “achieve historical justice, further preserve and promote the indigenous languages, and guarantee that the languages are used and passed down … .”  (Indigenous Languages Development Act (May 26, 2017), art. 1, Legislative Yuan website (in Chinese); Indigenous Languages Development Act Takes Effect, TAIWAN TODAY (June 15, 2017).)  The Act is in 30 articles and took effect on the day of promulgation.  (Indigenous Languages Development Act, art. 30.)

The Act defines an indigenous language as a language traditionally used by an indigenous people and the words and symbols used to record that language.  A local dialect of an indigenous language is an indigenous language used in indigenous tribal areas.  (Indigenous Languages Development Act, art. 2 ¶ 1(1-4).)  The Council for Indigenous Peoples (CIP), the competent government authority at the central level, is responsible for formulating policies for the development of indigenous languages and giving priority to the revitalization of the endangered ones.  (Id. arts. 3 & 7; About CIP (last visited June 19, 2017).)  Under the Indigenous Peoples Basic Law, “indigenous peoples” are defined as

the traditional peoples who have inhibited in Taiwan and are subject to the state’s jurisdiction, including Amis tribe, Atayal tribe, Paiwan tribe, Bunun tribe, Puyuma tribe, Rukai tribe, Tsou tribe, Saisiyat tribe, Yami tribe, Tsao tribe, Kavalan tribe, Taroko tribe and any other tribes who regard themselves as indigenous peoples and obtain the approval of the central indigenous authority upon application.  (Indigenous Peoples Basic Law (promulgated on Feb. 5, 2005, as amended on Dec. 16, 2015), Laws & Regulations Database of the Republic of China on Taiwan (ROC Database).)

The CIP is to consult indigenous peoples in researching and developing new expressions, compiling dictionaries, building indigenous language databases, and actively preserving the indigenous language corpuses.  (Indigenous Languages Development Act, art. 9.)  In order to handle the research and development of indigenous languages, the CIP is to set aside funds and accept donations from private individuals, legal persons, or groups to establish the Foundation for the Research and Development of Indigenous Languages, to be governed by a separate law.  (Id. art. 27.)

The Act provides that indigenous peoples can use their dialects in administrative and legal affairs handled by government agencies and in judicial proceedings to express their views, and the government agency concerned should provide translation services.  The CIP is to establish a database of indigenous language experts to meet the need for translators.  (Id. art. 13.)  It is also to compile, published in the indigenous languages, ordinances related to indigenous peoples’ affairs.  (Id. art. 17 ¶ 1.)  Local government agencies, schools, and public facilities in indigenous areas, some 55 townships throughout Taiwan, “can also compose official documents in indigenous languages as well as Chinese.”  (Indigenous Languages Development Act Takes Effect, supra; Indigenous Languages Development Act, art. 14.)

Signage for government agencies, schools, and public facilities in areas of indigenous peoples must be in the local indigenous language and signage for the local topography, monuments, tribes, streets, and public facilities in such regions should feature the local dialect and traditional indigenous names.  (Id. art. 16 ¶¶ 1 & 2.)

The Act further provides that schools should offer indigenous language courses in order to meet the needs of aboriginal students and encourage the teaching of indigenous languages (id. art. 19), train indigenous language teachers (id. art. 22), and promote academic research in indigenous languages by encouraging tertiary institutions to set up courses on indigenous languages and establish departments or degree programs related to the languages of indigenous peoples (id. art. 20).  The Act requires state-run indigenous media outlets to produce programs and publications to promote and teach indigenous languages (id. art. 23), and central and local authorities are to assist, reward, and subsidize the film, television, advertising, and radio broadcasts using indigenous languages (id. art. 24). 

Legal Background of the Act

One of the legal bases for the Act is article 10 of the Additional Articles of the Constitution, which states:

The State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of the aborigines.  The State shall also guarantee and provide assistance and encouragement for aboriginal education, culture, transportation, water conservation, health and medical care, economic activity, land, and social welfare, measures for which shall be established by law.  The same protection and assistance shall be given to the people of the Penghu, Kinmen, and Matsu areas.  (Additional Articles of the Constitution of the Republic of China on Taiwan (announced May 1, 1991, as last amended June 10, 2005),  art. 10 ¶ 11, ROC Database.)

The other legal basis is article 9 of the Indigenous People’s Basic Law of 2005, which provides: “[t]he development of indigenous language shall be stipulated by law.”

Among other pieces of legislation previously enacted to advance aboriginal rights and cultures in Taiwan are the Indigenous Traditional Intellectual Creations Protection Act of 2007 (promulgated on Dec. 26, 2007, as amended on Feb. 4, 2015) and the Indigenous Peoples Employment Rights Protection Act (promulgated on Oct. 31, 2001, as amended on Feb. 4, 2015) (both in ROC Database).  The 2001 Status Act for Indigenous Peoples was adopted with the stated aim of recognizing the status of indigenous peoples and protecting their rights.  (Status Act for Indigenous Peoples (promulgated on Jan. 17, 2001, as last amended on Dec. 3, 2008), ROC Database.  See also Wendy Zeldin, Taiwan: Draft Legislation on Indigenous Language Protection, GLOBAL LEGAL MONITOR (GLM) (Dec. 3, 2015).)

Background on Indigenous People in Taiwan

According to the CIP, “there are 42 dialects of Taiwan’s 16 officially recognized indigenous languages,” and of those languages, “Saisiyat is listed as severely endangered on the UNESCO [United Nations Educational, Scientific and Cultural Organization] atlas of endangered languages, while Kanakanavu, Kavalan, Hla’alua and Thao are designated as critically endangered.”  (Indigenous Languages Development Act Takes Effect, supra.)  UNESCO has also reportedly deemed Bunun to be “definitely endangered” and eight other of the languages (Amis, Atayal, Paiwan, Puyuma, Rukai, Truku, Tao, and Tsou) to be “vulnerable.”  (Id.; UNESCO Atlas of the World’s Languages in Danger (last updated June 13, 2017).)

The CIP is quoted as saying that Taiwan’s indigenous languages “play a crucial role in understanding the distribution of Austronesian languages in the Asia-Pacific region,” because research indicates that the island is “the ancestral homeland of Austronesian-speaking peoples.”  According to CIP statistics, about 530,000 persons, or 2.3% of Taiwan’s total population, belong to the tribes associated with the 16 recognized indigenous languages, and the presence of indigenous Malayo-Polynesian peoples in Taiwan reportedly dates back 12,000 to 15,000 years.  (Id.)

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