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Australia: Legislation Preventing Child Sex Offenders from Traveling Overseas Enacted

(June 29, 2017) On June 26, 2017, the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) received royal assent, following its passage by the Australian Parliament on June 20, 2017. (Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth), Federal Register of Legislation website; Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited June 28, 2017).)

The amendments in the Act allow a competent government authority to request that the Minister of Foreign Affairs and Trade refuse to issue, cancel, or order the surrender of a person’s Australian passport if that person’s name is entered on a child protection offender register of an Australian state or territory and has reporting obligations in connection with that entry; these persons are referred to as  “reportable offenders.” (Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth) sch 1 items 1-12, amending Australian Passports Act 2005 (Cth) & items 14-21, amending Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), both Federal Register of Legislation website).) In addition, such reportable offenders who leave Australia without permission from a competent authority can now be charged with a federal offense entailing a term of imprisonment of five years. (Id. sch 1 item 13, amending Criminal Code Act 1995 (Cth), Federal Register of Legislation website.) ”Competent authority” includes state and territory law enforcement agencies. (Australian Passports Act 2005 (Cth) s 12(3) & Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 13(2).)

The Explanatory Memorandum that accompanied the bill states that the purpose of the amendments is to prevent reportable offenders ”from travelling overseas to sexually exploit or sexually abuse vulnerable children in overseas countries where the law enforcement framework is weaker and their activities are not monitored.” (Explanatory Memorandum, Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Cth) 2, Parliament of Australia website.) It further states that existing measures have “proven insufficient to address the risk of overseas offending by Australian registered child sex offenders” and that, in 2016, “more than 770 reportable offenders travelled overseas, often without complying with obligations to notify police of their travel.” (Id.)

Under the previous provisions, a government authority could only recommend that a child sex offender’s passport be refused, cancelled, or surrendered if he or she was assessed as being likely to cause harm, and such a finding was subject to review by the Administrative Appeals Tribunal. (Id.) The new provisions in the Act require that the Minister deny a passport to a reportable offender when requested by a competent authority, and such denials are mandatory and not subject to merits review. (Id.)

In announcing the introduction of the bill in May 2017, the Minister for Justice, Michael Keenan, said that

this is the strongest crackdown on child sex tourism ever. No country has ever taken such decisive and strong action to stop its citizens from going overseas, often to vulnerable countries, to abuse kids, so this is absolutely a world first. We know that we’ll be denying passports to around 20,000 people who currently have reporting obligations under the ANCOR [Australian National Child Offender Register] and about 2500 people will be added every year and we will continue to deny them passports whilst they have those reporting obligations. (Transcript, Joint Press Conference, Julie Bishop & Michael Keenan, Parliament House, Canberra (May 30, 2017), Minister for Foreign Affairs website.)

The Australian child protection offender reporting scheme was established by legislation enacted in each state and territory. It “requires child sex offenders, and other defined categories of serious offenders against children, to keep police informed of their whereabouts and other personal details for a period of time after they are released into the community.” (National Child Offender System, AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION (last updated June 5, 2017).) The ANCOR “allows authorised police officers to register, case manage and share information about registered persons.” (Id.) The individual state and territory legislation sets out the registrable offenses and the reporting obligations of registered offenders in each jurisdiction. (Offender Registration Legislation in Each Australian State and Territory, AUSTRALIAN INSTITUTE OF FAMILY STUDIES (last updated June 2013).)

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European Union: “Milk” Cannot Be Used to Market Purely Plant-Based Products

(June 27, 2017) On June 14, 2017, the European Court of Justice (ECJ) held that the term “milk” and other milk product names cannot, in principle, be used to designate a purely plant-based product even if clarifying or descriptive terms indicating the plant origin of the product concerned are used (e.g., tofu butter). The Court added that unless it is mentioned on a list of exceptions appended to the relevant European Union law, Commission Decision 2010/791, the term “milk” and other milk product names are reserved for “animal products” as defined in article 78, paragraph 2, and annex VII, part III, of Regulation No. 1308/2013 on agricultural products’ markets.  (Case C‑422/16, Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH (June 14, 2017), INFOCURIA; Commission Decision of 20 December 2010 Listing the Products Referred to in the Second Subparagraph of Point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 (Recast) (Notified Under Document C(2010) 8434) (Commission Decision 2010/791/EU), 2010 O.J. (L 336) 55, EUR-LEX; Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 Establishing a Common Organisation of the Markets in Agricultural Products and Repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, 2013 O.J. (L 347) 671, EUR-LEX.)

