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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.

Denmark: Green Card Law Amended

(May 25, 2016) Denmark has reversed a proposed change to the law that covers the country’s “Green Card Scheme” and will now allow current holders of green cards to apply to have their status extended until June 10, 2018. The revision will come into force on June 10, 2016, and will permit current holders of green cards to apply to renew their status for two years. (Christian W.,  Green Card Law Amended Following Demonstration, CPH POST ONLINE (May 20, 2016).) The purpose of the introduction of the program was to attract foreign professionals to work in the country. (Denmark to Overhaul Green Card Scheme, THE LOCAL (June 27, 2014).) The green card program is included in the Aliens (Consolidated) Act. (Consolidation Act No. 785 (Aug. 10, 2009), art. 9a, DANISH LAW IN ENGLISH  (unofficial translation).)

Green Card Scheme

Denmark’s green card program allows immigrants to obtain residence permits in order to look for and accept work in the country. Once a green card is issued, the individual does not need a separate work permit, and the recipient can work for a salary or do unpaid labor, but cannot run his or her own business in Denmark. The Danish Immigration Service reminds applicants that receiving the card is not a promise of employment; the cardholders must look for jobs. (The Greencard Scheme, NEW TO DENMARK.DK (last updated Apr. 5, 2016).)

Each applicant for a green card is evaluated based on a point system, with applicants needing 100 points to qualify for the card. Points are awarded for educational level, language abilities, and adaptability. Applicants must also show that they can be self-supporting for at least one year, defined as earning at least DKK50,000 (about US$7,540). Those who do not earn at least that amount may lose their residence permits. Residents must also have health insurance for themselves and any family members who reside in Denmark with them, until they are covered by the Danish National Health Insurance. (Id.)

Background

Denmark’s Parliament has for several years been considering various revisions to the green card program due to the problem of professionals coming into the country but not being able to find work in their fields and ending up in menial jobs. According to a study done by the University of Copenhagen, almost 80% of highly educated green card holders either hold unskilled jobs, “work under the table,” or are unemployed. (Denmark to Overhaul Green Card Scheme, supra.)

Recently a number of protests against changing the program have taken place, including a 700-person demonstration in City Hall Square in Copenhagen and a campaign by a number of human rights and immigrant support groups. Aage Kramp, the head of a law firm representing a green card advocacy group, noted that the “various green card and cultural organisations have shown a new ability to work together and organize activities across professional, cultural and religious borders.” Kramp added that the “demonstration became a victory celebration … .” (Christian W., supra.)

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Germany: Law Restricting Airbnb and Other Vacation Rentals Takes Effect in Berlin

(May 24, 2016) On May 1, 2016, a law prohibiting the illegal repurposing of residential housing without a permit took effect in Berlin, following the end of a two-year transitional period. The law aims to combat the growing housing shortage in Berlin.  “Illegal repurposing of residential housing” is defined as use of the entire home as a vacation rental, use for commercial or other professional purposes, structural modification or use in a way that renders it unsuitable as a private dwelling, leaving the dwelling vacant for more than six months, or demolishing the dwelling.  (Gesetz über das Verbot der Zweckentfremdung von Wohnraum [Zweckentfremdungsverbot-Gesetz] [ZwVbG] [Act on the Prohibition of Illegal Repurposing of Housing], Nov. 29, 2013, Gesetz- und Verordnungsblatt für Berlin [BLN GVBl.] [Berlin Gazette of Laws and Ordinances] 2013 at 626, Berliner Vorschrifteninformationssystem; Verordnung über das Verbot der Zweckentfremdung von Wohnraum [Zweckentfremdungsverbot-Verordnung] [ZwVbVO] [Regulation on the Prohibition of Illegal Repurposing of Housing], Mar. 4, 2014, BLN GVBl. 2014 at 73, Berliner Vorschrifteninformationssystem.)

The agency in charge has discretion to grant a permit to allow the repurposing in special circumstances. Home owners without a permit will incur a fine of up to €100,000 (about US$112,000).  In addition, Berlin encourages neighbors to report illegally repurposed apartments on its website.  (Act on the Prohibition of Illegal Repurposing of Housing; Regulation on the Prohibition of Illegal Repurposing of Housing.)

