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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.

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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Germany: Government Proposes Loss of German Citizenship for Foreign Fighters with Dual Citizenship

(May 20, 2019) On May 3, 2019, the press services of the German Bundestag (parliament) reported that the German government had submitted a draft act to amend the rules on German citizenship so that foreign fighters with dual citizenship would automatically lose their German citizenship. (Press Release, German Bundestag, Loss of German Citizenship (May 3, 2019), German Bundestag website (in German); BT-Drs. 19/9736, German Bundestag website (in German); Staatsangehörigkeitsgesetz [StAG] [Nationality Act], July 22, 1913, REICHSGESETZBLATT [RGBl.] [REICHS LAW GAZETTE] I at 583, as amended, German Laws Online website.)

Content of Proposal

Currently, German citizenship is lost only if a person voluntarily joins the regular armed forces or a comparable armed organization of a foreign state. (Nationality Act § 17, para. 1, no. 5, § 28.) However, going abroad to actively fight for a foreign terrorist militia does not have any consequences. The proposal states that an amendment of the rules is necessary because fighting for a foreign terrorist organization equally means that someone has turned away from Germany and its fundamental values. (BT-Drs. 19/9736, at 1.) German citizenship would not be lost if the person concerned would thereby become stateless or were still a minor. (Id.)

The proposal defines “foreign terrorist militia” as a “paramilitary organized armed organization that, in violation of international law, aims to remove the structures of a foreign state by force and to establish new state or state-like structures in its stead.” (Id. at 4, art. 1, § 28, para. 3.)

The new rules would not apply to foreign ISIS fighters or fighters for other terrorist organizations who have fought for these groups in the past and who would like to return to Germany, as such retroactive rules would be unconstitutional. (Id. at 6.) However, as long as foreign ISIS fighters remain in the areas held by ISIS and the fight resurges after the amendment has entered into force, a loss of citizenship is generally possible. (Id.)

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Italy: Law Regulating Duration of Administrative Processes Ruled Unconstitutional

(May 17, 2019) On February 6, 2019, the Italian Constitutional Court declared article 54, paragraph 2 of Decree-Law No. 112 of June 25, 2008 unconstitutional because the provision establishes an excessive duration for administrative procedures. In its decision, the Court highlighted that all legal procedures must have a reasonable duration. By declaring this provision unconstitutional, the Court was bringing Italian legislation regulating administrative procedures into compliance with European Union (EU) court decisions. (Decision No. 34 of February 6, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Mar. 13, 2019 (in Italian), G.U. website.)

Background of the Case

The Constitutional Court reviewed a constitutional question raised by the Court of Cassation and multiple appellate courts concerning a provision that affected the timing of administrative processes.

The Constitutional Court performed its review in light of article 117 of the Constitution, which provides that “[l]egislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legislation and international obligations,” with 17 areas listed in which the State has “exclusive legislative powers.” (CONSTITUTION OF THE ITALIAN REPUBLIC, Dec. 27, 1947, as amended, Italian Senate website (in Italian), English translation as amended through 2012, Comparative Constitutions Project website.)

Reasoning of the Court

The Constitutional Court considered the principle of reasonableness applicable to the duration of administrative procedures established for damages claims against the public administration. (Decision, considerations of law 2.1 para. 1 & 3 para. 8.) If a party were to avail itself of filing all of the available administrative appeals shortly before their expiration date, that would bring about an unreasonable duration of administrative processes that would damage the other party. (Id.)

The Court cited case law from the EU Human Rights Court accepting the admissibility or preferableness of remedies to prevent making the duration of the administrative procedures excessively long. (Id. considerations of law 6.1, para. 1.) To reach its final determination, the Court also mentioned due process of law considerations as guaranteed by the Italian Constitution. (Id. considerations of law 6.4, para. 2.)

Holding of the Court

The Constitutional Court declared the unconstitutionality of the provision, thus bringing Italian legislation regulating administrative procedures into compliance with EU court decisions by providing for their reasonable duration.

