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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.

Sweden: Criminal Rape Investigation of Julian Assange Reopened

(May 24, 2019) On May 13, 2019, the Swedish Prosecution Authority announced that it would reopen the investigation into the accusations of rape against Julian Assange. (Press Release, Åklagarmyndigheten, Förundersökningen i Assangeärendet återupptas [Swedish Prosecution Authority, Preliminary Investigation in the Assange Case Reopened] (May 13, 2019); Åklagarmyndigheten, Beslut [Decision] AM-131226-10 (May 13, 2019), Swedish Prosecution Authority website.)

Background

In December 2015, Sweden and the Republic of Ecuador made an agreement on mutual legal help in criminal cases. (Avtal med Ecuador om ömsesidig rättslig hjälp i brottmål [Agreement with Ecuador on Mutual Legal Assistance in Criminal Cases] Sveriges internationella överenskommelser [SÖ, Sweden’s International Agreements] 2015:30.) Under that agreement, an interrogation (förhör) of Julian Assange was conducted by an Ecuadorian prosecutor at the Ecuadorian Embassy in London. Swedish police and prosecutors were present. (Beslut AM-131226-10.)

In 2017 the Swedish Prosecution Authority decided to discontinue the investigation because there was “no reason to believe the decision to surrender [Assange] to Sweden can be executed in the foreseeable future.” (Åklagarmyndigheten, Decision 19 May 2017 (unofficial English translation); see also Elin Hofverberg, Sweden: Swedish Prosecutors Discontinue Assange Investigation, GLOBAL LEGAL MONITOR (June 2, 2017).)

Following Assange’s arrest by British authorities, the counsel for the plaintiff (målsägandens ombud) requested that the preliminary investigation (förundersökning) of the rape charges be resumed and that the investigation (utredning) be continued.

The Prosecution Authority therefore reconsidered the reasons for discontinuing the investigation and found that the following events now made it possible for Assange to be transferred to Sweden: the UK authority’s arrest of Assange; his sentencing to 50 weeks of imprisonment in the UK; and the request by the United States to extradite Assange to the United States, requiring a formal request to that effect  presented no later than June 14, 2019. (Beslut AM-131226-10.)

The Prosecution Authority believes that several avenues for the continued investigation exist. For example, Swedish law allows for an interview to take place via video link, which would allow UK authorities to keep Assange in the UK while the Swedish prosecutor interviewed him from Sweden. Such a procedure, however, would require Assange’s consent (samtycke). (LAG OM EN EUROPEISK UTREDNINGSORDER [ACT ON AN EUROPEAN ARREST WARRANT] (SVENSK FORFATTNINGSSAMLING [SFS, SWEDISH CODE OF STATUTES] 2017:1000), Riksdagen [Parliament] website; Beslut AM-131226-10.)

In consideration of the circumstances mentioned above, the Prosecution Authority now believes that the conditions for a continuation of the investigation and completion of the investigation are feasible. (Beslut AM-131226-10.)

The Prosecution Authority also noted that all the conditions for an arrest warrant still apply. Assange is still a suspect, on probable cause, in the Swedish rape case (a crime with a prescribed sentence of more than one year). In addition, as Assange is now under arrest in the United Kingdom, the conditions for the fulfillment of a European Arrest Warrant can be met. (Beslut AM-131226-10.)

However, the Prosecution Authority in its decision noted that if UK authorities are faced with competing arrest warrants from Sweden and the United States, it is the British authorities that would decide to which country Assange should be delivered. (Beslut AM-131226-10.)

 

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Germany: Prescription Drugs Cannot Be Sold Via Video Chat and Vending Machines

(May 24, 2019) In a decision published on May 11, 2019, the Administrative Court of Karlsruhe (Verwaltungsgericht Karlsruhe, VG Karlsruhe) held that the Dutch mail order pharmacy DocMorris cannot use vending machines in Germany to sell drugs that are authorized for sale only through pharmacies. The Court stated that vending-machine sales were not covered by the Dutch government’s authorization of the plaintiff to operate a mail order pharmacy, but required an authorization to operate a local pharmacy. (VG Karlsruhe, Apr. 4, 2019, Docket No. 3 K 5393/17, ECLI:DE:VGKARLS:2019:0404.3K5393.17.00, Landesrechtsprechung Baden-Württemberg website (in German); Arzneimittelgesetz [AMG] [Medicinal Products Act], Dec. 12, 2005, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3394, § 43, para. 1, § 73, para. 1, as amended, German Laws Online website.)