Overview

The Act does not ban all vacation rentals or other ways of repurposing residential housing. Renting out a single room without a permit remains possible, if the owner or tenant still occupies 50% or more of the living space, including the kitchen and bath.  (Act on the Prohibition of Illegal Repurposing of Housing § 2, ¶2, no. 5.)  The burden of proof is on the owner or tenant.  (Id. § 2, ¶ 3.)

Special circumstances that justify the issuance of a permit for repurposing of housing include legitimate private interests that outweigh the public interest of combatting the housing shortage or if a suitable replacement property is provided. The city can charge a fee for the issuance of the permit to compensate for the loss of housing.  (Id. § 3, ¶ 1.)  A legitimate private interest exists if the refusal of a permit would jeopardize the economic existence of the owner/tenant or if the property is not worthy of preservation.  (Id. § 3, ¶ 3.)

Related Developments

The online vacation rental portal Airbnb has petitioned the Berlin government to exempt the company from the law. The Parliamentary State Secretary for Construction and Housing in Berlin, Engelbert Lütke Daldrup, refused the request, saying that the prohibition is needed to prevent an exacerbation of the housing shortage in the city.  He added that he expects Airbnb to act in accordance with the law and to remind its users that even short-term rentals require a permit and that there are high fines for a violation of the law.  (Press Release, Senatsverwaltung für Stadtentwicklung und Umwelt [Senate Administration for Urban Development and the Environment], Zweckentfremdungsverbot: Keine Ausnahme für Ferienwohnungsportal Airbnb [Prohibition on Illegal Repurposing: No Exception for Vacation Rental Portal Airbnb] (Mar. 24, 2016), BERLIN.DE.)

As a result of the law’s adoption, after the two-year transitional period ended, Airbnb listings in Berlin dropped by 40% in one month. (Matt Payton, Berlin Stops Airbnb Renting Apartments to Tourists to Protect Affordable Housing, INDEPENDENT (May 1, 2016).)

Wimdu, a competitor of Airbnb, together with the company ApartmentAllianz, has filed a lawsuit against Berlin in the Administrative Court of Berlin, claiming that the law violates article 12 (freedom of occupation) and article 14 (property) of the German Basic Law, the country’s constitution. A decision is expected in the summer.  (Press Release, Wimdu, Wimdu hat gegen Verbot von Ferienwohnungen Klage gegen Stadt Berlin eingereicht – rasche Entscheidung wird erhofft [Wimdu Has Filed a Lawsuit Against the City of Berlin Against the Prohibition to Use Homes as Vacation Rentals – We Hope for a Swift Decision] (Apr. 14, 2016), WIMDU.DE; Basic Law for the Federal Republic of Germany (May 23, 1949, as amended through July 11, 2012), BGBl. I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation).)

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Nepal: Immunization Law Adopted

(May 24, 2016) On January 26, 2016, Nepal’s President, Bidya Devi Bhandari, signed into law legislation on immunization. According to the Sabine Vaccine Institute, the new law is “a landmark piece of legislation that will make the country’s national immunization program more financially sustainable as new, costlier vaccines are introduced.”  (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding (Feb. 3, 2016), Sabin Vaccine Institute website; Bill to Provide Immunization Services, 2071, Constituent Assembly of Nepal website, (in Nepali) (click on PDF for first item on webpage, as last visited May 24, 2016).)

Passage of the law, which took five years, marks the first time in the country’s history that financial independence for the immunization program is attainable. At present, Nepal relies on Gavi, the Vaccine Alliance, to provide financial support for 60-70% of its vaccine purchases, but by 2022 Nepal is expected to attain middle-income status and therefore become ineligible for Gavi support for low-income countries. In the next few years, the country must “establish reliable, domestic financing for immunization.”  (Devendra Gnawali, The Making of Nepal’s Immunization Law, HEALTH AFFAIRS BLOG (Mar. 7, 2016).) Gavi describes itself as “an international organisation – a global Vaccine Alliance, bringing together public and private sectors with the shared goal of creating equal access to new and underused vaccines for children living in the world’s poorest countries.” (About Gavi, the Vaccine Alliance (last visited May 20, 2016).)