The ECJ stated that this interpretation of the relevant legislation was consistent with both the principle of proportionality (article 5 of the Treaty on European Union) and the principle of equal treatment. (Case C-422/16, ¶ 48; Consolidated Version of the Treaty on European Union (TEU), 2012 O.J. (C 326) 13, EUR-LEX.) With regard to the principle of proportionality, which requires EU measures to meet legislative objectives without exceeding the limits of what is appropriate and necessary, the Court said that adding descriptions or explanations on products that do not meet requirements cannot eliminate the likelihood of confusion on the part of consumers. (Case C-422/16, ¶ 48.) With regard to the principle of equal treatment, the Court reiterated that the principle is only violated when comparable situations are treated differently and different situations are treated alike unless objectively justified.  In the Court’s view, the fact that producers of vegetarian or vegan substitutes for meat or fish are subject to less restrictions than producers like TofuTown does not violate the principle of equal treatment, because those  meat and fish substitutes are dissimilar to the milk and milk products substitutes. (Case C‑422/16, ¶¶ 49-50.)

Facts of the Case

The parties in the case were the Verband Sozialer Wettbewerb eV (VSW), a German association whose responsibilities include combatting unfair competition, and TofuTown GmbH (TofuTown), a company that produces and distributes vegetarian and vegan foodstuffs. (Case C‑422/16, ¶ 15.) VSW alleged that TofuTown confused consumers by marketing its purely plant-based products using “Soyatoo tofu butter,” “veggie cheese,” and other similar names, thereby infringing the German Act Against Unfair Competition in conjunction with Regulation No. 1308/2013. (Id. at ¶ 16; Gesetz gegen den unlauteren Wettbewerb [UWG] [Act Against Unfair Competition], Mar. 3, 2010, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 254, as amended, § 3a, GERMAN LAWS ONLINE; Act Against Unfair Competition (as last amended by the Act of Feb. 16, 2016), GERMAN LAWS ONLINE.)

VSW therefore brought an action for a prohibitory injunction against TofuTown before the Regional Court in Trier, Germany (Landgericht Trier). (Case C‑422/16, ¶ 16.) The Regional Court Trier stayed the proceedings and referred the question on how to interpret the relevant EU legislation with regard to the use of the term “milk” and the designations for milk products to the ECJ for a preliminary ruling, based on article 267 of the Treaty on the Functioning of the European Union. (Id. ¶ 19; Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326) 47 EUR-LEX.)

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Australia: National Firearms Amnesty to Commence

(June 27, 2017) On June 16, 2017, the Australian Minister for Justice, Michael Keenan, announced the details of a National Firearms Amnesty that will commence on July 1, 2017, and run for three months until September 30, 2017. (Press Release, Michael Keenan, National Firearms Amnesty Starts on July 1 (June 16, 2017), Minister for Justice website.) During the amnesty period, “anyone with unwanted and unregistered firearms or firearm-related items can legally dispose of or register them at approved drop-off points in each state and territory.” (Id.) The Minister noted that “[o]utside of the amnesty period, anyone caught with an unregistered firearm could face a fine of up to $280,000 [about US$211,300], up to 14 years in jail, and a criminal record.” (Id.)

This is the first nationwide amnesty since a one-year national amnesty and buy-back program was run starting on October 1, 1996. Since that time, individual states and territories have had various firearms amnesties. For example, the government of South Australia established an amnesty that was to run from December 1, 2015, to September 30, 2017, and this will now join the National Firearms Amnesty from July 1. (Firearms Amnesty, SOUTH AUSTRALIA POLICE (last visited June 22, 2017).)

The 1996-1997 national buy-back program was held pursuant to the National Firearms Agreement that was reached between the federal and state and territory governments following the Port Arthur massacre of April 28, 1996, in which 35 people were killed by a lone gunman. During the period of that amnesty, “[m]ore than 640,000 prohibited firearms were surrendered nationwide as part of the buyback program. In addition, it was reported that about 60,000 nonprohibited firearms were voluntarily surrendered without compensation.” (Kelly Buchanan, Firearms-Control Legislation and Policy: Australia, LAW LIBRARY OF CONGRESS (Feb. 2013).) The National Firearms Agreement also resulted in substantial changes being made to the gun control laws of each state and territory. (Id.)

The upcoming amnesty has arisen amid concerns about the number of illegal firearms in the country, particularly in light of events such as the Lindt Cafe siege in Sydney in December 2014 that involved a gunman carrying a weapon that was subsequently found to likely have been a “grey market” weapon. This term refers to unregistered weapons that were not surrendered as part of the 1996-1997 buy-back program. (State Coroner of New South Wales, Inquest into the Deaths Arising from the Lindt Cafe Siege: Findings and Recommendations 128-29 (May 2017).) In discussing the new amnesty, Keenan stated:

[c]learly the fact [is] we’ve got a deteriorating national security environment, we’ve got an environment where there has been five terrorists attacks on our soil and sadly in the vast majority of those cases it has been an illegal firearm that’s been used. Clearly that makes this top of mind and why we want to make sure we can clear as many illegal firearms from the community as possible. (Matthew Doran, Government Establishes New National Gun Amnesty to Rid Community of Illegal Firearms, ABC NEWS (June 16, 2017).)