Applicable Law

Section 43 of the German Medicinal Products Act provides that “[m]edicinal products […], which are not released for trade outside of pharmacies […] may[…] be placed on the market professionally or commercially to the consumer exclusively in pharmacies and not by sale at a distance without official authorisation.”

Section 73, paragraph 1, states that

(1) [m]edicinal products which are subject to compulsory marketing authorisation […] may only be introduced into the purview of the present Act, if they are authorised for marketing […] or if they have been exempted […] and if

1a.       in the case of shipment to the final consumer, the medicinal product is shipped, according to the German regulations governing sale at a distance or electronic commerce, by a pharmacy of a Member State of the European Union […] which is authorised to conduct sale at a distance under its national laws, in so far as they correspond to German pharmacy law as regards the provisions governing sale at a distance, or according to the German Act on Pharmaceutical Services.

Facts of the Case

The plaintiff is a Dutch mail order pharmacy. (VG Karlsruhe para. 2.) Since April 19, 2017, the plaintiff has offered pharmaceutical video consultations with drug delivery in the municipality of Hüffenhardt, Germany. (Id. para. 3.) For that purpose, customers, who were sitting in an office space formerly occupied by a pharmacy in Hüffenhardt, were connected via video chat to a pharmacist or pharmaceutical assistant in the Netherlands. After the consultation, the Dutch pharmacist or pharmaceutical assistant would check the scanned-in prescription, among other things, and decide whether to dispense the requested drug via a drug vending machine located on the premises and connected to the pharmaceutical warehouse in Hüffenhardt. (Id. paras. 5–7.)

On April 21, 2017, the Regierungspräsidium Karlsruhe, the head of the administrative region of Karlsruhe, decided that the plaintiff would no longer be allowed to use vending machines to dispense drugs that are required to be sold through pharmacies, as this was a violation of the German Medicinal Products Act and was not covered by the plaintiff’s authorization to conduct a mail order business. (Id. paras. 3, 11, 12.)

On April 26, 2017, the plaintiff filed suit with the Administrative Court of Karlsruhe against the prohibition order. (Id. para. 15.) The plaintiff mainly argued that dispensing prescription drugs via video chat was covered by its Dutch authorization to operate a mail order pharmacy because the term “mail order” must be broadly interpreted and includes innovative new procedures, such as same day delivery. (Id. para. 16.) In addition, the plaintiff alleged that the prohibition violated European Union (EU) law. (Id. paras. 22 & 23.)

Decision

The Court held that the Regierungspräsidium Karlsruhe was justified in prohibiting the distribution of prescription drugs via video chat and vending machine. It stated that the distribution of prescription drugs violated section 43, paragraph 1 of the Medicinal Products Act, because neither did the plaintiff have an authorization to operate a traditional local pharmacy nor did the distribution via vending machine constitute a sale by mail order. (Id. para. 46.) According to its own submission, the plaintiff did not have an authorization to operate a traditional local pharmacy and did not consider it necessary. (Id. para. 49.)

The Court added that the distribution via vending machine, however, was also not a sale by mail order. It explained that the term “mail order” is not statutorily defined, but it is generally understood as delivering the product to the consumer and not just retrieving it from the connected warehouse and handing it over to the consumer. There is generally a certain time span between the purchase and the handing over of the product. In the case at issue, however, the customer has the possibility to take the product home directly from the place where the video consultation took place. This creates the appearance of a local traditional pharmacy and not a mail order pharmacy. (Id. paras. 56 & 77.)

The Court further held that the prohibition does not violate EU law, in particular the principle of free movement of goods. (Id. para. 121.) Article 34 of the Treaty on the Functioning of the European Union (TFEU) provides that “[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2016 O.J. (C 202) 1, EUR-Lex website.) Article 36 of the TFEU enumerates several grounds on which such restrictions are justified. In the opinion of the Court, the prohibition constitutes a measure having an equivalent effect but is justified on the grounds of protection of the health and life of humans. (VG Karlsruhe paras. 124 & 128.) The Court ruled, in accordance with the jurisprudence of the European Court of Justice, that the requirement that only pharmacists may operate pharmacies and the consequent resulting restriction on the freedom of movement of goods are justified by the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality. (Id. para. 129.) The EU Member States have the power to determine the appropriate level of protection of public health. (Id. paras. 132 & 133.)