The immunization law provides for two domestic, potentially long-term financing methods for the country’s immunization program, one governmental, one private. In selecting the two methods, Nepal studied other countries’ approaches to the problem. Under the first method, the government is mandated to “allocate adequate funding for immunization to the National Immunization Fund,” whose monies will be collected by means of general taxation, with the amount determined by evidence presented to the Ministry of Finance “demonstrating how much money the immunization program needs to sustain current vaccine coverage and associated program operations, and purchase new vaccines.”  (Gnawali, supra.)  Thus far, NPR60 million (about US$550,000) has reportedly been allocated to the Fund; the private sector will manage it. (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding, supra.)

The second financing method set forth in the law, to supplement government funding, is through contributions from domestic private partners to a separate Sustainable Immunization Support Fund, which was created by the Rotary Club of Nepal. However, it has been pointed out, the new law does not address the need to give private partners an incentive, such as a tax credit or exemption, to contribute to the Fund, a problem for which a separate legislative solution is being contemplated.  (Gnawali, supra.)

To ensure the proper allocation of funds, the law also provides for oversight of both funds. A newly established Parliamentary Caucus on the Sustainable Immunization Program will oversee the private fund, and there will also be parliamentary monitoring of the private management of the National Immunization Fund.  (Id.)

There are further steps to be taken, however. It was reported in early March that the government had less than three months to prepare the necessary implementing regulations for the law and to then find the means in addition to taxation to finance the National Immunization Fund.  In addition, the government has to justify to the Ministry of Finance the budget amounts requested.  (Id.)

Reactions to the Legislation

According to Hon. Ranju Kumari Jha, Chairperson of the Nepali Parliamentary Committee on Women, Children, Senior Citizen and Social Welfare, “[t]his legislation is an important milestone for Nepal in protecting children’s rights to getting quality immunization service; increasing country ownership; and sustaining the national immunization program by securing adequate funding.” (Nepal Enacts Bill to Strengthen National Immunization Program, Reduce Dependency on External Funding, supra.) Another commentator averred that the collective action carried out by Nepal’s Parliament, the Ministry of Health, and the Ministry of Finance to develop and pass the law is an experience “all other countries can learn from.”  (Gnawali, supra.)

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Sri Lanka: Proposal to Raise Minimum Age of Criminal Liability

(May 23, 2016) It was announced on May 19, 2016, that the Cabinet of ministers of Sri Lanka has approved a proposal to amend the country’s Penal Code, to change the age of criminal responsibility. (Sri Lanka to Amend Penal Code to Increase Minimum Age for Criminal Responsibility, COLOMBO PAGE (May 19, 2016).) At present, the Penal Code allows anyone eight years of age or older to be held responsible for criminal acts. (Penal Code (Jan. 1, 1885, as amended through 2006), REFWORLD, art. 5 (a).) It is the general practice in Sri Lanka for legislation to begin with draft preparation by the executive branch agencies before the matter is considered by the legislature. (Therese Perera, Legislative Drafting in Sri Lanka, LOOPHOLE (May 2011).)

Wijayadasa Rajapaksha, the Minister of Justice, has suggested raising the minimum age of criminal responsibility to 12, arguing that this standard is more consistent with that applied in other countries. Furthermore, the Cabinet approved a provision in which children between the ages of 12 and 14 would face criminal responsibility only after a magistrate determined that they had the necessary maturity or knowledge to form the intent to commit a crime. (Sri Lanka to Amend Penal Code to Increase Minimum Age for Criminal Responsibility, supra.)

According to a report published by the Child Rights International Network, the minimum age of criminal responsibility in what the report includes as Asian countries ranges from 7 (e.g., in Lebanon, Pakistan, and Yemen) to 15 (e.g., in Bahrain and the Philippines). A number of jurisdictions set the age generally at 16, but permit charges to be laid in specified cases for those as young as 14 (e.g., China, Kazakhstan, and Vietnam). (Minimum Ages of Criminal Responsibility in Asia, Child Rights International Network website (last visited May 19, 2016).)