A website created for the amnesty also refers to the Lindt Cafe siege, stating:

Unregistered firearms also carry risks for your community. Although unregistered firearms are not usually held by people with criminal intent, unaccounted for firearms do make their way into the hands of people who use them for criminal purposes. Unregistered firearms that end up in the hands of criminals are very difficult to recover, meaning they can pose a greater threat than registered firearms that are lost or stolen. For example, the shotgun used by Man Haron Monis during the Lindt Café Siege was unregistered, and impossible to trace. (About the Amnesty, National Firearms Amnesty 2017 website (last visited June 22, 2017).)

The website also states that “[t]he Australian Criminal Intelligence Commission estimates there are more than 260,000 firearms in Australia’s illicit firearms market. The use and movement of illicit market firearms is a national problem; the amnesty is one of several initiatives being used to address firearm-related crimes and threats.” (Id.)

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Egypt/Saudi Arabia: Egyptian Parliament Ratifies Maritime Border Demarcation Agreement

(June 26, 2017) On June 14, 2017, in a general session, the Egyptian Council of Representatives (the parliament) ratified the maritime border demarcation agreement between Egypt and Saudi Arabia. Based on this bilateral agreement, Egypt will cede its territorial rights to two Red Sea islands (Tiran and Sanfair) to Saudi Arabia. (Egypt Parliament to Vote on Islands Deal After Defence Committee Approval, NEW ARAB (June 14, 2017).)

The Council’s final vote comes after the approval of the agreement by the  legislative and constitutional affairs committee and the national security and defense committee. (Gamal Essam El-Din, Egypt Parliament to Hold Final Vote on Red Sea Island Deal Wednesday, AL-AHRAM (June 14, 2017).) Thirty-five out of the 43 members of the legislative and constitutional affairs committee voted in a favor of the bilateral agreement. After approving the agreement, the Committee referred it to the Council for a vote in a general session. (Gamal Essam El-Din, Egyptian Parliamentary Committee Approves Saudi Red Sea Islands Deal, Refers It for Final Vote, AL-AHRAM (June 13, 2017).)

Despite the Supreme Administrative Court having issued a final decision repealing the maritime border agreement in January of this year, the Council of Representatives ignored the Court and went ahead and discussed the agreement’s provisions. (Farah Bahgat, Tension Between Judicial and Legislative Branches Following Abdul Aal’s Statements, DAILY NEWS (June 14, 2017); George Sadek, Egypt/Saudi Arabia: Supreme Administrative Court Rejects Government Appeal in Red Sea Islands Agreement Case, GLOBAL LEGAL MONITOR (Jan. 25, 2017).)  The Chairman of the Council, Ali Abdul Aal, commented on the Supreme Administrative Court’s decision by saying that the parliament would not consider any judicial verdicts regarding the Red Sea islands agreement. (Bahgat, supra.)

Reactions to the Agreement

The agreement has stirred a lot of controversy on legal and constitutional grounds. Individuals opposing the agreement have argued that the parliament has no jurisdiction to discuss the provisions of the agreement because it should be put to a referendum based on paragraph 2 of article 151 of the Egyptian Constitution of 2014. (Sarah El-Sheikh, Parliament Approves ‘Red Sea Islands’ Agreement, DAILY NEWS (June 14, 2017).) That provision states: “[w]ith regards to any treaty of peace and alliance, and treaties related to the rights of sovereignty, voters must be called for a referendum, and they are not to be ratified before the announcement of their approval in the referendum.” (The Egyptian Constitution of 2014, art. 151(2), Constitute Project website.) Paragraph 3 of the same article, moreover, prohibits the parliament from discussing a treaty that will lead to the concession of the state’s territories: “[i]n all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which leads to concession of state territories.” (Id. art. 151(3).) Finally, the agreement’s opponents claim that the parliament has no right to discuss an agreement deemed invalid by the Supreme Administrative Court. (El-Sheikh, supra.)

On the other hand, individuals supporting the agreement argue that paragraph 1 of article 151 of the Constitution grants the parliament the authority to discuss agreements with foreign states. (Id.) Paragraph 1 states, “[t]he President of the Republic represents the state in foreign relations and concludes treaties and ratifies them after the approval of the House of Representatives.” (Constitution, art. 151(1).) In refutation of the opponents’ arguments, supporters of the agreement commented that the two Red Sea Islands were not originally part of Egypt, but were under Saudi control and part of the Saudi territories until Saudi Arabia gave them to Egypt for military protection during the 1950s, ‘60s, and ‘70s, during the wars against the state of Israel. (El-Sheikh, supra.)

The approval of the parliament has caused some street protests in Cairo. Some individuals protested the parliament’s decision in front of the building of the press syndicate in downtown Cairo; others arranged protests in front of the lawyers’ syndicate building nearby. (Id.)

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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 Baden-Württemberg – 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. The ECB derives this function from its role in the system of banking supervision in the EU, called the “Single Supervisory Mechanism” (SSM).  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.)

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.” (Id. ¶ 80; 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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