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Brazil: City of São Paulo Enacts Decree Regulating Use of Electric Scooters

(May 23, 2019) After a series of accidents involving electric scooters (patinete elétrica), the mayor of the city of São Paulo on May 13, 2019, enacted Decree No. 58,750. This Decree provides for the provisional regulation of sharing services and use of both electric and nonelectric self-propelled personal mobility equipment, scooters, cycles, and similar equipment that are operated by digital platforms in the city of São Paulo. (Legislação Municipal, Prefeitura de São Paulo, Decreto No. 58.750, de 13 de Maio de 2019, São Paulo Mayor’s Office website.)

Decree No. 58,750 determines that companies providing these services must register with the Municipal Department of Mobility and Transportation and prove that their operational structure complies with the rules established in Decree No. 58,750 and regulatory ordinances. (Id. art. 2.) The operational structure includes employees; equipment to be made available to users; infrastructure to collect, perform corrective and preventive maintenance on equipment and attend to users in the event of accidents or equipment failure; and places to collect and store equipment. (Id. art. 2(sole para.).)

The Decree defines the obligations of such companies, which include, but are not limited to, providing users with safety instructions; proving that the company holds civil liability insurance to cover any damages caused to third parties or public assets arising from the use of individual mobility equipment; bearing all damages arising from the rendering of the service, even if generated by a fortuitous event, force majeure, or the deceit or fault of users; and providing data on users in response to requests by the municipal or public security organs investigating crimes, misdemeanors, or accidents. (Id. art. 3.) It also holds the operating companies responsible for providing the necessary equipment for the safety of users, including mandatory certified helmets. (Id. arts. 4 & 7(§ 3).)

The use of self-propelled personal mobility equipment, such as scooters and the like, even if electric, as well as mopeds, electric cycles, and similar equipment, must comply with the traffic rules contained in Resolution Nos. 315/2009 and 465/2013 of the National Traffic Council (CONTRAN) and in the Brazilian Traffic Code and other pertinent legislation, in addition to the provisions of Decree No. 58,750. (Id. art. 7.)

The use of the means of transportation specified in Decree No. 58,750 is allowed only on public roads, bicycle lanes, and cycle paths, with a maximum speed of 20 kph (12 mph). The use of such equipment on sidewalks is prohibited. Equipment parked on sidewalks by users must allow the free movement of pedestrians. It is forbidden to operate the equipment on roads at a speed greater than 40 kph (24 mph). (Id. art. 8.)

The Traffic Authority and agents of the municipal government are to supervise compliance with the provisions of Decree No. 58,750 and other norms of traffic legislation, with the support of the Metropolitan Civil Guard. (Id. art. 10.)

Decree No. 58,750 lists the penalties to be imposed on companies for failing to comply with the obligations set forth in article 3, which includes fines ranging from 100,000 Brazilian reals (R$) (about US$25.00) to R$20,000 (about US$5,000), as well as the loss of license to operate the business. (Id. art. 11.)

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Mexico: Government Announces Legal Position on US Helms-Burton Law

(May 22, 2019) On May 8, 2019, the Mexican government announced it is considering taking measures to address the possibility of lawsuits filed in the US against Mexican companies trafficking in property confiscated by the Cuban government. (Press Release, Department of Foreign Relations, Posicionamiento del Gobierno de México sobre la entrada en vigor del Título III de la Ley Helms-Burton [Position of Mexico’s Government on the Enforceability of Title III of the Helms-Burton Act] (May 8, 2019).)

The government explained that it was spurred to consider such measures by the US government’s announcement in April 2019 that Americans could file lawsuits in US courts under the Helms-Burton Act against entities and persons trafficking in property confiscated by the Cuban government. (Id.; see also Press Release, The White House, President Donald J. Trump Is Taking a Stand for Democracy and Human Rights in the Western Hemisphere – Fact Sheet (Apr. 17, 2019).)