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Italy: Legal Provision Not Allowing Home Detention Ruled Unconstitutional

(May 16, 2019) On April 19, 2019, the Italian Constitutional Court declared unconstitutional article 47-ter, paragraph 1-ter of Law No. 354 of July 26, 1975, because it failed to provide for humanitarian home detention for convicted prisoners experiencing supervening serious mental illnesses. (Decision No. 99 of April 19, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure) (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Apr. 24, 2019) (in Italian), G.U. website; Law No. 354 of July 26, 1975, on the Penitentiary System and the Execution of Privative and Limiting Measures on Freedom, G.U. Aug. 9, 1975 (in Italian), G.U. website.)

Background of the Case

The Court of Cassation raised the issue of the constitutionality of article 47-ter, paragraph 1-ter of Law No. 354 of 1975 on the grounds that it did not provide for the benefit of home detention in the case of a convicted prisoner with serious mental illness that arose during the application of the penalty. (Decision, considerations of fact 1, para. 1.) The existing legislation allowed for home detention only in the case of serious physical—not mental—illness. (Id. considerations of fact 1, para. 2.)  In the underlying case, the convicted person had been sentenced to more than four years of imprisonment, which left him ineligible for measures alternative to incarceration. (Id. considerations of law 3.3, para. 1.) The prisoner presented severe mixed personality disorder, with predominant borderline disposition, psychopathological decompensation, and serious self-injuring behavior. (Id. considerations of fact 1, para. 2.)  For these reasons, the claimants argued that detention in regular jail facilities, as opposed to home detention, constituted inhumane treatment and thus violated several constitutional guarantees. (Id. considerations of fact 1, para. 4.)

Constitutional Question Posed

The Constitutional Court performed its review in light of articles 2, 3, 27, and 32 of the Constitution, which, in general, prohibit inhumane treatment and establish a convicted prisoner’s right to health. (Id. considerations of fact 4 para. 1 & 5 para. 2; CONSTITUTION OF THE ITALIAN REPUBLIC, Dec. 27, 1947, as amended, Italian Senate website (in Italian), English translation as amended through 2012, Comparative Constitutions Project website.)

Reasoning of the Court

The Court reasoned that recent legislative trends in Italy (e.g., the closure of judicial psychiatric hospitals and their replacement with other alternative detention measures) had created a historic momentum that caused the implicit derogation of the challenged provision. (Id. considerations of fact 3.1, para. 1.) Additionally, the Court noted a change in the cultural and scientific paradigm on the treatment of mental health issues from mere custody to therapy. (Id. considerations of law 3.1, para. 2.) The Court sustained that existing safety measures affecting persons subject to the criminal justice system cover only the situation of those who, on the basis of mental health issues, have been found not guilty or have received a reduced penalty, but not those who experience serious mental issues during compliance with their incarceration penalties. (Id. considerations of law 3.2, para. 2.) In this context, the Court reasoned that conditions are such that a “humanitarian” home detention is completely compatible with the public safety considerations connected to criminal punishment. (Id. considerations of law 2.2, para. 1.) Finally, the Court held that, according to current legislation, home detention in fact constitutes a modality for the execution of a penalty, a restriction on personal freedom resulting from a criminal punishment subject to monitoring by the authorities. (Id. considerations of law 5.1, para. 3.)

Holding of the Court

The Constitutional Court declared article 47-ter, paragraph 1-ter of Law No. 354 of 1975 unconstitutional because it contained no provision for a tribunal to authorize home detention for a convicted prisoner suffering from supervening mental illness who had more than four years of incarceration remaining to serve on his or her sentence.

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Germany: De Facto Complete Exclusion of Stepchild Adoption for Unmarried Couples Held Unconstitutional

(May 15, 2019) In a decision published on May 2, 2019, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the fact that an unmarried stepparent cannot adopt his or her partner’s child without terminating the child’s legal relationship to the latter, thereby de facto excluding stepchild adoption in such cases, violates the equal treatment clause of article 3, paragraph 1 of the German Basic Law. The Court declared the relevant Civil Code provisions unconstitutional and instructed the legislature to enact new provisions by March 31, 2020. Until the new rules are enacted, the current law is not applicable to stepchild adoptions for unmarried couples. (BVerfG, Mar. 26, 2019, Docket No. 1 BvR 673/17, ECLI:DE:BVerfG:2019:rs20190326.1bvr067317, BVerfG website (in German); Press Release, BVerfG, Complete Exclusion of Non-Marital Families From Stepchild Adoption Is Unconstitutional (May 2, 2019), BVerfG website; Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, art. 3, para. 1, German Laws Online website; BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; corrected in 2003 BGBl. I at 738, as amended, § 1754, paras. 1 & 2, § 1755, paras. 1 & 2, German Laws Online website.)