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Zambia: Parliament Makes Further Cuts to Royalty Rates on Production of Minerals

(May 23, 2016) On May 4, 2016, Zambia’s 158member unicameral Parliament passed the Mines and Minerals Development (Amendment) Bill, 2016, to amend the Mines and Minerals Development Act 2015.  (Martine Chileshe, Zambia Mines and Mineral Development Act 2015 – Amendment, TAX NEWS SERVICE (June 30, 2015), International Bureau of Fiscal Documentation online subscription database.)  According to the country’s Constitution, before it can be enacted, the legislation will need the President’s consent.  (Constitution of Zambia (Amendment) Act No. 2 of 2016 (Jan. 5, 2016), § 66, Zambia Parliament website.)  If enacted, the legislation will take effect retroactively as of April 1, 2016.  (The Mines and Minerals Development (Amendment) Bill, 2016, N.A.B. 6, 2016 (Mar. 10, 2016), § 1, Zambia Parliament website.)

Background

If enacted, the legislation would change the royalty rates on production of minerals for the third time in two years.  Under a 2008 Act, royalty rates on production of minerals applicable to license holders were set as follows:

Type Base Rate
base metals norm value 3%
industrial minerals gross value 3%
energy minerals gross value 3%
precious minerals norm value 5%
gemstones gross value 5%

(The Mines and Minerals Development Act, 2008 (Apr. 4, 2008), § 133, Zambia Legal Information Institute website.)  “Norm value” under the Act is “the monthly average cash price per metric ton,” determined by various specified methods, multiplied, e.g., by the amount of the metal or recoverable metal sold; ”gross value” is ”the realised price for a sale … at the point of export from Zambia or point of delivery within Zambia,” subject to certain conditions imposed on the realized price.  (Id. § 133(3).)

In 2014, Zambia amended the 2008 Act and dramatically increased the rates.  It imposed a royalty rate of 20% on open cast mining operations and 8% on underground mining operations, applied on the normal value of base metals or precious metals and the gross value of gemstones or energy minerals.  (The Mines and Minerals Development (Amendment) Act, No. 11 of 2014 (Dec. 23, 2014), § 3, Food and Agriculture Organization of the United Nations (FAOLEX) website.)  It set the royalty rate on industrial minerals at 6% of the gross value of the minerals.  (Id.)  The Act also imposed royalties on production of minerals by unlicensed persons, being 6% of the gross value for industrial minerals and 20% of the normal or gross value for other minerals.  (Id.)

In 2015, Zambia enacted the Mines and Minerals Development Act, 2015, the law currently in force, and substantially reduced royalties payable on production of minerals for both open cast and underground mining operations.  Under this Act, holders of a mining license are subject to a royalty rate of 9% for open cast mining operations and 6% for underground operations, applied to the normal value of the base metals or precious metals and the gross value of the gemstones or energy minerals.  (The Mines and Minerals Development Act, 2015 (Aug. 14, 2015), § 89, Zambia Parliament website.)  The royalty payable on industrial minerals remains unchanged at 6% of the gross value of the minerals.  (Id.; see also Wendy Zeldin, Zambia: Mines and Minerals Bill and Related Income Tax Amendment Bill Tabled in Parliament, GLOBAL LEGAL MONITOR (July 8, 2015).)

Royalties payable on production of minerals by persons who do not hold a mining license were also reduced.  Such persons are now expected to pay a royalty rate of 9% of the normal value for base metals or precious metals and 9% of the gross value of gemstones or energy minerals.  (The Mines and Minerals Development Act, 2015, § 89.)  The royalty rate payable for industrial minerals remains the same.  (Id.)

Proposed Changes

If enacted in its current form, the legislation will further reduce the royalties on production of minerals by adopting the following rates:

Type Base Rate
base metals (excluding copper) norm value  5%
energy & industrial minerals gross value  5%
gemstones gross value  6%
precious metals norml value  6%

(The Mines and Minerals Development (Amendment) Bill, 2016, § 2.)  The definition of norm value  under the new legislation is essentially the same as that under the 2008 Act; the gross value is “the realised price for a sale … at the point of export from Zambia or point of delivery within Zambia,” with no conditions included about the realized price.  (The Mines and Minerals Development (Amendment) Bill, 2016, § 2(5).)

The bill will lower the royalty rate for copper from open cast and underground mining operations by setting it at a minimum of 4% and a maximum of 6%, depending on the prevailing price for copper:

Normal Price per Ton Base Rate
below US$4,500 norm value  4%
between US$4,500 and 5,999 norm value  5%
over (inclusive) US$6,000 norm value  6%

(Id.) The legislation will also cut the royalties payable by unlicensed persons by eliminating the distinction in rates between licensees and non-licensees.  (Id. § 2.)  

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