Measures responding to the US law would be taken under the authority of Mexico’s Law on Protecting Commerce and Investment from Foreign Laws. (Ley que Protege el Comercio y la Inversión de Normas Extranjeras que Contravengan el Derecho Internacional [Law on Protecting Commerce and Investment from Foreign Laws], as amended through 2012, DIARIO OFICIAL DE LA FEDERACIÓN (official gazette), Oct. 23, 1996, Mexican House of Representatives website.) The measures contemplated under this Law include the following:

  • Mexico’s Departments of Foreign Relations and Commerce would be permitted to provide advice to sued entities.
  • Mexican courts could deny requests to enforce foreign judgments or arbitral awards rendered under the Helms-Burton Act.
  • Mexican individuals, companies, and agencies would be prohibited from providing information requested from foreign authorities under the Helms-Burton Act, and those who disregard this prohibition would be subject to fines. (Posicionamiento del Gobierno de México sobre la entrada en vigor del Título III de la Ley Helms-Burton, supra.)

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Italy: Legislation in the Event of Brexit Takes Effect

(May 21, 2019) On March 23, 2019, new legislation addressing the potential effects of Brexit entered into force in Italy. (Decree-Law No. 22 of March 25, 2019, Urgent Measures to Ensure Safety, Financial Stability and the Integrity of Markets as well as the Protection of the Health and Freedom of Residence of Italian Citizens and United Kingdom Citizens in case of Brexit) (Decree Law No. 22), GAZZETTA UFFICIALE [G.U., Official gazette], Mar. 25, 2019, G.U. website (in Italian).)

The new legislation approves comprehensive provisions aimed at regulating the possible impacts on multiple stakeholders in the event that the United Kingdom (UK) exits from the European Union (EU) without an accord with the EU (UK withdrawal).

Banks and Investment Firms

The new Law provides that, following the UK withdrawal, UK banks that are authorized to conduct operations in Italy in the same terms that Italian banks are authorized to carry out activities in the UK may continue carrying out such activities after notifying the Bank of Italy. (Decree Law No. 22, art. 3(1)–(2).)

UK banks and UK investment firms that, on the UK withdrawal date, provide investment services and activities in Italy, may continue to perform the same activities only with respect to qualified counterparties and professional clients as provided in applicable legislation. (Id. art. 3(3).)

Banking, financial, and other related entities operating in Italy remain bound by contractual extrajudicial dispute resolution mechanisms after the date of the UK withdrawal. Alternatively, these entities may adhere to other mechanisms established by the EU Commission-approved Fin-Net network. (Id. art. 7(2).)

UK banking institutions operating in Italy through branches will continue to be members of the guarantee systems established for Italian depositors regulated by current banking legislation. (Id. art. 8(1).)

UK payment institutions, fund managers, and investment banks operating in Italy under the current freedom of service regime at the time of the UK withdrawal must cease their activities on that date. (Id. art. 4(1).) To avoid prejudice to their existing clients, these institutions are authorized to carry out operations necessary to close their activities within the shortest possible time and within a maximum of six months from the UK withdrawal date, after complying with applicable contractual notices (Id.)

As an exception, UK banks and investment firms remain authorized to manage existing derivative over-the-counter contracts even if such activities involve the modification of existing contracts or the execution of new contracts. (Id. art. 4(4).)

UK payment institutions, fund managers, and investment banks that are that registered in Italy and that on the date of the UK withdrawal conduct businesses in the UK may continue to operate during the transitional period in accordance with UK legislation. (Id. art. 5(1).)

Electronic Money Institutions

Decree Law No. 22 provides that UK electronic money institutions operating in Italy under the current freedom of service regime at the time of the UK withdrawal must cease their activities on that date (id. art. 4(1)), but those operating through branches in Italy on the UK withdrawal date in accordance with the right of establishment may continue to operate during the transitional period after notifying the Bank of Italy (id. art. 3(5)).

Insurance Companies

Under the new Law, UK insurance companies authorized to operate in Italy on the date of the UK withdrawal will be excluded from the list of EU companies authorized to operate in the country, but will be permitted to carry out activities during the transitional period that are necessary to grant coverage to their insured under existing contracts. (Id. art. 9(1).)

Effective on the date of the UK withdrawal, the insured may withdraw from existing insurance contracts entered into with UK companies, without prejudice to the insured, provided that previous notice has been given to such companies under existing contracts. (Id. art. 9(3).)

Italian insurance and reinsurance companies operating in the UK on the date of the UK withdrawal may continue carrying out their activities in accordance with UK laws. (Id. art. 11(1).)

Pension Fund Investments

Investments arising from UK-based pension funds will continue to enjoy the same legal treatment after the UK withdrawal. (Id. art. 12(1).)

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