Applicable Law

The relevant provisions of the German Civil Code currently provide that if a married couple adopts a child or if a spouse adopts the child of the other spouse, the child becomes the legal child of both spouses. In all other adoption cases, the child becomes the child of only the adoptive parent. (CIVIL CODE § 1754, paras. 1 & 2.) Furthermore, when the adoption takes effect, the relationship of the child and its descendants to the previous relatives is extinguished, with the exception of cases in which one spouse adopts the child of the other spouse. In such cases, the legal relationship is extinguished only with regard to the other relatives. (Id. § 1755, paras. 1 & 2.)

A request for adoption is granted only if the adoption is in the best interest of the child. (Id. § 1741, para. 1.) The family court must decide on a case-by-case basis and make a prediction. (Id. § 1752.) It must conduct the necessary inquiries to establish the facts that are relevant to the decision ex officio. (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit [FamFG] [Act on Proceedings in Family Matters and in Matters of Noncontentious Jurisdiction], Dec. 17, 2008, BGBl. I at 2586, 2587, as amended, § 26, German Laws Online website.) The family court is supported in its inquiries by adoption agencies and youth welfare offices. (Id. §§ 189, 194.)

Facts of the Case

Complainant no. 1 is the biological mother of two minor children to be adopted. The biological father of the children, who had been married to the mother, died in 2006. Since 2007, the mother and complainant no. 4 have been cohabiting. According to their testimony, they did not get married because complainant no. 1 would otherwise lose her widow’s pension, which she needs in order to live. The couple had a son together in 2009. (BVerfG para. 14.) In October 2013, they requested that the district court declare the two minor children their joint children. However, the district court denied the request, stating that there was no joint adoption for unmarried persons. Further appeals remained unsuccessful. (Id. at 15–18.)

Decision

The Federal Constitutional Court held that the Civil Code provisions at issue in the case do not violate article 6, para. 2 of the Basic Law (parental right) or article 2, paragraph 1 in conjunction with article 6, paragraph 2 of the Basic Law (right to the guarantee of parental care and upbringing); however, the Civil Code provisions do violate the equal treatment clause of article 3, paragraph 1 of the Basic Law, because they unjustifiably disadvantage children in families in which the couple are not married. (Id. at 48 & 61.)

The Federal Constitutional Court reiterated that for a difference in treatment in such a case to be justified, it must pass a strict proportionality test. (Id. at 65.) By categorically excluding a joint adoption in families in which the couple are not married without examining the particular circumstances of the case, children in such families are disadvantaged. It negatively affects the development of their personalities and excludes the possibilities and advantages that would have been available by allowing the factual parent to become a joint legal parent. (Id. at 66.)

The Court stated that the aim of the legislature—to avoid unfavorable family situations and to limit adoptions to stable relationships—is legitimate. (Id. at 76.) However, in the case of stepchild adoptions, the child already lives with the nonbiological parent, and the complete exclusion of stepchild adoptions therefore does not achieve the desired aim. (Id. at 78 & 82.) Furthermore, even though a marriage generally signifies stability, the current legal provisions assume that relationships of unmarried couples are never stable, which does not reflect reality. (Id. at 96, 97 & 120.) The Court held that a complete exclusion of unmarried couples from stepchild adoption is not justified, because less restrictive means could achieve the desired purpose to limit adoptions to stable relationships. (Id. at 102.) The Court suggested that the legislature could ensure that the best interests of the child were protected and that the child would grow up in a stable relationship by providing for an adoption framework based on specific stability prognoses in case-by-case decisions. (Id. at 105.) It added that, in addition to an existing marriage, the legislature may use alternative stability indicators such as a minimum relationship duration. (Id. at 106, 107 & 122.) Finally, the Court pointed out that an adoption request is always decided on a case-by-case basis. (Id. at 122.)

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